B-166695, JUN. 16, 1969

B-166695, JUN. 16, 1969

TO TECTONICS INC.:

REFERENCE IS MADE TO YOUR TELEGRAMS OF APRIL 16 AND 29 AND LETTER OF MAY 9, 1969, PROTESTING CONSIDERATION OF THE LATE BID FROM THE ROSS AND KENNEDY CORP. UNDER CORPS OF ENGINEERS INVITATION FOR BIDS NO. DACA 27-69- B-0030.

BIDS WERE OPENED AT 2 P.M. ON APRIL 16, 1969, AS SCHEDULED. THE BID FROM YOUR COMPANY WAS THE LOW BID. AT 2:53 P.M. A LOWER BID WAS RECEIVED FROM ROSS AND KENNEDY. THE BID WAS SENT AIRMAIL SPECIAL DELIVERY BY CERTIFIED MAIL.

ON APRIL 17, 1969, ROSS AND KENNEDY WAS NOTIFIED THAT ITS BID WAS RECEIVED AFTER THE OPENING OF BIDS AND THAT IT COULD NOT BE CONSIDERED UNLESS IT ESTABLISHED THAT THE LATE RECEIPT WAS DUE TO A DELAY IN THE MAIL WHICH WAS BEYOND ITS CONTROL. IN RESPONSE TO THE NOTIFICATION, ROSS AND KENNEDY FURNISHED THE CORPS OF ENGINEERS A PHOTOGRAPHIC COPY OF CERTIFIED MAIL RECEIPT NO. 153206 BEARING A POSTMARK "PITTSBURGH, PA MILLVALE BR. USPO APRIL 15, 1969" ABOVE WHICH THE TIME "1:45" WAS HANDWRITTEN. ADDITION, THE PITTSBURGH AND LOUISVILLE POSTMASTERS ADVISED THE CORPS OF ENGINEERS THAT IN THE NORMAL COURSE OF THE MAIL THE BID SHOULD HAVE ARRIVED PRIOR TO 2 P.M. ON THE DAY OF BID OPENING. FROM THE FOREGOING, THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE OF THE BID TO ARRIVE PRIOR TO THE BID OPENING TIME WAS DUE SOLELY TO A DELAY IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND THAT THE BID SHOULD, THEREFORE, BE CONSIDERED.

YOU CONTEND THAT ROSS AND KENNEDY WAS RESPONSIBLE FOR THE DELAY IN THAT THE WRONG ZIP CODE WAS USED ON THE BID ENVELOPE (04201 INSTEAD OF 40201) AND THAT THE LATE RECEIPT WAS CAUSED BY SUCH ERROR. IN ADDITION, YOU HAVE ALLEGED THAT LATE BID PROCEDURES HAVE NOT BEEN COMPLIED WITH, SPECIFICALLY PARAGRAPH 2-303.3 (B) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR),"SINCE THERE IS NO INITIAL BY A POSTAL EMPLOYEE ON THE CERTIFIED RECEIPT AND THERE IS NO EVIDENCE FURNISHED BY THE BIDDER OF THE CLOSING TIME OF THE POST OFFICE.'

THE LOUISVILLE, KENTUCKY, POSTMASTER CONDUCTED AN INVESTIGATION OF THE HANDLING OF THE ROSS AND KENNEDY BID ENVELOPE AND DID NOT INDICATE IN HIS MAY 8, 1969, REPORT THAT THE DELAY WAS DUE TO THE INCORRECT ZIP CODE. THIS REGARD HIS REPORT STATES: "SUBJECT ENVELOPE CONTAINED A BID ADDRESSED TO DISTRICT ENGINEER, U.S. ARMY ENGINEER DISTRICT, LOUISVILLE CORPS OF ENGINEERS, POST OFFICE BOX 59, LOUISVILLE, KENTUCKY 04201.' THE REPORT STATES FURTHER: "* * * IT HAS BEEN DETERMINED THE ENVELOPE ARRIVED AT STANDIFORD FIELD STATION AT 10:01 A.M., APRIL 16, 1969. IT WAS DISPATCHED FROM STANDIFORD AT 10:40 A.M. AND ARRIVED AT THE MAIN OFFICE AT 11:00 A.M. DUE TO VOLUME OF MAIL INCLUDED ON DISPATCH, APPROXIMATELY 150 POUCHES, LUNCH PERIODS, AND CHANGING OF TOURS FOR PERSONNEL, IT WAS IMPOSSIBLE TO PROCESS THIS MAIL AND GET IT TO THE SPECIAL DELIVERY SECTION EARLIER THAN TIME SHOWN ON RECEIVING STAMP, WHICH WAS 1:30 P.M. THIS STAMP IS SET EACH HALF HOUR AND IT IS SET HALF HOUR AHEAD EACH TIME. FOR EXAMPLE, AT 1:00 P.M., IT WAS SET AT 1:30 P.M. "THE U.S. ENGINEERS STREET ADDRESS IS 830 W. BROADWAY, WHICH IS CLASSIFIED AS RESIDENTIAL. SCHEDULED RUNS FOR SPECIAL DELIVERY MAIL RECEIVED ON TOUR 2, ARE 7:15 A.M., 10:15 A.M., AND 1:20 P.M. CONSEQUENTLY, THIS MAIL ARRIVING AT OUR OFFICE AT 11:00 A.M. COULD NOT LEAVE THIS OFFICE EARLIER THAN 1:20 P.M., EVEN IF IT HAD BEEN PROCESSED EARLIER.' MOREOVER, OUR OFFICE HAS CONTACTED THE LOUISVILLE POST OFFICE REGARDING THE INCORRECT ZIP CODE AND HAS BEEN INFORMED THAT IT WAS NOT THE CAUSE OF THE DELAY IN DELIVERY. THE LOUISVILLE POST OFFICE INDICATED THAT THE DELAY WAS DUE TO THE SPECIAL DELIVERY CARRIER WHO DEVIATED FROM HIS NORMAL ROUTE. THIS CONFORMS TO A REPORT OF MAY 15, 1969, FROM THE LOUISVILLE POST OFFICE TO THE CORPS OF ENGINEERS, WHICH STATES:"SINCE YOUR OFFICE IS LOCATED APPROXIMATELY TWO CITY BLOCKS FROM THE MAIN POST OFFICE, AND SPECIAL DELIVERY RUN LEAVES OUR OFFICE AT 1:20 P.M., YOUR DELIVERY SHOULD HAVE BEEN ONE OF THE FIRST STOPS FOR OUR MESSENGER. CONSEQUENTLY, IT IS MY OPINION SUBJECT ARTICLE SHOULD HAVE BEEN DELIVERED BEFORE 2:00 P.M. ON APRIL 16, 1969.'

THIS CASE IS DISTINGUISHABLE FROM B-159928, NOVEMBER 10, 1966, CITED IN THE PROTEST. IN THAT CASE THE DELAY WAS DUE TO THE IMPROPER ADDRESS. THIS CASE, IT WAS NOT.

ALTHOUGH IT APPEARS THAT YOU ARE CORRECT THAT THE TIME WRITTEN ON THE RECEIPT FOR CERTIFIED MAIL WAS NOT INITIALED BY A POSTAL EMPLOYEE AS PROVIDED IN ASPR 2-303.3 (B) (II) AND, THEREFORE, CANNOT BE CONSIDERED FOR PURPOSES OF DETERMINING THE TIME THE ENVELOPE WAS MAILED, THAT IS NOT MATERIAL IN THIS CASE. ASPR 2-303.3 (B) INDICATES THAT WHERE THERE IS NO TIME WRITTEN ON THE RECEIPT---

"THE TIME OF MAILING OF A LATE BID MAILED BY CERTIFIED MAIL FOR WHICH A POSTMARKED RECEIPT FOR CERTIFIED MAIL WAS OBTAINED SHALL BE DEEMED TO BE THE LAST MINUTE OF THE DATE SHOWN IN THE POSTMARK ON SUCH RECEIPT, EXCEPT WHERE (I) THE RECEIPT FOR CERTIFIED MAIL IDENTIFIES THE POST OFFICE STATION OF MAILING AND THE BIDDER FURNISHES EVIDENCE FROM SUCH STATION THAT THE BUSINESS DAY OF THAT STATION ENDED AT AN EARLIER TIME, IN WHICH CASE THE TIME OF MAILING SHALL BE DEEMED TO BE THE LAST MINUTE OF THE BUSINESS DAY OF THAT STATION * * * .' THE BRANCH AT WHICH THE BID WAS MAILED CLOSES AT 5:30 P.M. BUT, EVEN IF THE BID WERE CONSIDERED TO HAVE BEEN MAILED AS LATE AS THE LAST MINUTE OF THE DATE SHOWN ON THE POSTMARK ON THE RECEIPT, IT SHOULD HAVE ARRIVED ON TIME. IN THAT CONNECTION, THE LOUISVILLE POSTMASTER STATED IN THE MAY 8, 1969, REPORT THAT, EVEN IF THE BID ENVELOPE HAD BEEN DISPATCHED FROM PITTSBURGH AS LATE AS 9:25 THE MORNING OF APRIL 16, IT SHOULD HAVE ARRIVED ON TIME FOR THE SCHEDULED OPENING OF BIDS.

IN THE CIRCUMSTANCES, IT APPEARS THAT THE LATE BID FROM ROSS AND KENNEDY PROPERLY IS FOR CONSIDERATION. ACCORDINGLY, THE PROTEST IS DENIED.