B-151972, SEP. 19, 1963

B-151972: Sep 19, 1963

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DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO LETTERS DATED JULY 18 AND 29. THE BROWNWOOD MANUFACTURING COMPANY'S UNIT BID PRICE OF $2.63 WAS LOWER THAN THAT OF ANY OTHER BIDDER. TELEGRAPHIC BID MODIFICATIONS WERE PERMITTED BY THE TERMS OF THE INVITATION. THE INVITATION ALSO AUTHORIZED THE CONSIDERATION OF A LATE TELEGRAPHIC BID MODIFICATION IF IT SHOULD BE DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT OF THE TELEGRAM MODIFYING THE BID WAS DUE SOLELY TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IS REQUIRED BY SUBSECTION 2-304.4 AND SECTION 2 305. WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.'.

B-151972, SEP. 19, 1963

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO LETTERS DATED JULY 18 AND 29, 1963, DSAH-G, FROM MR. ALBERT RABY, JR., ASSISTANT COUNSEL, FURNISHING AN ORIGINAL AND SUPPLEMENTAL ADMINISTRATIVE REPORT ON THE PROTEST OF THE BROWNWOOD MANUFACTURING COMPANY, BROWNWOOD, TEXAS, AGAINST THE FAVORABLE CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION TO A BID SUBMITTED BY COVINGTON INDUSTRIES, INC., OPP, ALABAMA, IN RESPONSE TO INVITATION FOR BIDS NO. DSA-1-63-1182, ISSUED MAY 23, 1963, BY THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION REQUESTED BIDS FOR MAKING DELIVERY TO SPECIFIED DESTINATIONS OF A TOTAL QUANTITY OF 149,070 VESICANT AND GAS PROTECTIVE COATS, AND ADVISED BIDDERS THAT AN ADDITIONAL PROCUREMENT OF 149,050 COATS WOULD BE MADE UNDER THE SMALL BUSINESS SET-ASIDE PROGRAM. AS OF THE TIME SCHEDULE FOR OPENING OF BIDS, 1:00 P.M., E.D.T., JUNE 13, 1963, 17 BIDS HAD BEEN RECEIVED ON THE UNRESTRICTED QUANTITY (149,070 COATS), AND THE BROWNWOOD MANUFACTURING COMPANY'S UNIT BID PRICE OF $2.63 WAS LOWER THAN THAT OF ANY OTHER BIDDER. HOWEVER, COVINGTON INDUSTRIES, INC., HAD REQUESTED IN A TELEGRAM RECEIVED BY THE DEFENSE CLOTHING AND TEXTILE CENTER AT 1:24 P.M., E.D.T., JUNE 13, THAT ITS UNIT BID PRICE OF $2.95 BE CHANGED TO $2.60.

TELEGRAPHIC BID MODIFICATIONS WERE PERMITTED BY THE TERMS OF THE INVITATION. THE INVITATION ALSO AUTHORIZED THE CONSIDERATION OF A LATE TELEGRAPHIC BID MODIFICATION IF IT SHOULD BE DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT OF THE TELEGRAM MODIFYING THE BID WAS DUE SOLELY TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

THE CONTRACTING OFFICER THEREFORE INITIATED ACTION IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION 2-304.4 AND SECTION 2-305, OF THE ARMED SERVICES PROCUREMENT REGULATION TO DETERMINE WHETHER THE LATE TELEGRAPHIC BID MODIFICATION SHOULD BE ACCEPTED FOR BID EVALUATION AND AWARD PURPOSES. IS REQUIRED BY SUBSECTION 2-304.4 AND SECTION 2 305, ASPR, THAT A BIDDER MUST BE AFFORDED AN OPPORTUNITY TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE, INCLUDING SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY, THAT THE TELEGRAM SENT AS A BID MODIFICATION ,WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.'

THE WESTERN UNION TELEGRAPH COMPANY FURNISHED THE FOLLOWING INFORMATION RELATIVE TO THE MATTER: THE TELEGRAM MODIFYING THE BID OF COVINGTON INDUSTRIES, INC., WAS FILED IN THE COMPANY'S MAIN OFFICE IN ATLANTA, GEORGIA, AT 12 P.M., E.D.T., ON JUNE 13, 1963. THE MESSAGE REACHED THE OPERATING DEPARTMENT OF THAT OFFICE AT 12:15 P.M., AND WAS TRANSMITTED TO THE COMPANY'S PHILADELPHIA OFFICE AT 12:36 P.M. THE MESSAGE WAS RECEIVED IN PHILADELPHIA ON A PERFORATED TAPE PROCESSED BY AUTOMATIC MACHINES AND THE OPERATOR AT THE SWITCHING AISLE INADVERTENTLY ROUTED THE MESSAGE FOR LOCAL DELIVERY TO ANOTHER DEPARTMENT IN THE PHILADELPHIA OFFICE, INSTEAD OF ROUTING THE MESSAGE OVER THE "PRIVATE" TIE LINE OR TELEPRINTER OF THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER. THE MESSAGE WAS RECEIVED AT THE SWITCHING AISLE AT 12:39 P.M. THE ERROR IN ROUTING WAS DISCOVERED BY THE "LOCAL" DEPARTMENT AND THE MESSAGE WAS REROUTED TO THE SWITCHING AISLE AT 1:08 P.M. THE MESSAGE WAS THEN CORRECTLY TRANSMITTED AND RECEIVED OVER THE CENTER'S "PRIVATE" WIRE AT 1:24 P.M. WESTERN UNION STATES THE MESSAGE IN QUESTION SHOULD HAVE BEEN RECEIVED BY THE CENTER AT 12:55 P.M., OR FIVE MINUTES BEFORE THE SCHEDULED TIME FOR THE OPENING OF BIDS, UNDER NORMAL HANDLING.

THE CONTRACTING OFFICER BELIEVES THAT THERE IS SUFFICIENT EVIDENCE TO JUSTIFY THE FAVORABLE CONSIDERATION OF THE LATE TELEGRAPHIC BID MODIFICATION BY COVINGTON INDUSTRIES, INC., IN DETERMINING THE LOWEST RESPONSIVE BID UNDER INVITATION NO. DSA-1-63-1182. HOWEVER, THE BROWNWOOD MANUFACTURING COMPANY CONTENDS THAT THE TELEGRAM SHOULD NOT BE CONSIDERED AS HAVING BEEN FILED AT ATLANTA, GEORGIA, WITHIN SUFFICIENT TIME TO REACH THE PROCUREMENT OFFICE BY 1:00 P.M., E.D.T., ON THE DATE OF THE BID OPENING.

THE EVIDENCE OF RECORD INDICATES THAT THE PARTICULAR MESSAGE HERE INVOLVED WAS MISROUTED AT THE SWITCHING AISLE AND WAS NOT REROUTED TO THE SWITCHING AISLE UNTIL 29 MINUTES LATER. IT ACTUALLY ARRIVED 24 MINUTES AFTER BID OPENING TIME. THUS, IF THE ROUTINE ERROR HAD NOT OCCURRED, IT SEEMS PROBABLE THAT THE TELEGRAM WOULD HAVE BEEN RECEIVED FIVE MINUTED BEFORE BID OPENING. HOWEVER, IT IS NOT SUFFICIENT TO SHOW THAT THE PARTICULAR TELEGRAM ACTUALLY INVOLVED HAPPENED TO BE SUBJECTED TO UNUSUAL OR ABNORMAL DELAY. THE SHOWING REQUIRED UNDER ASPR 2-303.4 IS THAT NOT ONLY THE PARTICULAR TELEGRAM INVOLVED BUT ANY TELEGRAM SUBJECT TO THE SAME GENERAL CONDITIONS WOULD UNDER ,NORMAL TRANSMISSION PROCEDURE" BE RECEIVED IN TIME.

THE FEDERAL COMMUNICATIONS COMMISSION REQUIRES WESTERN UNION TO MADE REPORTS ON MESSAGE TRANSMISSION TIMES BASED ON A PRESCRIBED SAMPLING FORMULA WHICH TAKES INTO ACCOUNT THE INCREASED MESSAGE LOAD DURING THE MIDDLE OF THE DAY. DURING THE MONTH OF JUNE, 1963, THE STATISTICS COLLECTED FOR THE FEDERAL COMMUNICATIONS COMMISSION SHOW THAT 97.6 PERCENT OF ALL TIE-LINE MESSAGES WERE DELIVERED BY THE PHILADELPHIA OFFICE OF WESTERN UNION WITHIN 60 MINUTES AFTER THEY WERE FILED WITH THE ORIGINATING OFFICE, THE AVERAGE TIME OF DELIVERY BEING 33.9 MINUTES. IN THE LIGHT OF THIS INFORMATION, IT IS OUR VIEW THAT THE TELEGRAPHIC BID MODIFICATION FILED BY COVINGTON, INDUSTRIES, INC., 60 MINUTES BEFORE BID OPENING WAS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY "NORMAL TRANSMISSION PROCEDURE" BEFORE BID OPENING.

WE BELIEVE THERE IS MERIT TO THE SUGGESTION MADE BY THE BROWNWOOD MANUFACTURING COMPANY, WITH WHICH BOTH THE CONTRACTING OFFICER AND COVINGTON INDUSTRIES, INC., AGREE, THAT MORE SPECIFIC GUIDE LINES FOR DETERMINING THE ACCEPTABILITY OF LATE TELEGRAPHIC BID MODIFICATIONS BE ESTABLISHED. WE BELIEVE THE DESIRABILITY OF SUCH ACTION IS EMPHASIZED BY THE RECENT TIGHTENING OF THE REGULATIONS APPLICABLE TO LATE MAILED BIDS AND MODIFICATIONS.