B-143470, SEP. 2, 1960

B-143470, SEP. 2, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 3, 1960, FROM COLONEL CHARLES A. SANFORD, GS, CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, TRANSMITTING A REPORT CONCERNING THE PROTEST BY SHARP AND FELLOWS CONTRACTING COMPANY AGAINST THE POSSIBLE AWARD OF A CONTRACT TO THE W. H. NICHOLS COMPANY UNDER INVITATION FOR BIDS NO. AIV-41-014-60-124.

THE EVIDENCE BEFORE OUR OFFICE SHOWS THAT UNDER DATE OF MAY 27, 1960, THE PURCHASING AND CONTRACTING OFFICE, U.S. ARMY AIR DEFENSE CENTER, FORT BLISS, TEXAS, ISSUED THE CITED INVITATION FOR "REHABILITATION OF RAILROAD TRACKAGE" AT FORT BLISS, TEXAS, THE BIDS TO BE OPENED AT 9:00 M., (MST), ON JUNE 28, 1960. THE SPECIFICATIONS FOR THE PROJECT CONTAINED THE FOLLOWING TATEMENT: "RATES OF WAGES, PAGES SC-2 THRU SC-10, WILL BE ADDED PRIOR TO BID OPENING DATE.' THE WAGE RATES WERE ADDED TO THE SPECIFICATIONS BY AMENDMENT NO. 1, ISSUED JUNE 24, 1960. THE AMENDMENT ALSO EXTENDED THE BID OPENING TIME TO 3:00 P.M., (MST), ON JUNE 29, 1960, AND ADVISED BIDDERS THAT TELEGRAPHIC BIDS WOULD BE ACCEPTED AND CONSIDERED.

DURING THE AFTERNOON OF JUNE 27, 1960, AN INCREASE IN THE WAGE RATES OF LABORERS WAS RECEIVED IN THE OFFICE OF THE PURCHASING AND CONTRACTING OFFICER, AND THE INCREASED RATES WERE IMMEDIATELY DISPATCHED TO ALL PROSPECTIVE BIDDERS BY PRIORITY MESSAGE AS AMENDMENT NO. 2, WHICH ALSO PERMITTED TELEGRAPHIC BIDS.

THE PURCHASING AND CONTRACTING OFFICER REPORTED THAT AT APPROXIMATELY 9:00 A.M., (MST), ON THE MORNING OF JUNE 29, 1960, A MR. WILKINS OF THE NICHOLS COMPANY CALLED TO ADVISE THAT THE COMPANY WAS FILING A BID WITH THE WESTERN UNION OFFICE AT DALLAS, TEXAS, AND REQUESTED INFORMATION CONCERNING THE SUBMISSION OF A BID BOND AND CONFIRMING BID. THE CONTRACTING OFFICER ADVISED MR. WILKINS TO AIR MAIL HIS BID BOND AND CONFIRMING BID THAT DAY, AND TO INCLUDE THIS INFORMATION IN HIS TELEGRAPHIC BID. IN HIS REPORT IN THIS CASE THE CONTRACTING OFFICER STATED THAT ALTHOUGH THE REGULATIONS ARE VERY SPECIFIC CONCERNING LATE BID BONDS, HE FELT THAT IT WAS NECESSARY TO ALLOW BIDDERS TIME TO SUBMIT BID BONDS BY MAIL, SINCE A BID BOND COULD NOT ACCOMPANY A TELEGRAPHIC BID. DO NOT DISAGREE WITH THE PRACTICALITY OF THE CONTRACTING OFFICER'S VIEWS IN THIS REGARD. HOWEVER, A PROPER IMPLEMENTATION THEREOF WOULD REQUIRE THAT THE INVITATION ITSELF OR AN ADDENDUM SO INFORM ALL BIDDERS. IN VIEW OF THE SPECIFIC REQUIREMENTS IN THE INVITATION RESPECTING THE FURNISHING OF BID BONDS, WE FEEL THAT THE CONTRACTING OFFICER'S ADVICE TO THE NICHOLS COMPANY WAS ERRONEOUS.

THREE BIDS HAD BEEN RECEIVED AT THE TIME OF THE BID OPENING--- 3:00 P.M., (MST), JUNE 29, 1960. THE WM. A. SMITH CONTRACTING COMPANY, KANSAS CITY, KANSAS, AND SHARP AND FELLOWS CONTRACTING COMPANY, LOS ANGELES, CALIFORNIA, FURNISHED BID BONDS BY AIR MAIL WHICH WERE RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS. THE THIRD BIDDERS -- THE CAMPBELL CONSTRUCTION COMPANY, HOUSTON, TEXAS--- HAND CARRIED ITS BID TO THE OFFICE OF THE CONTRACTING OFFICER PRIOR TO THE BID OPENING TIME, AND ENCLOSED A BID BOND.

FOLLOWING THE OPENING OF THE BIDS, AND SINCE NO BID HAD BEEN RECEIVED FROM THE NICHOLS COMPANY, A CALL WAS MADE TO THE FORT BLISS WESTERN UNION OFFICE WHICH REVEALED THAT NO TELEGRAPHIC BID HAD BEEN RECEIVED BY THAT OFFICE.

IN VIEW OF THE EXISTING FACTUAL SITUATION, A CALL WAS MADE TO THE SHARP AND FELLOWS COMPANY, THE LOW BIDDER OF THE THREE BIDS RECEIVED PRIOR TO THE TIME SPECIFIED IN THE INVITATION FOR BIDS, ADVISING THAT THAT CONCERN WAS THE APPARENT LOW BIDDER, AND ASKING FOR VERIFICATION OF THE BID PRICE, ETC.

THE RECORD INDICATES THAT IMMEDIATELY FOLLOWING THE FOREGOING TELEPHONE CONVERSATION, A CALL WAS RECEIVED FROM MR. WILKINS OF THE NICHOLS COMPANY, STATING THAT THE BID OF THAT COMPANY WAS LOW, AND THAT HE COULD NOT UNDERSTAND WHY IT HAD NOT BEEN RECEIVED SINCE IT HAD BEEN GIVEN TO THE DALLAS WESTERN UNION OFFICE IN SUFFICIENT TIME TO HAVE REACHED THE OFFICE OF THE CONTRACTING OFFICER PRIOR TO THE TIME SET FOR THE OPENING OF BIDS.

THEREAFTER, THE OFFICE OF THE CONTRACTING OFFICER PLACED A CALL TO THE EL PASO WESTERN UNION OFFICE AND WAS ADVISED THAT THE TELEGRAPHIC BID BY THE NICHOLS COMPANY WAS IN THAT OFFICE, HAVING BEEN RECEIVED AT 2:57 P.M., (MST). THE CLERK STATED THAT THEY KNEW THE MESSAGE WAS URGENT, BUT COULD FURNISH NO REASON FOR NOT CALLING IN THE MESSAGE. THE CONTRACTING OFFICER DETERMINED THAT THE DELAY IN RECEIVING THE TELEGRAPHIC BID WAS ATTRIBUTABLE TO THE WESTERN UNION COMPANY AND THAT THE NICHOLS COMPANY WAS NOT RESPONSIBLE FOR THE DELAY.

UPON THE BASIS OF THE FACTS HEREINBEFORE SET FORTH, THE CONTRACTING OFFICER EXPRESSED THE OPINION THAT THE TELEGRAPHIC BID SUBMITTED BY THE NICHOLS COMPANY WAS FILED IN THE DALLAS WESTERN UNION OFFICE IN SUFFICIENT TIME TO HAVE REACHED HIS OFFICE PRIOR TO THE TIME SET FOR THE OPENING OF BIDS. HE EXPRESSED THE FURTHER OPINION THAT CONSIDERATION MUST BE GIVEN TO BID BONDS RECEIVED LATE WHEN THEY ARE IN SUPPORT OF TELEGRAPHIC BIDS. THE CONTRACTING OFFICER POINTED OUT, HOWEVER, THAT THE BID BOND SUBMITTED BY THE NICHOLS COMPANY WAS POSTMARKED AIR MAIL AT DALLAS, TEXAS, AT :00 P.M., (CST), ON JUNE 29, 1960, AND THAT THIS WAS FOUR HOURS AFTER THE BIDS WERE OPENED, AND PAST THE TIME WHEN THE NICHOLS COMPANY KNEW THAT ITS TELEGRAPHIC BID WAS THE LOW BID RECEIVED. IT WAS THE RECOMMENDATION OF THE CONTRACTING OFFICER THAT THE PROTEST OF SHARP AND FELLOWS BE DENIED, AND THAT THE AWARD BE MADE TO THE NICHOLS COMPANY, AT A SAVING TO THE GOVERNMENT OF $2,202.03.

THE HEADQUARTERS FOURTH UNITED STATES ARMY, FORT SAM HOUSTON, TEXAS, TOOK A CONTRARY POSITION TO THAT OF THE CONTRACTING OFFICER. FOR THE REASONS SET FORTH IN FIRST ENDORSEMENT DATED JULY 19, 1960, IT WAS RECOMMENDED THAT THE INVITATION FOR BIDS BE CANCELLED AND THE PROCUREMENT READVERTISED ALLOWING SUFFICIENT TIME FOR THE PROPER AND ORDERLY SUBMISSION OF BIDS AND BID BONDS.

IN VIEW OF WHAT IS SAID HEREINAFTER CONCERNING THE REQUIREMENT THAT THE BID BOND BE IN THE OFFICE OF THE CONTRACTING OFFICER PRIOR TO THE BID OPENING DATE, IT APPEARS UNNECESSARY TO CONSIDER AT THIS TIME WHETHER THE LATE TELEGRAPHIC BID SHOULD BE CONSIDERED.

AN ADDENDUM TO THE INVITATION FOR BIDS (STANDARD FORM 20) IS AS FOLLOWS:

"IF THE BID BOND IS NOT RECEIVED AT THE DESIGNATED OFFICE PRIOR TO THE SPECIFIED TIME FOR BID OPENING, THE BID WILL BE REJECTED AS NONRESPONSIVE EXCEPT THAT BID BONDS RECEIVED AFTER THE SPECIFIED TIME FOR BID OPENING AND PRIOR TO AWARD MAY BE CONSIDERED IF THE FAILURE OF THE BID BOND TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

OUR OFFICE HAS HERETOFORE HAD OCCASION TO CONSIDER THE QUESTION AS TO WHETHER A BID MIGHT BE CONSIDERED IN A CASE WHERE TELEGRAPHIC BIDS WERE PERMITTED BUT WHERE THERE WAS A MANDATORY REQUIREMENT IN THE INVITATION FOR BIDS THAT UNLESS THE BID BOND WAS RECEIVED PRIOR TO THE TIME OF THE BID OPENING THE BID WOULD BE REJECTED AS NONRESPONSIVE--- AS IN THE INSTANT MATTER. FOR THE REASONS SET FORTH IN DECISION DATED DECEMBER 8, 1959, B-141286, PUBLISHED AT 39 COMP. GEN. 430--- A COPY TO YOUR DEPARTMENT WITH A LETTER OF THE SAME DATE--- WE HELD THAT A TELEGRAPHIC BID CONTAINING A CITATION TO A BID BOND NUMBER AND THE NAME OF THE SURETY, SUBMITTED IN RESPONSE TO AN INVITATION WHICH SPECIFICALLY REQUIRED THE FURNISHING OF A BID BOND PRIOR TO THE BID OPENING, BY A LOW BIDDER WHO DID NOT FURNISH THE REQUIRED BOND UNTIL MORE THAN ONE DAY AFTER THE BID OPENING, DID NOT COMPLY WITH THE BID BOND REQUIREMENT OF THE INVITATION.

IN THE CITED DECISION REFERENCE WAS MADE TO THE PRACTICE FREQUENTLY RESORTED TO BY GOVERNMENT BIDDERS OF SUBMITTING FORMAL BIDS WITH THE VARIOUS CERTIFICATIONS AND OTHER EXECUTED FORMS FREQUENTLY REQUIRED, INCLUDING THE BID BOND, AND THEREAFTER TIMELY SUBMITTING BY TELEGRAM THEIR FIRM AND FIXED PRICE, EITHER AS AN ORIGINAL QUOTATION, OR AS AN AMENDMENT TO THEIR PRIOR BID. IT WAS THEN HELD THAT---

"* * * IN VIEW OF THE CLEAR AND UNAMBIGUOUS REQUIREMENT OF THE INVITATION AND THE SPECIAL CAUTION NOTICE TO BIDDERS THAT A BID BOND BE FURNISHED ON OR BEFORE THE TIME FIXED FOR OPENING OF BIDS, AND HAVING REGARD FOR THE GENERAL PRACTICE MENTIONED ABOVE, WE FEEL THAT THE CONCLUSION REACHED IN OUR DECISION OF FEBRUARY 5, 1959, 38 COMP. GEN. 532, IS EQUALLY FOR APPLICATION HERE.'

APPLYING THE REASONING IN THE CITED DECISION TO THE FACTS IN THE INSTANT CASE, AND SINCE IT IS APPARENT THAT THE BID BOND SUBMITTED BY THE NICHOLS COMPANY WAS NOT RECEIVED WITHIN THE SPECIFIED TIME, WE MUST CONCLUDE THAT THERE WAS FAILURE ON THE PART OF THAT COMPANY TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS. UPON THE BASIS OF THE RECORD, WE AGREE WITH THE RECOMMENDATION BY HEADQUARTERS FOURTH UNITED STATES ARMY THAT THE INVITATION BE CANCELLED AND THE PROCUREMENT READVERTISED.