B-164194, MAY 24, 1968

B-164194, MAY 24, 1968

TO MR. DUNCAN P. LILES, JR.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1968, PROTESTING THE CONSIDERATION OF THE TELEGRAPHIC MODIFICATION RECEIVED UNDER FEDERAL HOUSING ADMINISTRATION INVITATION FOR BIDS 68-357 FROM GLOBE CONSTRUCTION COMPANY AFTER THE OPENING OF BIDS.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT WHICH SETS FORTH THE CIRCUMSTANCES OF THE LATE RECEIPT OF THE TELEGRAPHIC MODIFICATION AND THE BASIS UPON WHICH OUR OFFICE HAS CONCLUDED THAT THE MODIFICATION SHOULD BE CONSIDERED IN THE EVALUATION OF BIDS.

YOU HAVE PROTESTED AGAINST THE CONSIDERATION OF THE TELEGRAPHIC MODIFICATION ON SEVERAL GROUNDS HEREINAFTER CONSIDERED.

YOU STATE THAT PARAGRAPH 5 (D) OF THE "INSTRUCTION TO BIDDERS" PROVIDES THAT "MODIFICATIONS OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS BY THE TIME SET FOR OPENING OF BIDS" AND YOU POINT OUT THAT THE TELEGRAPHIC MODIFICATION SENT BY GLOBE CONSTRUCTION WAS NOT RECEIVED AT THE DESIGNATED OFFICE BY THE TIME SET FOR OPENING OF BIDS. HOWEVER, IN THAT CONNECTION, YOUR ATTENTION IS INVITED TO PARAGRAPH 7 OF THE ,INSTRUCTIONS TO BIDDERS" WHICH PROVIDES THAT MODIFICATIONS RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE OPENING OF BIDS WILL BE CONSIDERED IF "IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.' IN THIS CONNECTION, SEE, ALSO, FPR SECS. 1-2.305 AND 1- 2.303. AS INDICATED IN THE ENCLOSED LETTER TO THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, THE LATE RECEIPT OF THE TELEGRAPHIC MODIFICATION IN THE CONTRACTING SECTION HAS BEEN DETERMINED TO BE DUE TO MISHANDLING BY THE DEPARTMENT'S CORRESPONDENCE AND MAIL BRANCH.

THE REQUIREMENT THAT THE BIDDER MUST PROVIDE SUFFICIENT TIME FOR THE TELEGRAPHIC MODIFICATION TO REACH THE OFFICE DESIGNATED IN THE INVITATION HAS BEEN MET IN THIS CASE, SINCE THE TELEGRAM WAS RECEIVED IN THE DEPARTMENT'S MAILROOM MORE THAN AN HOUR BEFORE BID OPENING AND COULD HAVE BEEN COMMUNICATED TO THE CONTRACTING SECTION PROMPTLY, BUT FOR THE FAILURE OF THE MAILROOM TO FOLLOW THE PROCEDURES PRESCRIBED FOR HANDLING INCOMING TELEGRAMS.

YOU STATE THAT THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND THE FEDERAL PROCUREMENT REGULATIONS PROVIDE THAT LATE PROPOSALS MUST BE REJECTED EXCEPT WHEREE CONSIDERATION WOULD BE OF EXTREME IMPORTANCE TO THE GOVERNMENT AS WHERE THE PROPOSAL EMBODIES AN IMPORTANT SCIENTIFIC BREAKTHROUGH. APPARENTLY, YOU HAVE REFERENCE TO ASPR 3-506 DEALING WITH LATE PROPOSALS AND MODIFICATIONS THEREOF RECEIVED UNDER NEGOTIATION, AS DISTINGUISHED FROM ADVERTISED, PROCEDURES. IN THAT REGARD, YOU WILL OBSERVE THAT THE CONSIDERATION OF A LATE PROPOSAL CONTAINING A SCIENTIFIC BREAKTHROUGH, ASPR 3-506 (C) (II), IS ONLY AN ALTERNATIVE TO PERMITTING CONSIDERATION OF LATE PROPOSALS IF PROVEN TO HAVE BEEN TIMELY MAILED OR TIMELY FILED WITH THE TELEGRAPH COMPANY, ASPR 3-506 (C) (III). IN ANY EVENT, THESE ASPR PROVISIONS HAVE NO APPLICATION TO A SOLICITATION UNDER ADVERTISED PROCEDURES PRESCRIBED BY FPR.

YOU HAVE STATED THAT GLOBE SHOULD HAVE REQUESTED WESTERN UNION TO TRANSMIT THE MESSAGE BY TELEPHONE WITH A WRITTEN TELEGRAPHIC CONFIRMATION. ALTHOUGH SUCH A PROCEDURE MIGHT HAVE RESULTED IN AN EARLIER COMMUNICATION OF THE TELEGRAM, IT IS NOT RELEVANT SINCE, AS INDICATED ABOVE, THE METHOD CHOSEN BY THE BIDDER SHOULD HAVE RESULTED IN TIMELY TRANSMISSION, BUT FOR THE MISHANDLING BY THE GOVERNMENT AFTER RECEIPT OF THE TELEGRAM.

THE FACT THAT THE TELEGRAM WAS NOT DELIVERED BY WESTERN UNION TO THE ROOM MENTIONED THEREIN HAS NO BEARING UPON THE MATTER SINCE THE DEPARTMENT'S MAILROOM PROCEDURES PROVIDE FOR THE RECEIPT OF TELEGRAMS ADDRESSED TO OTHER SECTIONS AND THE NOTIFICATION OF THE ADDRESSEE OF THE RECEIPT OF THE TELEGRAM.

YOU STATE THAT YOU HAVE BEEN TOLD BY WESTERN UNION THAT THE BIDDER SHOULD HAVE PROVIDED A MINIMUM OF 2 HOURS FOR THE DELIVERY OF THE TELEGRAM. HOWEVER, REGARDLESS OF WHAT REPRESENTATIONS MAY HAVE BEEN MADE TO YOU BY WESTERN UNION, THE FACT REMAINS THAT WESTERN UNION ACTUALLY DELIVERED THE TELEGRAM TO THE DEPARTMENT MAILROOM IN LESS THAN AN HOUR AND IT WOULD HAVE BEEN COMMUNICATED TO THE CONTRACTING SECTION TIMELY HAD IT NOT BEEN MISHANDLED BY THE MAILROOM AFTER ITS RECEIPT.

YOU CONTEND THAT IT IS STANDARD PROCEDURE AND NOT UNUSUAL FOR THE MAILROOM TRANSMITTING OPERATOR TO GO TO LUNCH WITHOUT COMMUNICATING THE TELEGRAM. HOWEVER, THE STANDARD PROCEDURES ARE TO THE CONTRARY SINCE THE CORRESPONDENCE AND MAIL BRANCH PROCEDURES FOR HANDLING INCOMING TELEGRAMS PROVIDE FOR TIME-LOGGING THE TELEGRAM IMMEDIATELY UPON RECEIPT AND NOTIFYING THE ADDRESSEE OF THE TELEGRAM BY TELEPHONE.