B-143376, NOVEMBER 15, 1960, 40 COMP. GEN. 279

B-143376: Nov 15, 1960

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1960: REFERENCE IS MADE TO THE PROTEST OF THE COCHRANE CORPORATION AGAINST THE WARD OF A CONTRACT TO ANOTHER BIDDER BY THE PROCUREMENT OFFICE. REPORTS BY THE CONTRACTING OFFICER CONCERNING THE PROTEST WERE FORWARDED TO US BY THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS UNDER DATES OF AUGUST 15 AND OCTOBER 20. BY THE SUBJECT INVITATION PROPOSALS WERE SOUGHT ON THE DESIRED EQUIPMENT TO BE FURNISHED WITHIN 90 DAYS AFTER AWARD OF THE CONTRACT. THAT TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION. NO SUCH AUTHORITY WAS ISSUED BY THE PROCUREMENT OFFICIALS. TWO BIDS IN PROPER FORM WERE TIMELY RECEIVED IN THE ADMINISTRATIVE OFFICE. NOTIFIED THE CONTRACTING OFFICER BY TELEGRAM THAT IT WAS DISPATCHING.

B-143376, NOVEMBER 15, 1960, 40 COMP. GEN. 279

BIDS - TELEGRAPHIC - REJECTION TELEGRAPHIC BIDS SUBMITTED IN RESPONSE TO AN INVITATION WHICH PRECLUDES THE CONSIDERATION OF TELEGRAPHIC BIDS MAY NOT BE CONSIDERED FOR AWARD. 116567, AUGUST 25, 1953, OVERRULED.

TO THE SECRETARY OF THE ARMY, NOVEMBER 15, 1960:

REFERENCE IS MADE TO THE PROTEST OF THE COCHRANE CORPORATION AGAINST THE WARD OF A CONTRACT TO ANOTHER BIDDER BY THE PROCUREMENT OFFICE, FORT BELVOIR, VIRGINIA, UNDER INVITATION FOR BIDS NO. ENG-44-008-60 121, DATED JUNE 14, 1960, COVERING ONE WATER SOFTENER UNIT. REPORTS BY THE CONTRACTING OFFICER CONCERNING THE PROTEST WERE FORWARDED TO US BY THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS UNDER DATES OF AUGUST 15 AND OCTOBER 20, 1960.

BY THE SUBJECT INVITATION PROPOSALS WERE SOUGHT ON THE DESIRED EQUIPMENT TO BE FURNISHED WITHIN 90 DAYS AFTER AWARD OF THE CONTRACT. PARAGRAPH 2 (A) OF THE TERMS AND CONDITIONS OF THE INVITATION PROVIDES, IN PART, THAT TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION. NO SUCH AUTHORITY WAS ISSUED BY THE PROCUREMENT OFFICIALS.

TWO BIDS IN PROPER FORM WERE TIMELY RECEIVED IN THE ADMINISTRATIVE OFFICE, INCLUDING THAT OF THE PROTESTING BIDDER. HOWEVER, ON JUNE 23, 1960, ONE DAY PRECEDING THE DATE FIXED FOR THE OPENING OF BIDS, L. A. WATER CONDITIONING, INC., NOTIFIED THE CONTRACTING OFFICER BY TELEGRAM THAT IT WAS DISPATCHING, VIA AIRMAIL SPECIAL DELIVERY, AN OFFER TO DELIVER THE SPECIFIED EQUIPMENT FOR $8,708. THE TELEGRAM ARRIVED THE SAME DAY, BUT THE REFERRED-TO PROPOSAL WAS NOT RECEIVED UNTIL JUNE 27, 1960.

NO ONE OF THE THREE BIDS COMPLIED WITH THE DELIVERY REQUIREMENTS OF THE INVITATION. THE CONTRACTING OFFICER'S REPORT DATED OCTOBER 7, 1960, STATES THAT UNDER THOSE CIRCUMSTANCES CONSIDERATION OF ALL BIDS, AND ACCEPTANCE OF THE BEST AVAILABLE SUBSTITUTE, WAS UNDERTAKEN PURSUANT TO THE HOLDING IN OUR DECISION OF FEBRUARY 2, 1955, 34 COMP. GEN. 364. ALSO, THE BID OF L. A. WATER CONDITIONING, INC., BASED UPON ITS TELEGRAPHIC COMMUNICATION, WAS CONSIDERED AND ACCEPTED ON JUNE 29, 1960, BEING THE LOWEST OF THE THREE PROPOSALS, ON THE BASIS OF THE CONCLUSION REACHED IN OUR UNPUBLISHED DECISION, B-116567, DATED AUGUST 25, 1953, NOTWITHSTANDING THE PROHIBITION AGAINST CONSIDERATION OF TELEGRAPHIC BIDS, PREVIOUSLY MENTIONED, AS SET FORTH IN THE TERMS AND CONDITIONS OF THE INVITATION. THE LATTER DECISION IT WAS CONCLUDED THAT THE PROVISION IN THE INVITATION, THAT TELEGRAPHIC BIDS WOULD NOT BE CONSIDERED, COULD BE WAIVED AS AN INFORMALITY IN THAT PARTICULAR CASE, SINCE THE REASON FOR THE RULE (AN ADVANTAGE OVER OTHER BIDDERS) DID NOT EXIST. HOWEVER, SINCE THE DATE OF THAT DECISION WE HAVE HAD SEVERAL OCCASIONS TO CONSIDER CASES INVOLVING THE SAME QUESTION AND IT HAS BEEN UNIFORMLY HELD THAT TELEGRAPHIC BIDS, UNLESS AUTHORIZED, SHOULD BE REJECTED. ALTHOUGH THE DECISION, B-116567, OF AUGUST 25, 1953, HAS NOT HERETOFORE SPECIFICALLY BEEN OVERRULED, WE ARE OF THE OPINION THAT WHERE AN INVITATION PRECLUDES THE CONSIDERATION OF TELEGRAPHIC BIDS, ANY SUCH BIDS SHOULD BE DISREGARDED. WE FEEL THAT THIS RULE, IF UNIFORMLY FOLLOWED, WILL BEST SERVE THE INTERESTS OF THE UNITED STATES, AS WELL AS ALL POTENTIAL SUPPLIERS TO THE GOVERNMENT, AND THEREFORE THE DECISION, B-116567, OF AUGUST 25, 1953, SHOULD NO LONGER BE FOLLOWED.

IN THE CIRCUMSTANCES OF THIS CASE WE DO NOT FEEL THAT THE LEGALITY OF THE AWARD SHOULD BE FURTHER QUESTIONED. A COPY OF THIS DECISION IS BEING SENT TO THE PROTESTING BIDDER.