B-173727, NOV 15, 1971

B-173727, NOV 15, 1971

BID PROTEST - LATE BID - DELAY IN THE MAILS DECISION DENYING PROTEST BY BORG, INC., AGAINST REJECTION OF ITS LATE BID AND AWARD OF A CONTRACT TO CENCO PIPING CORP. UNDER AN IFB ISSUED BY THE ARMY ENGINEER DISTRICT, OMAHA, NEBRASKA. ALTHOUGH A POSTAL CLERK ADVISED PROTESTANT THAT THE BID MAILED AT O'HARE AIRPORT STATION, CHICAGO, ILLINOIS, BETWEEN 5:00 AND 5:30 P.M. JULY 20, 1971 WOULD REACH OMAHA, NEB. BEFORE JULY 21, 1971 AT 3:00 P.M., THE COMP. GEN. FINDS NO OBJECTION TO THE ADMINISTRATIVE DETERMINATION THAT THE BID WAS INEXCUSABLY LATE AND NOT FOR CONSIDERATION, NOTWITHSTANDING THAT THE NEW POSTAL PROGRAM INSTITUTED FOR SECURITY REASONS WHICH CAUSED THE DELAY WAS UNKNOWN TO PROTESTANT AND THE GENERAL PUBLIC. SEE B-173559, SEPT. 30, 1971.

TO BORG, INC.:

WE REFER TO YOUR LETTER OF SEPTEMBER 17, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. DACA45-71-B-0203, ISSUED BY THE U.S. ARMY ENGINEER DISTRICT (ARMY), OMAHA, NEBRASKA.

BIDS IN RESPONSE TO THE IFB WERE SCHEDULED TO BE OPENED AT THE OFFICE OF THE DISTRICT ENGINEER, OMAHA, AT 3 P.M. ON JULY 21, 1971. YOUR BID WAS DEPOSITED AT THE O'HARE AIRPORT STATION, CHICAGO, ILLINOIS, ON JULY 20, 1971, BETWEEN 5 AND 5:30 P.M., WITH INSTRUCTIONS THAT IT BE SENT REGISTERED AIRMAIL. THE PROCUREMENT ACTIVITY RECEIVED THE BID DURING THE MORNING OF JULY 22, 1971, THE DAY AFTER BID OPENING. ON THAT SAME DAY, A REPRESENTATIVE OF BORG WAS ADVISED THAT THE BID HAD BEEN RECEIVED LATE. AN AWARD OF THE CONTRACT TO CENCO PIPING CORP. WAS MADE PRIOR TO THE RESOLUTION OF THE PROTEST SINCE, IN THE OPINION OF THE PROCUREMENT ACTIVITY, THE PUBLIC EXIGENCY DID NOT PERMIT A DELAY IN THE AWARD OF THE CONTRACT.

PARAGRAPH 7 OF THE IFB'S INSTRUCTIONS TO BIDDERS DEALING WITH LATE BIDS STATES, IN PERTINENT PART, THAT:

"(A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS 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 AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; *** "

SEE, ALSO, PARAGRAPH 2-303.3(A)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

YOU CONTEND THAT THE BID WAS LATE DUE TO A DELAY IN THE MAIL FOR WHICH YOU WERE NOT RESPONSIBLE. YOU STATE THAT AT THE TIME THE BID WAS MAILED A POSTAL CLERK ADVISED THAT IT WOULD LEAVE ON A FLIGHT WHICH WOULD ASSURE TIMELY ARRIVAL OF THE BID AT THE BID OPENING SITE IN OMAHA. IN FURTHER SUPPORT OF YOUR CONTENTION, YOU HAVE SUBMITTED A LETTER FROM THE FOREMAN, WINDOW SERVICE, O'HARE AIRPORT STATION, WHICH CONFIRMS THAT THE DELAY THE BID ENCOUNTERED WAS THE FAULT OF THE UNITED STATES POSTAL SERVICE. THAT LETTER ADVISED THAT THE BID DID NOT LEAVE OMAHA UNTIL JULY 21, 1971, BECAUSE, UNKNOWN TO BORG OR THE GENERAL PUBLIC, A NEW SYSTEM OF HANDLING REGISTERED MAIL BROUGHT ABOUT BY INCREASED SECURITY CONSIDERATIONS RESULTED IN REGISTERED MAIL BEING DISPATCHED TO OMAHA ONLY ONCE A DAY.

IN DECISION B-173559, SEPTEMBER 30, 1971, COPY ENCLOSED, WE CONSIDERED A SOMEWHAT SIMILAR SITUATION AND CONCLUDED THAT WE COULD FIND NO OBJECTION TO THE ADMINISTRATIVE DETERMINATION THAT, IN CIRCUMSTANCES SUCH AS THESE, A BID WAS INEXCUSABLY LATE AND NOT FOR CONSIDERATION. THAT DECISION STATED, IN PERTINENT PART, AS FOLLOWS:

"WE HAVE INFORMALLY ASCERTAINED FROM A RESPONSIBLE OFFICIAL OF THE UNITED STATES POSTAL SERVICE THAT FOR THE PAST SEVERAL MONTHS A NEW POSTAL PROGRAM HAS BEEN IN EFFECT WHEREBY REGISTERED AND CERTIFIED AIRMAIL LETTERS ARE CONSOLIDATED FOR DISPATCH ON CERTAIN FLIGHTS FOR WHICH GUARD SERVICE IS PROVIDED WHILE THE MAIL IS AT THE TERMINAL. IT IS OUR UNDERSTANDING THAT THIS PROGRAM WAS INSTITUTED TO REDUCE THE NUMBER OF THEFTS OF THIS TYPE OF MAIL WHICH HAVE BEEN OCCURRING AT AIRPORT TERMINALS. WE WERE FURTHER ADVISED THAT THE GENERAL PUBLIC AND MANY POSTAL EMPLOYEES HAVE NOT BEEN MADE AWARE OF THIS NEW SECURITY PROGRAM.

"IN VIEW OF THIS INFORMATION, WE ARE UNABLE TO AGREE THAT YOUR BID WAS LATE DUE TO A DELAY IN THE MAILS. RATHER IT APPEARS THAT THE BID WAS MAILED TOO LATE TO BE DELIVERED ON TIME UNDER THE SECURITY PROCEDURES RECENTLY ESTABLISHED BY THE UNITED STATES POSTAL SERVICE FOR THE HANDLING OF CERTIFIED AND REGISTERED AIRMAIL. WE, THEREFORE, CONCLUDE THAT THE HANDLING OF THIS CATEGORY OF MAIL UNDER THE NEW SECURITY PROCEDURES, THOUGH NOT OF GENERAL PUBLIC KNOWLEDGE, REPRESENTED NORMAL, ROUTINE MAIL SERVICE.

HENCE, THERE WAS NOT INVOLVED HERE A DELAY IN THE MAILS WITHIN THE PURVIEW OF THE IFB LATE BID PROVISIONS AND APPLICABLE ASPR REGULATIONS, CITED ABOVE."

SEE, ALSO, DECISION B-173583, SEPTEMBER 29, 1971, COPY ENCLOSED.

ACCORDINGLY, THE PROTEST IS DENIED.