B-135271, MARCH 10, 1958, 37 COMP. GEN. 595

B-135271, MARCH 10, 1958, 37 COMP. GEN. 595

CONTRACTS - BIDS - LATE - TELEGRAPHIC A TELEGRAPHIC BID CLAUSE IN AN INVITATION WHICH PERMITS SUBMISSION OF TELEGRAPHIC BIDS BUT PROVIDES THAT THEY MUST BE RECEIVED PRIOR TO BID OPENING IMPOSES ON BIDDERS WHO CHOSE TO USE TELEGRAPHIC FACILITIES THE RISK OF NONDELIVERY ON TIME AND PRECLUDES CONSIDERATION OF ANY LATE TELEGRAPHIC BIDS.

TO THE SECRETARY OF THE ARMY, MARCH 10, 1958:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 14, 1958, FROM THE ASSISTANT SECRETARY ( LOGISTICS), REQUESTING A DECISION AS TO THE PROPRIETY OF CONSIDERING LATE TELEGRAPHIC BIDS RECEIVED FROM THE J. H. RUTTER-REX MANUFACTURING COMPANY AND THE BAY GARMENT CORPORATION IN RESPONSE TO INVITATION FOR BIDS NO. QM/CTM/-36-243-58-381.

THE INVITATION FOR BIDS ISSUED ON DECEMBER 20, 1957, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT, PHILADELPHIA, PENNSYLVANIA, REQUESTED BIDS FOR 1,083,060 MAN-S, COTTON, UNIFORM TWILL, KHAKI, SHORT SLEEVE SHIRTS, AND PROVIDED THAT BIDS WERE TO BE OPENED ON JANUARY 9, 1958, AT 2:00 O-CLOCK P.M. EST. PARAGRAPHS 2 AND 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS ( STANDARD FORM 30, JUNE 1955 REVISION) 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.

ON PAGE 10 OF THE INVITATION IT IS PROVIDED AS FOLLOWS:

TELEGRAPHIC BID CLAUSE: TELEGRAPHIC BIDS MAY BE SUBMITTED IN RESPONSE TO THIS INVITATION FOR BIDS. TELEGRAPHIC BIDS MUST BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR THE OPENING OF BIDS. SUCH BIDS MUST SPECIFICALLY REFER TO THIS INVITATION FOR BIDS, AND MUST CONTAIN ALL THE REPRESENTATION AND INFORMATION REQUIRED BY THIS INVITATION FOR BIDS. FAILURE TO FURNISH, IN THE TELEGRAPHIC BID, THE REPRESENTATIONS AND INFORMATION REQUIRED BY THIS INVITATION FOR BIDS MAY REQUIRE REJECTION OF THE BID. SIGNED COPIES OF THE INVITATION FOR BIDS MUST BE FURNISHED IN CONFORMATION OF THE TELEGRAPHIC BIDS.

THE RECORD SHOWS THAT AT 2:00 O-CLOCK P.M. EST ON JANUARY 9, 1958, A TOTAL OF 15 BIDS HAD BEEN RECEIVED. IT IS REPORTED THAT DURING THE COURSE OF THE OPENING OF THE BIDS A TELEPHONE CALL WAS RECEIVED FROM THE MAIL AND RECORDS BRANCH OF THE QUARTERMASTER DEPOT ADVISING THE CONTRACTING OFFICER THAT TELEGRAPHIC BIDS HAD BEEN RECEIVED UNDER THE INVITATION THEN BEING OPENED. APPARENTLY THE MAIL AND RECORDS BRANCH WAS ADVISED TO HOLD THE BIDS. AT THE CONCLUSION OF THE BID OPENING THREE LATE BIDS WERE OPENED AND THE FOLLOWING FACTS ESTABLISHED:

A. TELEGRAPHIC BID OF LINWOOD OUTER WEAR, INC., ST. LOUIS, MISSOURI, FILED WITH WESTERN UNION IN THAT CITY AT 12:25 O-CLOCK P.M. CST, WAS RECEIVED BY TELETYPE SECTION, COMMUNICATIONS BRANCH, THIS AGENCY AT 2:05 O -CLOCK P.M. EST.

B. TELEGRAPHIC BID OF J. H. RUTTER-REX MFG. CO., INC., NEW ORLEANS, LOUISIANA, FILED WITH WESTERN UNION IN THAT CITY AT 12:28 O-CLOCK P.M. CST, WAS RECEIVED BY TELETYPE SECTION, COMMUNICATIONS BRANCH, THIS AGENCY AT 2:09 O-CLOCK P.M. EST. IT IS NOTED THAT THIS TELEGRAM WAS MARKED " RUSH MUST BE DELIVERED BEFORE 1:45 PM EST TODAY.'

C. TELEGRAPHIC BID OF BAY GARMENT CORPORATION, NEW ORLEANS, LOUISIANA, FILED WITH WESTERN UNION IN THAT CITY AT 12:37 O-CLOCK P.M. CST, WAS RECEIVED BY TELETYPE SECTION, COMMUNICATIONS BRANCH, THIS AGENCY AT 2:23 O -CLOCK P.M. EST. IT IS NOTED THAT THIS TELEGRAM WAS MARKED " MUST BE DELIVERED BY 1:45 PM EAST TODAY.'

INQUIRY WAS MADE OF THE CUSTOMER SERVICE OFFICE OF WESTERN UNION IN PHILADELPHIA REGARDING THE TRANSMISSION OF THE ABOVE TELEGRAMS AND THE CONTRACTING OFFICER WAS ADVISED THAT THERE HAD BEEN A DELAY IN THE TRANSMISSION OF THE TELEGRAMS FROM THE OFFICE OF WESTERN UNION IN PHILADELPHIA TO THE QUARTERMASTER DEPOT OVER THE TIE/LINE FACILITIES. THE DELAY WAS STATED TO HAVE BEEN APPARENTLY DUE TO THE QUANTITY OF MESSAGES HELD FOR TRANSMISSION DURING THE PERIOD INVOLVED. THE CONTRACTING OFFICER REPORTS THAT HE HAD PERSONAL KNOWLEDGE OF A TELEGRAM RECEIVED UNDER AN INVITATION FOR BIDS OPENED ON JANUARY 7, 1958, FROM A BIDDER LOCATED IN NEW ORLEANS, LOUISIANA. IN THAT CASE, THE TELEGRAM WAS FILED IN THE NEW ORLEANS OFFICE OF WESTERN UNION AT 12:35 O-CLOCK P.M. CST AND WAS RECEIVED IN THE PHILADELPHIA QUARTERMASTER DEPOT AT 1:51 O-CLOCK P.M. EST, AN ELAPSED TRANSMISSION TIME OF 16 MINUTES. IN VIEW THEREOF, AND SINCE THE BIDS OF BAY GARMENT CORPORATION AND THE J. H. RUTTER-REX MANUFACTURING COMPANY WOULD HAVE BEEN RECEIVED PRIOR TO THE BID OPENING IF THEY HAD BEEN TRANSMITTED TO THE QUARTERMASTER DEPOT IN 23 MINUTES AND 32 MINUTES, RESPECTIVELY, FROM THE TIME THEY WERE FILED IN THE OFFICE OF WESTERN UNION IN NEW ORLEANS, THE CONTRACTING OFFICER DETERMINED THAT THE BIDS WERE RECEIVED AFTER TIME OF BID OPENING BECAUSE OF DELAY IN TRANSMISSION AND THROUGH NO FAULT OF THE BIDDERS. THEREFORE, THE THREE TELEGRAPHIC BIDS WERE ACCEPTED FOR CONSIDERATION ON JANUARY 10, 1958. THE BID OF LINWOOD OUTER WEAR, INC., IS NOT IN LINE FOR AWARD SO THAT THE PROTEST AGAINST CONSIDERATION OF THIS BID MAY BE DISREGARDED.

ON JANUARY 13, 1958, A TELEGRAM WAS RECEIVED FROM RELIANCE MANUFACTURING COMPANY, NEW YORK, NEW YORK, PROTESTING THE ACCEPTANCE OF THE LATE BIDS. BID ANALYSIS AND EVALUATION FURNISHED BY THE COST AND PRICE ANALYSIS SECTION ON JANUARY 15, 1958, ESTABLISHED THAT PRICE WISE, J. H. RUTTER-REX MANUFACTURING COMPANY IS IN LINE FOR AWARD OF 620,620 UNITS AT A TOTAL CONTRACT PRICE OF $1,431,991.40, BAY GARMENT CORPORATION IS IN LINE FOR AWARD OF 200,000 UNITS AT A TOTAL CONTRACT PRICE OF $473,000, AND RELIANCE MANUFACTURING COMPANY IS IN LINE FOR AWARD OF THE BALANCE OF 262,440 UNITS AT A TOTAL CONTRACT PRICE OF $623,557.44. IF THE LATE TELEGRAPHIC BIDS ARE NOT CONSIDERED, RELIANCE MANUFACTURING COMPANY WILL BE IN LINE, PROVIDED IT ESTABLISHES CAPACITY, FOR THE ENTIRE AWARD AT A GROSS COST OF APPROXIMATELY $2,574,000.

ON JANUARY 24, 1958, THERE WAS RECEIVED AN AFFIDAVIT FROM J. H. RUTTER, PRESIDENT OF BOTH J. H. RUTTER-REX MANUFACTURING COMPANY, INC., AND BAY GARMENT CORPORATION, DATED JANUARY 22, 1958. MR. RUTTER AVERS THAT ON THE BASIS OF INFORMATION FURNISHED TO HIM BY REPRESENTATIVES OF WESTERN UNION HE HAD REASON TO BELIEVE THAT THE TELEGRAMS WOULD BE RECEIVED AT THE PHILADELPHIA QUARTERMASTER DEPOT PRIOR TO 2:00 O-CLOCK P.M. EST. THERE WAS ATTACHED TO THE AFFIDAVIT A STATEMENT BY THE DISTRICT MANAGER, WESTERN UNION, NEW ORLEANS, LOUISIANA, DATED JANUARY 22, 1958, THAT THE TRANSMISSION WAS COMPLETED TO PHILADELPHIA AT 12:34 O-CLOCK P.M. CST OF THE J. H. RUTTER-REX MANUFACTURING COMPANY MESSAGE AND AT 12:44 O-CLOCK P.M. CST OF THE BAY GARMENT CORPORATION MESSAGE. IT WAS STATED THAT NO TIME OF DELIVERY IS GUARANTEED BY WESTERN UNION AND THAT DELIVERY IS DEPENDENT ON "OPERATING CONDITION ON THE QUARTERMASTER DEPOT TIE/LINE AND OUR PHILADELPHIA CENTRAL OFFICE.' IN THIS RESPECT THE MESSAGES WERE MARKED FOR DELIVERY BY 1:45 O-CLOCK P.M. EST.

A LETTER DATED JANUARY 24, 1958, FROM THE MANAGER, CUSTOMER SERVICE WESTERN UNION, PHILADELPHIA, PENNSYLVANIA, CORROBORATES THE STATEMENT BY THE DISTRICT MANAGER, NEW ORLEANS, LOUISIANA, THAT THE MESSAGES OF J. H. RUTTER-REX MANUFACTURING COMPANY AND BAY GARMENT CORPORATION WERE FILED IN THE NEW ORLEANS OFFICE AT 12:28 O-CLOCK P.M. CST AND 12:37 O CLOCK P.M. CST, RESPECTIVELY, AND THAT TRANSMISSION WAS COMPLETED TO THE CENTRAL OFFICE OF WESTERN UNION, PHILADELPHIA, PENNSYLVANIA, AT 12:34 O-CLOCK P.M. CST AND 12:44 O-CLOCK P.M. CST, RESPECTIVELY.

THE PROTEST OF THE RELIANCE MANUFACTURING COMPANY IS ON THE BASIS THAT: (A) THE TELEGRAPHIC BID CLAUSE PROVIDES BY ITS TERMS THAT SUCH BIDS MUST BE RECEIVED IN THE OFFICE PRIOR TO THE TIME SPECIFIED FOR THE OPENING OF BIDS, (B) IF THE LATE BID CLAUSE OF STANDARD FORMS 30 AND 33 IS APPLICABLE, IT PERMITS CONSIDERATION OF LATE BIDS ONLY WHEN "FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS.' ( ITALICS SUPPLIED.) (C) IN ANY EVENT THE FACTS OF THIS CASE DO NOT SUPPORT A CONCLUSION THAT THE TELEGRAMS EXCEEDED NORMAL TRANSMISSION TIME, AND IN THE ABSENCE OF PROOF OF UNUSUAL DELAY THE LATE TELEGRAPHIC BIDS CANNOT BE CONSIDERED.

WE HAVE IN A NUMBER OF CASES HELD THAT TELEGRAPHIC MODIFICATIONS OF BIDS RECEIVED AFTER BID OPENING COULD PROPERLY BE CONSIDERED WHERE IT CLEARLY APPEARED THAT THE TELEGRAMS WERE FILED A SUFFICIENT TIME BEFORE THE SCHEDULED OPENING TO BE DELIVERED ON TIME IN THE NORMAL COURSE OF THE TELEGRAPH COMPANY'S BUSINESS; THAT THE DELAY WAS SOLELY THE FAULT OF THE TELEGRAPH COMPANY AND WITHOUT ANY FAULT OR NEGLIGENCE ON THE PART OF THE BIDDER; AND THAT THERE WAS NO POSSIBILITY OF PRIOR KNOWLEDGE BY THE BIDDER OF OTHER BIDS. IN MOST, IF NOT ALL, OF THOSE CASES THE PERTINENT INVITATION OR INSTRUCTIONS STIPULATED THAT TELEGRAPHIC MODIFICATIONS OF BIDS WOULD BE CONSIDERED IF RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. THAT STIPULATION WAS NOT CONSIDERED AS TANTAMOUNT TO AN EXPRESS PROHIBITION AGAINST THE CONSIDERATION OF SUCH TELEGRAPHIC MODIFICATIONS IF NOT RECEIVED ON TIME, WHERE THE DELAY WAS NOT CHARGEABLE TO THE BIDDER.

THE SPECIFIC AUTHORIZATION OF TELEGRAPHIC BIDS IN THE PRESENT INVITATION, HOWEVER, IS MOST EXPLICIT IN STATING THAT "TELEGRAPHIC BIDS MUST BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR THE OPENING OF BIDS.' ( ITALICS SUPPLIED.) SINCE THE AUTHORIZATION OF THE SUBMISSION OF TELEGRAPHIC BIDS IS IN ITSELF AN EXCEPTION TO THE GENERAL PROVISION OF PARAGRAPH 2 THAT TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION, WE FEEL THAT THE TERMS OF THE AUTHORIZATION SHOULD BE STRICTLY CONSTRUED, AND UNDER A STRICT CONSTRUCTION THERE CAN BE LITTLE ROOM FOR DOUBT THAT THE RISK OF NONDELIVERY ON TIME WAS IMPOSED ON THE BIDDERS WHO CHOSE TO USE TELEGRAPHIC RATHER THAN POSTAL FACILITIES FOR THE SUBMISSION OF THEIR BIDS.

IN THESE CIRCUMSTANCES, AND CONSIDERING THAT THE THREE LATE BIDS WERE FILED FOR TRANSMISSION ONLY 35, 32, AND 23 MINUTES BEFORE THE HOUR OF BID OPENING, WE CONCLUDE THAT THE BIDS IN QUESTION SHOULD NOT BE CONSIDERED.

THE PAPERS WITH THE EXCEPTION OF THE REPORT AND RECOMMENDATION OF THE CONTRACTING OFFICER DATED JANUARY 29, 1958, ARE RETURNED.