B-152545, OCT. 18, 1963

B-152545, OCT. 18, 1963

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 23, 1963, WITH ENCLOSURES, FROM YOUR ASSISTANT COUNSEL, REQUESTING A DECISION ON THE PROTEST OF AUTOMOTIVE TIRE SERVICE, INC., AGAINST THE FAILURE OF THE CONTRACTING OFFICER TO CONSIDER A TELEGRAPHIC BID MODIFICATION ON SURPLUS PROPERTY SALE NO. 35-S-64-5.

IT APPEARS THAT BIDS WERE OPENED AT 10:00 A.M. (M.S.T.) AUGUST 15, 1963, AND THAT AWARD WAS MADE TO AUTOMOTIVE TIRE SERVICE, INC., AS HIGH BIDDER ON ITEMS 85, 95 AND 96. THE SALE WAS COMPLETED BY 11:20 A.M. AT APPROXIMATELY 1:30 P.M. ON AUGUST 15 THE SALES CONTRACTING OFFICER RECEIVED A TELEGRAM FROM AUTOMOTIVE TIRE SERVICE, INC., REDUCING ITS BID PRICES ON ITEMS 85, 95 AND 96 TO FIGURES WHICH WERE BELOW THE NEXT HIGH BID ON EACH ITEM. THIS TELEGRAM HAD BEEN RECEIVED IN THE MESSAGE CENTER, PUEBLO ARMY DEPOT, AT 1:50 P.M. ON AUGUST 14 AND, IN THE ABSENCE OF MISHANDLING BY GOVERNMENT PERSONNEL, WOULD HAVE BEEN DELIVERED TO THE SALES OFFICE AT 3:00 P.M. ON AUGUST 14.

ARTICLE "0" OF THE SPECIAL CONDITIONS OF THE SALE PROVIDES THAT MODIFICATION BY TELEGRAM OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF BOTH THE BID AND THE TELEGRAPHIC MODIFICATION ARE RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO THE TIME SET FOR THE START OF THE SALE AND THAT TELEGRAPHIC MODIFICATIONS WHICH ARE RECEIVED LATE WILL BE CONSIDERED ONLY IF RECEIVED BEFORE AWARD AND THEIR LATENESS WAS DUE TO ABNORMAL DELAY IN TRANSMISSION.

LIMITATIONS ON THE CONSIDERATION OF LATE BIDS OR MODIFICATIONS ARE DESIGNED PRIMARILY TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM AND TO INSURE THAT ALL BIDDERS RECEIVE UNIFORMLY FAIR TREATMENT. LEITMAN V. UNITED STATES, 60 F.SUPP. 218, 226. TO THIS END, THE REQUIREMENT THAT MODIFICATIONS WHICH ARE TIMELY DISPATCHED, BUT ABNORMALLY DELAYED IN TRANSMISSION, MUST BE RECEIVED BEFORE AWARD, IS AIMED PRINCIPALLY, IF NOT SOLELY, AT PREVENTING THE NECESSITY FOR CANCELING AN AWARD MADE IN GOOD FAITH TO AN APPARENT SUCCESSFUL BIDDER OTHER THAN THE ONE WHO SENT THE MODIFICATION. IN SUCH A CASE, NEITHER BIDDER IS AT FAULT, BUT THE ONE WHO RECEIVED THE AWARD APPEARS TO BE ENTITLED TO GREATER CONSIDERATION.

IN THE PRESENT CASE, GIVING EFFECT TO THE MODIFICATION WILL NOT RESULT IN ANY INJUSTICE TO ANY OTHER BIDDER. IT MAY CAUSE SOME LOSS TO THE GOVERNMENT, AND WHILE CONTRACTING OFFICIALS MUST EXERCISE CARE IN NOT RELINQUISHING ANY RIGHT OR BENEFIT WHICH HAS ACCRUED TO THE UNITED STATES, IT IS BELIEVED THAT WHERE, AS HERE, A BIDDER HAS DONE ALL THAT COULD REASONABLY BE EXPECTED OF HIM TO TIMELY COMMUNICATE THE PROPOSED MODIFICATION TO THE SALES CONTRACTING OFFICER AND HAS BEEN PREVENTED BY MISHANDLING ON THE PART OF GOVERNMENT PERSONNEL, HE SHOULD NOT BE PENALIZED.

AS INDICATED IN B-150514, MARCH 22, 1963, 42 COMP. GEN. * * *, IF MAILED BIDS ARE REQUIRED TO BE AT A PARTICULAR ROOM OR OFFICE BY A PARTICULAR TIME, ALTHOUGH DELIVERIES BY POSTAL EMPLOYEES MUST BE MADE AT A DIFFERENT POINT, WE FEEL THAT THE GOVERNMENT OWES TO ALL PROSPECTIVE BIDDERS A DUTY TO ESTABLISH PROCEDURES CALCULATED TO INSURE THAT THE PHYSICAL TRANSMISSION OF BIDS FROM ONE PLACE TO THE OTHER WILL NOT BE UNREASONABLY DELAYED. THIS VIEW WOULD BE EQUALLY APPLICABLE TO MODIFICATIONS WHICH ARE SENT BY OTHER AUTHORIZED MEANS, AS IN THE PRESENT CASE.

WHILE A LITERAL APPLICATION OF THE LANGUAGE OF THE FINAL PROVISION OF ARTICLE "0" WOULD PRECLUDE CONSIDERATION OF THE MODIFICATION, WE BELIEVE, IN VIEW OF THE APPARENT PURPOSE OF THIS PROVISION, THAT ITS SPIRIT AND INTENT WOULD NOT BE VIOLATED BY GIVING EFFECT TO THE MODIFICATION. WILL THEREFORE NOT OBJECT TO THE CANCELLATION OF THE AWARD OF ITEMS 85, 95 AND 96, TO AUTOMOTIVE TIRE SERVICE, INC., AND THEIR DISPOSITION TO THE NEXT HIGH BIDDER, IF POSSIBLE, OR AT A SUBSEQUENT SALE.