B-152232, OCT. 21, 1963

B-152232: Oct 21, 1963

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(A) * * * TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION. BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.'. 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: (A) THEY ARE RECEIVED BEFORE AWARD IS MADE. (B) THEY ARE SENT * * * BY TELEGRAPH IF AUTHORIZED. (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) * * * DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED. FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.'.

B-152232, OCT. 21, 1963

TO TECHNICAL CONSULTANTS, INCORPORATED:

THIS REFERS TO YOUR LETTER OF AUGUST 6, 1963, WITH ENCLOSURES, PROTESTING AGAINST THE ACCEPTANCE OF THE BID OF MANAGEMENT AND TECHNICAL SERVICE COMPANY UNDER INVITATION FOR BIDS NO. 01-601-63 1274, ISSUED BY THE DEPARTMENT OF THE AIR FORCE AT BROOKLEY AIR FORCE BASE, ALABAMA, ON JUNE 6, 1963.

THE INVITATION CALLS FOR THE FURNISHING OF VARIOUS CATALOGUING SERVICES TO BE PERFORMED AT BROOKLEY AIR FORCE BASE OVER A 12-MONTH PERIOD. CONDITION 2A OF TERMS AND CONDITIONS OF THE INVITATION, (THE STANDARD PROVISION) PROVIDES AS FOLLOWS:

"2. (A) * * * TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.'

ALSO, NOTE 9 OF THE INVITATION COVER PAGE PROVIDES AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. 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: (A) THEY ARE RECEIVED BEFORE AWARD IS MADE; (B) THEY ARE SENT * * * BY TELEGRAPH IF AUTHORIZED; AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) * * * DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.'

AMENDMENT NO. 1 TO THE INVITATION WAS ISSUED ON JUNE 14, 1963, AND AMENDMENT NO. 2 WAS ISSUED ON JUNE 27, 1963; BOTH CONTAINED THE FOLLOWING PROVISION:

"IF, BY VIRTUE OF THIS AMENDMENT, IT IS DESIRED TO MODIFY A BID ALREADY SUBMITTED, SUCH MODIFICATION MAY BE MADE BY TELEGRAM OR LETTER, PROVIDED SUCH TELEGRAM OR LETTER MAKES REFERENCE TO THIS AMENDMENT AND IS RECEIVED PRIOR TO THE OPENING HOUR AND DATE SPECIFIED ABOVE.'

BID OPENING WAS HELD, AS SCHEDULED, AT 2:00 P.M., C.S.T., JULY 8, 1963, AND 10 BIDS WERE RECEIVED. THE LOW BID WAS RECEIVED FROM MANAGEMENT AND TECHNICAL SERVICE COMPANY. HOWEVER, THIS BID FAILED TO INCLUDE AN ACKNOWLEDGMENT OF AMENDMENT 1 TO THE INVITATION. THE AMENDMENT PROVIDED FOR ADDITIONAL SERVICES TO THE PERFORMANCE SCHEDULE (ITEM NO. 9 AND 9A), REDUCED THE ESTIMATED QUANTITY STATED ON ITEM NO. 8D BY TWO-THIRDS AND OTHERWISE MADE SOME MINOR CHANGES TO THE SPECIFICATIONS.

IT IS REPORTED THAT ON JULY 5, 1963, A REPRESENTATIVE OF M AND T SERVICE HAD CALLED THE CONTRACTING OFFICER AND ADVISED THAT IT HAD RECEIVED AMENDMENT NO. 2, BUT HAD NOT RECEIVED AMENDMENT NO. 1; WHEREUPON, THE CONTRACTING OFFICER HAD ADVISED THE REPRESENTATIVE OF THE CONTENTS OF AMENDMENT 1, AND COPIES OF THE AMENDMENT WERE THEN MAILED TO THE BIDDER.

AT 11:00 A.M., C.S.T. ON JULY 9, 1963, A TELEGRAPHIC BID MODIFICATION WAS RECEIVED BY THE CONTRACTING OFFICER FROM M AND TO SERVICE, STATING AS FOLLOWS:

"RECEIPT IS ACKNOWLEDGED OF AMENDMENT 1 ON IFB 01-601-63-1274. ITEM 9A-- - UNIT PRICE .006--- TOTAL FOR ITEM $6,000. UNIT PRICE FOR ITEM 8D UNCHANGED. TOTAL PRICE FOR ITEM CHANGED TO $3,326.00. M. KELLY, MANAGEMENT AND TECHNICAL SERVICE.'

AS INDICATED ON THE TELEGRAM, IT WAS DISPATCHED FROM PHILADELPHIA, PENNSYLVANIA (WHERE THE BIDDER IS LOCATED) AT 12:37 P.M., EASTERN DAYLIGHT TIME, ON JULY 8, 1963, OR 3 HOURS AND 23 MINUTES BEFORE THE 2:00 P.M., C.S.T. BID OPENING. THE TELEGRAM WAS RECEIVED BY WESTERN UNION IN MOBILE, ALABAMA AT 12:41 P.M., C.S.T., ON JULY 8, 1963 (2 HOURS AND 4 MINUTES AFTER IT WAS SENT) AND WAS DELIVERED BY WESTERN UNION TO BASE COMMUNICATIONS, BROOKLEY AIR FORCE BASE AT 12:50 P.M., C.S.T. THE WESTERN UNION MANAGER, MOBILE, ALABAMA REPORTS THAT THIS MESSAGE WAS DELAYED EN ROUTE TO MOBILE. (THE AIR FORCE REPORTS THAT NORMAL TRANSMISSION TIME FOR WESTERN UNION TELEGRAMS BETWEEN PHILADELPHIA AND MOBILE DURING JULY, 1963 "WAS LESS THAN 39 MINUTES.'

IN ADDITION, THE AIR FORCE STATES THAT DELAY WAS ENCOUNTERED IN THE TRANSMISSION OF THE TELEGRAM AFTER IT ARRIVED ON THE BASE; THAT NORMAL DELIVERY TIME FOR DELIVERING A TELEGRAM FROM THE BASE COMMUNICATIONS TO THE PLACE OF BID OPENING IS ONE HOUR. (THIS TELEGRAM WAS RECEIVED AT BASE COMMUNICATIONS AT 12:50 P.M., C.S.T., OR 1 HOUR AND 10 MINUTES PRIOR TO THE BID OPENING.)

THE BID ABSTRACT SHOWS THAT THE TEN BIDS RANGE IN PRICE FROM M AND T SERVICE'S LOW BID OF $155,155.52 TO A HIGH OF $604,815.51. THE SECOND LOW BID WAS IN THE AMOUNT OF $196,478.36 (LEAR SIEGLER SERVICE) AND YOUR BID WAS THIRD LOW AT $199,290.07. THE LATE TELEGRAPHIC MODIFICATION QUOTED A TOTAL REDUCTION OF $653.21 IN M AND T SERVICE'S LOW BID (THE BIDDER INCREASED ITS BID BY $6,000 FOR ITEM NO. 9 AND REDUCED ITS BID ON ITEM NO. 8 D FROM $9,979.21 TO $3,36, A REDUCTION OF $6,653.21). AMENDMENT NO. 1, DULY SIGNED, WAS RECEIVED FROM THE LOW BIDDER ON JULY 10, 1963.

ON JULY 10, 1963 YOU SUBMITTED A PROTEST TO THE AIR FORCE AGAINST AN AWARD TO THE LOW BIDDER, ON THE BASIS THAT ITS LATE TELEGRAPHIC MODIFICATION SHOULD NOT BE CONSIDERED. BY LETTER OF AUGUST 6, 1963, YOU PROTESTED TO THIS OFFICE. ON SEPTEMBER 23, 1963, THE AIR FORCE ADVISED US THAT DESPITE YOUR PROTEST IT WAS PROCEEDING WITH AWARD TO THE LOW BIDDER, PURSUANT TO ASPR 2-407.9 (3), ON THE BASIS THAT THE REQUIRED SERVICES WERE URGENTLY REQUIRED TO PREVENT WORK STOPPAGE IN CATALOGUING SERVICES IN SUPPORT OF THE AIR FORCE LOGISTIC SYSTEM.

YOUR PROTEST PROCEEDS ON THE BASIS THAT A TELEGRAPHIC BID WAS UNAUTHORIZED AND NOT NECESSARY IN THIS CASE. YOU CITE ASPR 2-202.2 WHICH PROVIDES THAT AS A GENERAL RULE, TELEGRAPHIC BIDS WILL NOT BE AUTHORIZED. YOU ALSO CITE ASPR 2-301, REQUIRING THE SUBMISSION OF RESPONSIVE BIDS. YOU POINT OUT THAT UNDER PARAGRAPH SP-4, PAGE NO. 1 OF THE INVITATION SCHEDULE PROVISIONS, AWARD WAS TO BE MADE ON THE LOW AGGREGATE BID; AND YOU CONTEND THAT THE LOW BIDDER HAD NOT SUBMITTED A COMPLETE BID AT THE TIME OF THE BID OPENING.

CLEARLY, UNDER CONDITION 2 (A) OF "TERMS AND CONDITIONS" OF THE INVITATION, TELEGRAPHIC BIDS WERE NOT AUTHORIZED; BUT TELEGRAPHIC BID MODIFICATIONS WERE PERMITTED. AIR FORCE CONCLUDES THAT THE MANAGEMENT AND TECHNICAL SERVICE'S LATE TELEGRAM IN QUESTION WAS A BID MODIFICATION, NOT AN INITIAL BID. WE AGREE WITH THE AIR FORCE.

THE GENERAL PROHIBITION AGAINST TELEGRAPHIC BIDS ARISES IN LARGE PART BECAUSE THE UNSIGNED TELEGRAPHIC BID PROVIDES LITTLE ASSURANCE TO THE GOVERNMENT THAT THE PURPORTED SENDER INTENDED TO BE BOUND TO THE TERMS AND CONDITIONS OF THE INVITATION. SEE GENERALLY, 34 COMP. GEN. 439, ON THE EFFECT OF UNSIGNED BIDS; SEE ALSO 40 COMP. GEN. 279. ON THE OTHER HAND, THE TELEGRAPHIC BID MODIFICATION--- WHICH IS PERMITTED -- REFERS TO AN EXISTING BID, WHERE THE GOVERNMENT HAS REASON TO BELIEVE THAT THE TELEGRAM SENDER (THE BIDDER) INTENDED TO INCLUDE THE TELEGRAPHIC TERMS AS A PART OF ITS BID. IN THIS CONTENT, WE THINK THAT THE M AND T SERVICE TELEGRAM, WHILE SERVING TO COMPLETE AN OTHERWISE INCOMPLETE BID IN INCORPORATING THE ADDENDUM, WAS IN THE NATURE OF A BID MODIFICATION--- A CHANGE TO AN EXISTING BID--- RATHER THAN A BID. SEE 40 COMP. GEN. 337, WHERE WE TREATED A TELEGRAPHIC ACKNOWLEDGMENT OF AN ADDENDUM TO A SPECIFICATION AS A BID MODIFICATION. (HOWEVER, IN THAT CASE WE CONCLUDED THAT LATENESS IN RECEIPT OF THE MODIFICATION WAS NOT EXCUSABLE.) CONSEQUENTLY, THE M AND T SERVICE TELEGRAM WAS PROPERLY CONSIDERED TO BE A BID MODIFICATION.

IN THIS CASE, THE EVIDENCE ESTABLISHES THAT THE LATE TELEGRAPHIC BID MODIFICATION WAS TIMELY SENT, AND THAT THE LATENESS WAS DUE TO A DELAY BY THE TELEGRAPH COMPANY AND MISHANDLING BY THE GOVERNMENT AT THE INSTALLATION. THEREFORE, THE LATE TELEGRAM WAS PROPERLY FOR CONSIDERATION PURSUANT TO NOTE 9 OF THE INVITATION, THE PROVISION COVERING LATE BIDS AND MODIFICATIONS. ACCORDINGLY, YOUR PROTEST AGAINST THE AWARD TO THE LOW BIDDER IS DENIED.