B-150705, FEB. 28, 1963

B-150705, FEB. 28, 1963

TO TRI-COR, INC.:

THIS REFERS TO YOUR MOST RECENT LETTER OF FEBRUARY 5, 1963, AND PREVIOUS CORRESPONDENCE, PROTESTING AGAINST THE AWARD MADE TO MIKE BRADFORD AND CO., INC., UNDER INVITATION FOR BIDS NO. 34-601-63-343.

THE SUBJECT INVITATION WAS ISSUED ON DECEMBER 4, 1962, AND CALLED FOR BIDS TO FURNISH LABOR, EQUIPMENT AND MATERIALS, AND PERFORM ALL THE WORK FOR THE FABRICATION AND ERECTION OF ONE AIRCRAFT MAINTENANCE DOCK, AS SPECIFIED, AT HOMESTEAD AIR FORCE BASE, HOMESTEAD, FLORIDA.

BID OPENING WAS HELD AT 2:00 P.M., C.S.T., ON DECEMBER 26, 1962, IN THE OFFICE OF THE CONSTRUCTION PROCUREMENT DIVISION, DIRECTORATE, PROCUREMENT AND PRODUCTION, TINKER AIR FORCE BASE, OKLAHOMA. NINE BIDS WERE RECEIVED AND OPENED AT THAT TIME. OF THESE BIDS, IT WAS NOTED THAT MIKE BRADFORD AND CO., MIAMI, FLORIDA, HAD SUBMITTED A BID IN THE AMOUNT OF $298,000 WHICH WAS REDUCED TO $267,870 BY A TELEGRAPHIC MODIFICATION RECEIVED BEFORE THE BID OPENING. YOU SUBMITTED A BID IN THE AMOUNT OF $275,000, AND THE OTHER 7 BIDS RANGED IN PRICE FROM $274,200 TO $450,000. AT 3:10 P.M., C.S.T., A TELEGRAPHIC MODIFICATION WAS RECEIVED IN THE BID ROOM FROM YOUR FIRM, STATING A REDUCTION IN BID OF $15,841. THIS WOULD REDUCE YOUR BID TO $259,159. THE TELEGRAM WAS SENT FROM THE WESTERN UNION OFFICE,LONG BEACH, CALIFORNIA, AT 11:16 A.M., P.S.T., OR 1:16 P.M., C.S.T.

THE INVITATION PROVIDED FOR THE CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS RECEIVED BEFORE AWARD IF IT WAS DETERMINED THAT "LATE RECEIPT WAS DUE SOLELY TO * * * DELAY BY THE TELEGRAPH COMPANY * * *.' WAS ADMINISTRATIVELY CONCLUDED THAT YOUR LATE TELEGRAPHIC BID MODIFICATION SHOULD NOT BE CONSIDERED, AND AWARD WAS MADE TO MIKE BRADFORD AND CO. HOWEVER,"NOTICE TO PROCEED" HAS BEEN WITHHELD PENDING THIS PROTEST.

YOU PROTEST THE REFUSAL OF THE CONTRACTING OFFICER TO CONSIDER YOUR LATE TELEGRAPHIC MODIFICATION ON THE BASIS THAT DELAY IN DELIVERY WAS DUE SOLELY TO ERROR AND MISHANDLING IN THE OKLAHOMA CITY OFFICE OF WESTERN UNION.

STATEMENTS HAVE BEEN FURNISHED FROM OFFICIALS AT THE WESTERN UNION OFFICE IN OKLAHOMA CITY. IT APPEARS THAT YOUR TELEGRAM, WHICH WAS FILED AT 1:16 P.M., C.S.T., WAS RECEIVED IN THE OKLAHOMA CITY WESTERN UNION OFFICE AT 1:33 P.M., C.S.T., OR 27 MINUTES PRIOR TO THE 2:00 P.M. BID OPENING AT TINKER AIR FORCE BASE. THE WESTERN UNION REPORTS THAT DUE TO THE ABSENCE OF TWO OPERATORS ON DECEMBER 26, 1962, SERVICE TO TINKER WAS RUNNING BEHIND. IT IS FURTHER REPORTED THAT YOUR TELEGRAM, WHICH CARRIED THE INSTRUCTION "MUST BE DELIVERED BY 2 P.M.' WAS MISFILED BY WESTERN UNION FOR REGULAR HANDLING INSTEAD OF PRIORITY HANDLING. THE DISTRICT SUPERINTENDENT OF THE OKLAHOMA OFFICE STATES THAT YOUR TELEGRAM WAS FILED BY YOU EARLY ENOUGH TO HAVE ARRIVED AT THE TINKER AFB COMMUNICATIONS CENTER BY 2:00 P.M., C.S.T., UNDER NORMAL CONDITIONS. HE FURTHER STATED THAT CONDITIONS WERE ABNORMAL AND UNAVOIDABLE DELAYS EXISTED BETWEEN THE HOURS OF 10:30 A.M., C.S.T., AND 3:30 P.M., C.S.T.

THE AIR FORCE REPORTS THAT ON THE BASIS OF ITS EXPERIENCE WITH REGARD TO TELEGRAPHIC MODIFICATIONS TO BIDS RECEIVED AT TINKER AIR FORCE BASE THE AVERAGE TIME THAT ELAPSES BETWEEN FILING BY THE BIDDER WITH THE TELEGRAPH COMPANY AND RECEIPT OF THE WIRE BY THE COMMUNICATIONS CENTER AT THE BASE IS APPROXIMATELY ONE AND ONE-HALF HOURS.

THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT A LATE TELEGRAPHIC BID MODIFICATION SHALL BE PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE RECEIVED IN TIME, EXCEPT WHERE THE BIDDER DEMONSTRATES BY CLEAR AND CONVINCING EVIDENCE, WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY, THAT THE MODIFICATION IN QUESTION WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE. (ASPR 2-305 (A), 2-303.4.) THE FEDERAL PROCUREMENT REGULATIONS CONTAIN THE SAME PROVISION, AND WE HAVE STATED THAT UNDER THE PROVISION IT MUST BE ESTABLISHED THAT THE TELEGRAPHIC MODIFICATION WAS DISPATCHED IN SUFFICIENT TIME TO ARRIVE AT THE ANNOUNCED TIME OF THE BID OPENING; AND THAT THIS REQUIREMENT IS THE ABSOLUTE RESPONSIBILITY OF THE BIDDER AND IT MAY NOT BE MET BY A MERE SHOWING THAT A PARTICULAR TELEGRAM COULD HAVE BEEN RECEIVED TIMELY UNDER FAVORABLE CONDITIONS. B-148370, APRIL 2, 1962. THE BIDDER 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. 40 COMP. GEN. 290.

YOUR TELEGRAM WAS FILED 44 MINUTES PRIOR TO BID OPENING. IT WAS RECEIVED AT THE BID OFFICE AT 3:10 P.M., C.S.T., OR 70 MINUTES AFTER THE 2:00 P.M BID OPENING. THE WESTERN UNION STATES THAT ,ABNORMAL AND UNAVOIDABLE DELAYS" EXISTED; AND THAT UNDER NORMAL CONDITIONS YOUR MESSAGE WAS FILED EARLY ENOUGH TO HAVE ARRIVED BY 2:00 P.M. BUT THESE STATEMENTS DO NOT ESTABLISH THAT ANY DELIVERY BEYOND 2:00 P.M. WOULD HAVE BEEN ABNORMAL AND UNFORESEEABLE. IN OTHER WORDS, THE EVIDENCE SUBMITTED BY WESTERN UNION INDICATES THAT UNDER NORMAL TRANSMISSION PROCEDURE YOUR MESSAGE WOULD HAVE ARRIVED EARLIER THAN 3:10 P.M.; AND THAT IT COULD HAVE ARRIVED BY 2:00 P.M. HOWEVER, YOU HAVE FAILED TO ESTABLISH THAT YOUR TELEGRAM, WHICH WAS FILED ONLY 44 MINUTES PRIOR TO THE TIME OF BID OPENING, WAS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE. ACCORDINGLY, WE CONCLUDE THAT YOUR LATE TELEGRAPHIC BID MODIFICATION WAS PROPERLY NOT CONSIDERED.

YOU QUESTION WHETHER A LATE BID MODIFICATION FROM MIKE BRADFORD AND CO., OFFERING TO REDUCE ITS BID PRICE BY $9,500, MAY PROPERLY BE ACCEPTED. THE "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" CLAUSE OF THE SUBJECT INVITATION PROVIDES THAT A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED. THE AIR FORCE ADVISES US THAT THE $9,500 REDUCTION IN QUESTION IS ONLY FOR ACCEPTANCE IF IT IS ULTIMATELY DETERMINED THAT MIKE BRADFORD AND CO. IS THE SUCCESSFUL BIDDER WITHOUT CONSIDERING THIS REDUCTION.