B-144690, MAR. 7, 1961

B-144690, MAR. 7, 1961

TO CENTRE MANUFACTURING COMPANY, INC.:

WE REFER TO YOUR LETTER OF DECEMBER 21, 1960, WHICH FORWARDED A COPY OF YOUR TELEGRAM OF PROTEST UNDER IFB 2789-9 TO THE MARINE CORPS SUPPLY ACTIVITY, PHILADELPHIA, PENNSYLVANIA, AND YOUR LETTER OF DECEMBER 24, 1960, WHICH FURTHER EXPLAINED THE BASIS FOR YOUR PROTEST.

INVITATION FOR BIDS NO. 2789-9 WAS ISSUED ON NOVEMBER 14, 1960, BY THE MARINE CORPS SUPPLY ACTIVITY, PHILADELPHIA, PENNSYLVANIA, COVERING 107,300 RAINCOATS, WITH PROVISION FOR AN ADDITIONAL QUANTITY OF 107,300 TO BE AWARDED UNDER SMALL BUSINESS SET ASIDE PROCEDURES. TWELVE BIDS WERE RECEIVED AND OPENED AT 11:00 A.M. ON DECEMBER 16, 1960. A LATE BID FROM THE CABLE RAINCOAT COMPANY WAS ACCEPTED FOR CONSIDERATION WITH THE OTHER TWELVE BIDS AFTER THE CONTRACTING OFFICER DETERMINED THAT THE DELAY IN RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

A TELEGRAPHIC MODIFICATION OF THE BID OF CENTRE MANUFACTURING COMPANY, INC., WHICH CHANGED ITS BID TO AN "ALL OR NONE" BASIS WAS RECEIVED AT MCSA NO LATER THAN 10:30 A.M., DECEMBER 16, 1960, BUT WAS MISROUTED AND WAS NOT BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER UNTIL 11:10 A.M. THE MODIFICATION WAS ACCEPTED AS BEING TIMELY UPON DETERMINATION THAT THE DELAY WAS CAUSED BY THE MISROUTING WITHIN MCSA.

ON DECEMBER 20, 1960, PRIOR TO AWARD, THE CONTRACTING OFFICER RECEIVED A TELEGRAPHIC MODIFICATION FROM THE IBERIA MANUFACTURING COMPANY, ONE OF THE ORIGINAL TWELVE BIDDERS, REVISING ITS PRICE DOWNWARD BY 13 PERCENT ON THE TOTAL QUANTITY OF 107,300 RAINCOATS. IF THIS MODIFICATION IS ACCEPTED, IBERIA BECOMES THE LOW BIDDER ON THE TOTAL QUANTITY.

THE RECORD DISCLOSES THAT MR. C. L. CUNNINGHAM, PRESIDENT OF IBERIA, TELEPHONED THE TELEGRAM TO WESTERN UNION, ST. LOUIS, MISSOURI, AT 10:40 P.M. CENTRAL STANDARD TIME, DECEMBER 15, 1960, TO BE TRANSMITTED AS A NIGHT LETTER. THE TELEGRAM WAS RECEIVED BY WESTERN UNION IN PHILADELPHIA AT :31 A.M., EASTERN STANDARD TIME, DECEMBER 16, 1960. THE EXACT TIME OF DELIVERY AT MCSA IS NOT KNOWN ALTHOUGH THE TELEGRAM BEARS AN INK NOTATION "16/1600" WHICH NORMALLY WOULD HAVE BEEN MADE AT THE MAIN ENTRANCE SECURITY OFFICE AND WHICH TENDS TO INDICATE THAT THE TELEGRAM WAS DELIVERED AT THAT POINT AT 4 P.M. ON DECEMBER 16, 1960. THE FURTHER DELAY BEFORE THE CONTRACTING OFFICER RECEIVED THE TELEGRAM WAS CAUSED BY MISROUTING WITHIN MCSA.

THE WESTERN UNION TELEGRAPH COMPANY ADVISED BY LETTERS DATED DECEMBER 20 AND 22, 1960, THAT THE TELEGRAM FROM IBERIA WAS RECEIVED AT PHILADELPHIA AT 4:31 A.M. AND WAS ROUTED OUT FOR DELIVERY ON THE EARLY MORNING ROUTE OF DECEMBER 16 BETWEEN 7 AND 8 A.M.NO RECORD OF INDIVIDUAL DELIVERY TIMES WAS PREPARED AND THE EXACT TIME OF DELIVERY COULD NOT BE STATED, BUT WESTERN UNION EXPRESSED THE OPINION THAT THE DELIVERY WAS EARLY IN THE MORNING OF DECEMBER 16 SINCE ITS DELIVERY OFFICE IS ONLY A BLOCK FROM MCSA. IN ANY EVENT, WESTERN UNION STATED THAT THE RECEIPT OF THE TELEGRAM AT PHILADELPHIA AT 4:31 A.M., DECEMBER 16, WAS EVIDENCE OF THE FACT THAT THE TELEGRAM WAS FILED IN AMPLE TIME TO REACH THE CONTRACTING OFFICE BEFORE 11 A.M., DECEMBER 16, UNDER NORMAL CONDITIONS AND IBERIA WAS NOT RESPONSIBLE FOR THE DELAY.

PARAGRAPHS 2 AND 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (STANDARD FORM 30, OCTOBER 1957 EDITION) PROVIDES AS FOLLOWS:

"2. SUBMISSION OF BIDS.--- (A) BIDS AND MODIFICATIONS THEREOF SHALL BE ENCLOSED IN SEALED ENVELOPES ADDRESSED TO THE ISSUING OFFICE, WITH THE NAME AND ADDRESS OF THE BIDDER, THE DATE AND HOUR OF OPENING, AND THE INVITATION NUMBER ON THE FACE OF THE ENVELOPE. TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.

"4. LATE BIDS.--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

SECTION 2-305 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT IN DETERMINING WHETHER LATE TELEGRAPHIC MODIFICATIONS SHOULD BE EFFECTIVE, THE RULES STATED FOR LATE BIDS IN ASPR 2-303.2 THROUGH 2 303.5 SHALL APPLY. SECTION 2-303.4 IS AS FOLLOWS:

"2-303.4 TELEGRAPHIC BIDS. A LATE TELEGRAPHIC BID SHALL BE PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE RECEIVED IN TIME, EXCEPT WHERE THE BIDDER DEMONSTRATES BY CLEAR AND CONVINCING EVIDENCE WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY THAT THE BID, AS RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURE, SO AS NOT TO HAVE BEEN LATE.'

THE CONTRACTING OFFICER RECOMMENDED THAT THE LATE MODIFICATION FROM IBERIA BE ACCEPTED AND USED IN EVALUATION OF BIDS PRIOR TO AWARD.

IN YOUR TELEGRAM OF DECEMBER 21, 1960, YOU PROTEST ANY AWARD TO IBERIA AND CITE OUR DECISIONS B-141603, B-139221 AND B-135271 AS AUTHORITY FOR THE STATEMENT THAT THE BURDEN OF PROOF THAT A TELEGRAPHIC MODIFICATION WAS SENT IN SUFFICIENT TIME TO ALLOW FOR ANY NORMAL, USUAL OR FORESEEABLE DELAY IS ON THE BIDDER AND NOT ON THE GOVERNMENT.

BY LETTER OF DECEMBER 24, 1960, YOU EXPLAIN THE BASIS OF YOUR PROTEST AS FOLLOWS: (1) THAT PARAGRAPHS 2 AND 4 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" PREVENTS CONSIDERATION OF IBERIA'S TELEGRAM OF MODIFICATION; (2) THAT THE DELAY IN RECEIPT OF THE TELEGRAM WAS NOT DUE SOLELY "TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.' YOU SUBMIT THAT PARAGRAPH 2 OF THE TERMS AND CONDITIONS PERMITS A TELEGRAPHIC MODIFICATION TO BE CONSIDERED ONLY IF IT IS RECEIVED PRIOR TO THE BID OPENING AND PARAGRAPH 4 ALLOWS A LATE MODIFICATION TO BE CONSIDERED ONLY IF THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS. YOU CONTEND THAT A DELAY IN DELIVERY OF A TELEGRAM CANNOT BE ATTRIBUTED TO THE MAILS AND SHOULD NOT BE CONSIDERED. YOU FURTHER SUGGEST THAT IF THE DELAY WAS DUE TO A SNOW STORM IN THE MIDWESTERN AND EASTERN PARTS OF THE COUNTRY, IBERIA SHOULD HAVE RECOGNIZED THAT NORMAL TRANSPORTATION AND COMMUNICATION WOULD BE DISRUPTED AND SHOULD NOT HAVE WAITED UNTIL IT DID TO SEND THE TELEGRAM.

THE DECISIONS CITED IN YOUR TELEGRAM STATE THE RULE FOLLOWED BY OUR OFFICE WITH RESPECT TO ACCEPTANCE OF LATE TELEGRAPHIC MODIFICATIONS. THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. SINCE EXCEPTIONS TO THE RULE MAY TEND TO PREJUDICE THE RIGHTS OF OTHER BIDDERS, ANY BIDDER WHO SEEKS TO INVOKE AN EXCEPTION TO THE RULE MUST PROVE THAT HE IS WITHOUT FAULT OR NEGLIGENCE IN SENDING HIS MODIFICATION. THE BIDDER HAS THE BURDEN OF PROVING THAT HIS MESSAGE WAS FILED SUFFICIENTLY AHEAD OF THE TIME SET FOR BID OPENING TO ALLOW FOR ANY NORMAL, USUAL OR FORESEEABLE DELAYS AND THAT ITS FAILURE TO ARRIVE BEFORE THE BID OPENING WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION. 39 COMP. GEN. 586. THAT RULE WAS FOLLOWED MORE RECENTLY IN OUR DECISION B-144371, DATED NOVEMBER 16, 1960, WHERE WE STATED THAT THE RULE WAS IN ACCORDANCE WITH CURRENT PROCUREMENT REGULATIONS. SEE SECTIONS 2-303.4 AND 2-305, ARMED SERVICES PROCUREMENT REGULATION AND SECTIONS 1- 2.303-4 AND 1 2.305 FEDERAL PROCUREMENT REGULATIONS.

ALTHOUGH OUR DECISION B-135271, DATED APRIL 15, 1958, MADE A DISTINCTION BETWEEN LATE TELEGRAPHIC BIDS AND LATE MAIL BIDS, THE DISTINCTION WAS BASED ON INTERPRETATION OF A SPECIFIC TELEGRAPHIC BID CLAUSE WHICH ALLOWED AN EXCEPTION TO THE PROHIBITION AGAINST TELEGRAPHIC BIDS AS CONTAINED IN THE GENERAL TERMS AND CONDITIONS OF THE STANDARD INVITATION FORM. IN THE PRESENT CASE, THERE IS NO SUCH CLAUSE IN THE INVITATION AND THE DISTINCTION AS STATED IN B-135271 DOES NOT APPLY HERE. STANDARD FORM 30, AS INCORPORATED IN INVITATION FOR BIDS NO. 2789-9, PROVIDES IN PARAGRAPHS 2 AND 4 OF THE GENERAL TERMS AND CONDITIONS THAT TELEGRAPHIC MODIFICATIONS WILL BE ACCEPTED. WHEN INTERPRETED IN THE LIGHT OF CURRENT PROCUREMENT REGULATIONS AND DECISIONS OF OUR OFFICE, THOSE PARAGRAPHS ALLOW CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS, AS WELL AS LATE MAIL BIDS, IF THE BIDDER SUSTAINS THE BURDEN OF PROOF THAT IS PLACED UPON HIM REGARDING DELAY IN TELEGRAPHIC TRANSMISSION.

ON THE BASIS OF THE RECORD BEFORE US, WE ARE OF THE OPINION THAT THE IBERIA MANUFACTURING COMPANY HAS SUSTAINED THE BURDEN OF PROVING THAT ITS TELEGRAPHIC MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN AMPLE TIME TO REACH THE CONTRACTING OFFICER BEFORE THE BID OPENING, ALLOWING FOR ALL NORMAL, USUAL AND FORESEEABLE DELAYS. THE FACT THAT THE TELEGRAM WAS RECEIVED AT THE PHILADELPHIA WESTERN UNION OFFICE AT 4:31 A.M. ON DECEMBER 16, 1960, AND WAS ROUTED OUT FOR DELIVERY BETWEEN 7 AND 8 A.M. IS A CLEAR INDICATION THAT THE TELEGRAM WOULD HAVE REACHED THE CONTRACTING OFFICER BEFORE 11 A.M. UNLESS ABNORMALLY DELAYED. REGARDLESS OF THE SEVERITY OF THE WEATHER, WE BELIEVE THAT IT COULD NOT HAVE BEEN FORESEEN THAT DELIVERING A TELEGRAM A BLOCK FROM THE WESTERN UNION DELIVERY OFFICE WOULD TAKE MORE THAN A FEW MINUTES. THE DELAY CAUSED BY MISROUTING IBERIA'S TELEGRAM WITHIN THE MARINE CORPS SUPPLY ACTIVITY AND THE DELAYS IN HANDLING OTHER BIDS AND MODIFICATIONS MAY INDICATE A NEED FOR BETTER CONTROL OF INCOMING DOCUMENTS AT THE ACTIVITY, BUT THOSE DELAYS ARE SOLELY THE RESPONSIBILITY OF THE ACTIVITY AND CANNOT BE IMPUTED TO ANY OF THE BIDDERS INVOLVED.

FROM THE FACTS OF RECORD IN THIS CASE, WE FIND NO BASIS UPON WHICH WE CAN OBJECT TO THE CONTRACTING OFFICER'S RECOMMENDATION THAT THE TELEGRAPHIC MODIFICATION OF THE BID OF IBERIA BE ACCEPTED AND CONSIDERED IN EVALUATION OF BIDS. ACCORDINGLY, YOUR PROTEST IS DENIED.