B-162390, NOV. 20, 1967

B-162390, NOV. 20, 1967

BIDS - LATE - MISHANDLING DECISION ON PROTEST OF F-AND-M SYSTEMS CO. AGAINST CONSIDERATION OF LATE BID OF WYLE LABORATORIES FOR DATA SYSTEM UNDER TWO-STEP PROCUREMENT BY HILL AIR FORCE BASE, UTAH. A LATE BID WHICH SHOULD HAVE ARRIVED AT THE BID OPENING OFFICE APPROXIMATELY 1 HOUR AND 20 MINUTES BEFORE BID OPENING TIME IF IT HAD BEEN PICKED UP FROM THE MAIL DISTRIBUTION OFFICE AND PROPERLY DELIVERED WAS PROPERLY DETERMINED TO HAVE BEEN MISHANDLED REGARDLESS OF THE SPECIFIC ACT RESULTING IN NON-RECEIPT. ALTHOUGH THE BID MIGHT HAVE RECEIVED EXPEDITED DELIVERY IF THE DATE AND TIME OF BID OPENING HAD BEEN ON THE ENVELOPE, SUCH FAILURE TO SUPPLY THIS INFORMATION IS NOT RELEVANT TO THE DETERMINATION OF MISHANDLING SINCE IT DID NOT CONTRIBUTE TO FAILURE OF DELIVERY TRUCK PERSONNEL TO EFFECT TIMELY DELIVERY.

TO RAIN, HARRELL AND EMERY:

WE REFER TO LETTERS DATED SEPTEMBER 8 AND OCTOBER 26, 1967, RESPECTIVELY, SUBMITTED ON BEHALF OF THE F AND M SYSTEMS CO. BY TELEGRAM AND LETTER DATED AUGUST 31 AND SEPTEMBER 7, 1967, RESPECTIVELY, THAT FIRM HAS PROTESTED AGAINST THE PROPOSED CONSIDERATION OF A MAILED BID OF WYLE LABORATORIES RECEIVED AFTER THE TIME DESIGNATED FOR THE OPENING OF THE SECOND STEP UNDER INVITATION FOR BIDS NO. F42650-68-B-0022. THE SUBJECT INVITATION IS A TWO-STEP FORMALLY ADVERTISED SOLICITATION ISSUED BY THE PROCUREMENT DIVISION, HILL AIR FORCE BASE, UTAH, FOR THE PROCUREMENT OF A DATA ACQUISITION SYSTEM AND SUPPORTING SERVICES AND DOCUMENTATION. CONSIDERATION OF THE WYLE LABORATORIES BID WILL DISPLACE THE APPARENT LOW BID OF THE F AND M SYSTEMS CO.

THE SECOND STEP WAS ISSUED ON AUGUST 15, 1967, AND STATED THAT SEALED BIDS WOULD BE RECEIVED IN THE BASE PROCUREMENT DIVISION UNTIL 1:00 P.M., MDST, ON AUGUST 29, 1967. PARAGRAPH 8 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS (STANDARD FORM 33A, JULY 1966) ADVISED ALL BIDDERS, IN RELEVANT PART, AS FOLLOWS:

"LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS. (THIS PARAGRAPH APPLIES TO ALL ADVERTISED SOLICITATIONS. IN THE CASE OF DEPARTMENT OF DEFENSE NEGOTIATED SOLICITATIONS, IT SHALL ALSO APPLY TO LATE OFFERS AND MODIFICATIONS (OTHER THAN THE NORMAL REVISIONS OF OFFERS BY SELECTED OFFERORS DURING THE USUAL CONDUCT OF NEGOTIATIONS WITH SUCH OFFERORS) BUT NOT TO WITHDRAWALS OF OFFERS. UNLESS OTHERWISE PROVIDED, THIS PARAGRAPH DOES NOT APPLY TO NEGOTIATED SOLICITATIONS ISSUED BY CIVILIAN AGENCIES.)

"/A) OFFERS AND MODIFICATIONS OF OFFERS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED) IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION OF AN OFFER WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.' BIDDERS WERE SPECIFICALLY REQUESTED TO ADDRESS OFFERS, AS FOLLOWS:

DIRECTORATE OF PROCUREMENT AND PRODUCTION

BASE PROCUREMENT DIVISION

HILL AFB, UTAH 84401

MARK FOR: F42650-68-B-0022. THIS INSTRUCTION WAS IN ACCORDANCE WITH PARAGRAPH 5 (A) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, WHICH FURTHER STATED IN PART THAT: "* * * THE OFFEROR SHALL SHOW THE HOUR AND DATE SPECIFIED IN THE SOLICITATION FOR RECEIPT, * * * AND THE NAME AND ADDRESS OF THE OFFEROR ON THE FACE OF THE ENVELOPE.'

SEVEN BIDS WERE RECEIVED, OPENED AT THE DESIGNATED TIME, AND THE F AND M SYSTEMS COMPANY WAS RECORDED AS THE APPARENT LOW BIDDER. AT 2:45 P.M., MDST, ON AUGUST 29, 1967, THE BID OF THE WYLE LABORATORIES WAS RECEIVED AT THE BASE PROCUREMENT DIVISION THROUGH THE BASE MAIL DISTRIBUTION SYSTEM. UPON INVESTIGATION, THE CONTRACTING OFFICER ESTABLISHED THAT THE WYLE BID WAS SENT BY REGISTERED AIRMAIL SPECIAL DELIVERY AND DEPOSITED WITH THE UNITED STATES POST OFFICE, LOS ANGELES AIRPORT BRANCH AT 3:35 P.M., PDST, ON AUGUST 28, 1967, AND WAS RECEIVED IN THE BASE MAIL DISTRIBUTION SYSTEM AT APPROXIMATELY 9:15 A.M. ON AUGUST 29, 1967, AS INDICATED BY THE TIME STAMP ON THE BID ENVELOPE. SINCE THE BID WAS REGISTERED MAIL IT WAS FORWARDED TO THE MANAGEMENT SERVICES DIVISION IN ACCORDANCE WITH MAIL DELIVERY PROCEDURES THEN IN EFFECT TO DETERMINE WHETHER THE ENVELOPE CONTAINED CLASSIFIED MATERIAL. THE CLERK IN THE MANAGEMENT SERVICES DIVISION RESPONSIBLE FOR MAKING SUCH DETERMINATION RECEIVED THE BID ENVELOPE AT 9:30 A.M. THE ENVELOPE WAS OPENED, AND DETERMINED NOT TO CONTAIN CLASSIFIED MATERIAL. (THE ENVELOPE DID NOT SPECIFY THE DATE AND TIME OF OPENING, BUT WAS OTHERWISE PROPERLY ADDRESSED.) THE CLERK PLACED THE ENVELOPE IN THE OUTGOING MAIL AT 10:30 A.M. FOR DELIVERY TO THE BASE PROCUREMENT DIVISION. IN THIS RESPECT, WE HAVE BEEN INFORMALLY ADVISED THAT THE ENVELOPE WAS PLACED IN THE PROPER RECEPTACLE FOR PICKUP BY THE MAIL DELIVERY TRUCK. FURTHER, IT APPEARS THAT THE CLERK, ALTHOUGH NOT REQUIRED TO DO SO, WILL NORMALLY CALL THE BASE PROCUREMENT DIVISION WHEN IT IS DETERMINED THAT AN ENVELOPE CONTAINS A BID SCHEDULED FOR OPENING ON THE DAY OF RECEIPT. THE BASE PROCUREMENT DIVISION WILL THEN DISPATCH SOMEONE TO PICK UP THE BID RATHER THAN WAIT FOR THE MAIL DELIVERY. THE CLERK ADVISED A REPRESENTATIVE OF F AND M SYSTEMS CO. THAT IF THE DATE AND TIME OF OPENING HAD BEEN PLACED ON THE ENVELOPE IT WOULD HAVE RECEIVED THIS EXPEDITED DELIVERY.

THE MAIL DELIVERY SCHEDULE IN EFFECT AT THE BASE, INSOFAR AS IS RELEVANT HERE, PROVIDED THAT MATTER PLACED IN THE MAIL AT 10:30 A.M. IN BUILDING 1297, WHICH CONTAINS THE MANAGEMENT SERVICES DIVISION, WOULD BE PICKED UP BETWEEN 11:18 A.M. AND 11:20 A.M. AND DELIVERED TO THE BASE PROCUREMENT DIVISION IN BUILDING 396 BETWEEN 11:40 A.M. AND 11:43 A.M. IT APPEARS THAT TWO PEOPLE ARE ASSIGNED TO THE DELIVERY TRUCK--- THE DRIVER AND ANOTHER PERSON WHO SORTS THE MAIL. ALL MAIL FOR THE PROCUREMENT DIVISION IS SORTED BY THE TIME OF ARRIVAL AT THE BASE PROCUREMENT DIVISION. INFORMATION WAS GENERATED AS TO THE LOCATION OF THE WYLE LABORATORIES BID ENVELOPE BETWEEN 0:30 A.M. AND 2:45 P.M. ON THIS BASIS, THE CONTRACTING OFFICER ADVISES THAT "IT CAN ONLY BE CONCLUDED THAT THE LETTER WAS NOT PROPERLY PICKED UP ON THE 11:18 A.M. PICKUP OR WAS NOT PROPERLY DELIVERED ON THE 11:43 A.M. DELIVERY.' IN EITHER CIRCUMSTANCE, IT IS THE CONTRACTING OFFICER'S CONCLUSION THAT THE BID WAS MISHANDLED BY THE GOVERNMENT WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT REGULATION 2- 303.2 (III).

YOU CONTEND THAT THE EVIDENCE FAILS TO ESTABLISH MISHANDLING, AND THAT EVEN ASSUMING MISHANDLING OCCURRED THE LATE RECEIPT WAS NOT DUE SOLELY TO MISHANDLING SINCE WYLE LABORATORIES FAILED TO PLACE THE DATE AND TIME OF OPENING ON ITS BID ENVELOPE.

INITIALLY, YOU DRAW ATTENTION IN YOUR LETTER OF OCTOBER 26, 1967, TO THE FACT THAT BOTH THE CONTRACTING OFFICER AND THE CLERK WHO PROCESSED THE BID ADVISED REPRESENTATIVES OF F AND M SYSTEMS CO. THAT FROM "TWO TO THREE HOURS" IS "NORMALLY" REQUIRED FOR DELIVERY OF MAIL FROM THE ADMINISTRATIVE SERVICES DIVISION TO THE BASE PROCUREMENT DIVISION. HOWEVER, THE RECORD ALSO INDICATES THAT THE F AND M SYSTEMS CO. REPRESENTATIVES WERE LATER ADVISED THAT SUCH OPINIONS WERE NOT BASED UPON AN ACTUAL EXAMINATION INTO THE TIME SPAN NECESSARY TO ACCOMPLISH DELIVERY. SUCH INVESTIGATION IS, IN ANY EVENT, CONTROLLING.

ON THE BASIS OF THIS INVESTIGATION, IT APPEARS THAT THE WYLE LABORATORIES BID SHOULD HAVE ARRIVED AT THE BASE PROCUREMENT DIVISION APPROXIMATELY 1 HOUR AND 20 MINUTES BEFORE THE SCHEDULED OPENING BUT FOR THE INTERRUPTION IN THE NORMAL DELIVERY PROCEDURE. IN THIS RESPECT, IT IS CLEAR THAT THE GOVERNMENT HAS AN OBLIGATION TO ESTABLISH REASONABLE PROCEDURES FOR THE PHYSICAL TRANSMISSION OF BIDS FROM THE POINT OF RECEIPT AT THE GOVERNMENT INSTALLATION TO THE DESIGNATED PLACE OF OPENING, AND TO INSURE THAT THE PROCEDURE SELECTED IS PROPERLY IMPLEMENTED. 42 COMP. GEN. 508. IN VIEW OF THE ADVICE THAT THE ENVELOPE WAS IN THE PROPER PLACE FOR PICKUP IT IS OUR OPINION THAT THE DETERMINATION OF MISHANDLING IS ENTIRELY CORRECT, REGARDLESS OF THE SPECIFIC ACT RESULTING IN THE NONRECEIPT OF THE BID AT THE BASE PROCUREMENT DIVISION AFTER THE 11:40 DELIVERY. MOREOVER, WHILE IT MAY BE INFERRED THAT THE WYLE LABORATORIES BID WOULD HAVE RECEIVED EXPEDITED DELIVERY IF THE DATE AND TIME OF THE SCHEDULED OPENING HAD BEEN PLACED ON THE BID ENVELOPE IN ACCORDANCE WITH PARAGRAPH 5 (A) OF THE SOLICITATION INSTRUCTION, WE CANNOT AGREE, AS YOU CONTEND, THAT THE FAILURE TO SUPPLY THIS INFORMATION IS, IN THE INSTANT SITUATION, RELEVANT TO THE DETERMINATION THAT THE BID WAS MISHANDLED UNDER THE ESTABLISHED DELIVERY PROCEDURES. CLEARLY, THE LACK OF SUCH INFORMATION DID NOT CONTRIBUTE TO THE FAILURE OF THE DELIVERY TRUCK PERSONNEL TO EFFECT TIMELY DELIVERY OF THE WYLE LABORATORIES BID.