B-156142, FEB. 19, 1965

B-156142, FEB. 19, 1965

TO TRIP CONSTRUCTION COMPANY, INC.:

THE DEPARTMENT OF THE ARMY, OFFICE OF THE CHIEF OF ENGINEERS, HAS FORWARDED FOR OUR CONSIDERATION THE LETTERS OF YOUR ATTORNEYS, DATED OCTOBER 29 AND DECEMBER 7, 1964, BY WHICH YOUR FIRM PROTESTS A PROPOSED AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS (IFB) NO. ENG-18-020- 65-24 TO THE LEONARD PEVAR COMPANY.

BIDS RECEIVED IN RESPONSE TO THE ABOVE INVITATION WERE OPENED AS SCHEDULED AT THE U.S. ARMY ENGINEER DISTRICT IN BALTIMORE, MARYLAND, ON FRIDAY, OCTOBER 23, 1964, AT 3:30 P.M. YOU SUBMITTED THE APPARENT LOWEST BASE BID OF $200,000, AND PEVAR SUBMITTED THE APPARENT SECOND LOWEST BASE BID OF $225,000. AT 4:15 P.M. OF THAT AFTERNOON A MESSENGER FROM THE WESTERN UNION TELEGRAPH COMPANY IN BALTIMORE, MARYLAND, DELIVERED A TELEGRAM FROM PEVAR TO THE PROCURING ACTIVITY WHICH REDUCED THAT COMPANY'S BID BY $45,000.

THE INVITATION CONTAINED THE FOLLOWING PROVISION:

"1. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN. 1964)

(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:

(I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

(II) THEY ARE SENT BY ... TELEGRAM IS AUTHORIZED; AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY ... BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; "

WHILE TELEGRAPHIC MODIFICATIONS OF BIDS WERE SPECIFICALLY AUTHORIZED UNDER PARAGRAPH 5/D) OF THE INSTRUCTIONS TO BIDDERS, YOU ASSERT THAT PEVAR'S TELEGRAPH MODIFICATION SHOULD NOT BE CONSIDERED IN THE EVALUATION OF ITS BID BECAUSE SUCH TELEGRAM WAS NOT RECEIVED UNTIL AFTER THE BIDS WERE OPENED.

THE RECORD ESTABLISHES THAT PEVAR TELEPHONED THE CONTENTS OF THE SUBJECT TELEGRAPH MESSAGE TO THE BALTIMORE OFFICE OF THE TELEGRAPH COMPANY, FROM UNIONVILLE, PENNSYLVANIA, ON OCTOBER 23, 1964, AT 2:55 P.M. THE DISTRICT MANAGER OF THE TELEGRAPH OFFICE IN BALTIMORE STATES THAT MESSAGES RECEIVED BY TELEPHONE FROM OUT-OF-TOWN LOCATIONS FOR TELEGRAPHIC TRANSMISSION WITHIN THE LOCAL BALTIMORE AREA ARE CONSIDERED OUT-OF-TOWN MESSAGES, AND THAT THE PROCEDURE FOR HANDLING MESSAGES WHICH ARE FILED FROM OUT OF TOWN IS FIRST TO TELEPHONE THE CONTENTS OF SUCH TO THE ADDRESSEE BEFORE ACTUAL PHYSICAL DELIVERY OF THE TELEGRAM. THE MANAGER FURTHER STATES THAT SINCE PEVAR'S MESSAGE WAS RECEIVED LOCALLY BY TELEPHONE, THE BALTIMORE OFFICE OVERLOOKED THE FACT THAT IT HAD ORIGINATED FROM OUT OF TOWN, AND THEREFORE DELIVERED THE TELEGRAM TO THE PROCURING ACTIVITY WITHOUT FIRST TELEPHONICALLY NOTIFYING THE ADDRESSEE OF THE CONTENTS OF THE MESSAGE. INVESTIGATION BY THE PROCURING ACTIVITY OF TELEGRAPHIC MODIFICATIONS RECEIVED BY IT DURING THE SIX MONTHS PRECEDING THE SUBJECT BID OPENING DISCLOSED THAT THE MEDIAN TIME WHICH ELAPSED FROM THE TIME A MESSAGE WAS RECEIVED BY THE BALTIMORE OFFICE OF WESTERN UNION TO THE TIME IT WAS TELEPHONICALLY TRANSMITTED TO THE SUBJECT BID OPENING ROOM, WAS 21 MINUTES. ONLY ONE OUT OF SEVENTEEN MESSAGES RECEIVED DURING THIS SIX MONTH PERIOD HAD NOT BEEN TELEPHONED TO THE BID OPENING OFFICE WITHIN 35 MINUTES OF ITS RECEIPT IN THE TELEGRAPH OFFICE.

THE LETTER DATED OCTOBER 29 FROM YOUR ATTORNEY SUCCINCTLY SETS FORTH THE LAW APPLICABLE TO THE ABOVE FACTS BY QUOTING THE FOLLOWING LANGUAGE FROM OUR DECISION 39 COMP. GEN. 586, 589:

"THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS OF BIDS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. EXCEPTIONS TO THE RULE TEND TO PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND IT IS THEREFORE INCUMBENT UPON ANY BIDDER WHO SEEKS TO INVOKE AN EXCEPTION TO PROVE THAT HE IS ENTIRELY WITHOUT FAULT OR NEGLIGENCE IN TRANSMITTING A LATE MODIFICATION TO HIS BID. AS INDICATED AT 35 COMP. GEN. 426, THE LATE BIDDER'S LACK OF KNOWLEDGE OF OTHER BIDS IS NOT ENOUGH. THE TELEGRAPHIC BID MODIFICATION MUST HAVE BEEN DEPOSITED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS, AND WHERE THERE IS SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE, THE BURDEN OF PROOF OF WHICH IS PLACED UPON THE BIDDER. UNDER THIS EXCEPTION IT IS NOT SUFFICIENT FOR A LATE BIDDER TO SHOW THAT HIS MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER OPTIMUM CONDITIONS. HE MUST SHOW THAT HIS MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL, OR FORESEEABLE DELAYS, AND THAT ITS FAILURE TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION.' ALSO, SEE PARAGRAPHS 2-305, 2- 303.2 AND 2 303.4, OF THE ARMED SERVICES PROCUREMENT REGULATION, THE EFFECT OF WHICH IS TO PERMIT CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION IF IT WAS TIMELY FILED AND ITS LATENESS IS DUE SOLELY TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER IS NOT RESPONSIBLE.

IN OUR VIEW, THE FACTS ABOVE STATED ARE ADEQUATE TO SUPPORT THE CONCLUSION THAT PEVAR'S TELEGRAM WOULD HAVE BEEN TIMELY DELIVERED IF THE TELEGRAPH OFFICE IN BALTIMORE HAD FOLLOWED NORMAL TRANSMISSION PROCEDURE, AND THAT THE DELAYED RECEIPT THEREFORE WAS DUE SOLELY TO DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. SEE B-153824, DATED APRIL 22, 1964. THE FACT THAT THE TELEGRAM WOULD NOT HAVE BEEN PHYSICALLY DELIVERED UNTIL AFTER BID OPENING IS NOT MATERIAL. SEE B- 152353, DATED NOVEMBER 7, 1963, CITING PARAGRAPH 2-304 OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH EXPRESSLY AUTHORIZES CONSIDERATION OF THE TIMELY TELEPHONIC TRANSMISSION BY THE RECEIVING TELEGRAPHIC OFFICE OF TELEGRAPHIC MODIFICATIONS.

ACCORDINGLY, WE FIND NO BASIS ON WHICH TO OBJECT TO THE PROCURING ACTIVITY'S CONSIDERING IN ITS EVALUATION OF BIDS THE LATE TELEGRAPHIC BID MODIFICATION FROM PEVAR, AND YOUR PROTEST THEREFORE IS DENIED.