B-153392, MAR. 10, 1964

B-153392: Mar 10, 1964

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INC.: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 30. YOUR BID AT A UNIT PRICE OF $5.74 WAS LOWEST. A TELEGRAM WAS RECEIVED FROM THE SECOND LOW BIDDER. WHICH WAS FILED AT DAYTON. WAS RECEIVED AT THE PHILADELPHIA WESTERN UNION OFFICE AT APPROXIMATELY 12:55 P.M. THAT UNDER NORMAL CONDITIONS IT WOULD HAVE REACHED THE BID OPENING OFFICE A FEW MINUTES AFTER THAT TIME OR WELL BEFORE BID OPENING AT :30 P.M. THAT THAT DUE TO A TEMPORARY INTERRUPTION IN TRANSMITTING EQUIPMENT THE TELEGRAM WAS NOT TRANSMITTED TO THE BID OPENING OFFICE BY PRIVATE TELEGRAPH LINE UNTIL 1:35 P.M. 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. * * * * * * * "4.

B-153392, MAR. 10, 1964

TO KEITH AND KEITH, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 30, 1964, PROTESTING AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR FIRM UNDER INVITATION NO. AMC/E/-36-039-64-256-A4 ISSUED BY THE UNITED STATES ARMY ELECTRONICS MATERIAL AGENCY, PHILADELPHIA, PENNSYLVANIA, AND TO YOUR LETTER OF FEBRUARY 3, 1964, WHICH FURNISHED ADDITIONAL INFORMATION REGARDING YOUR PROTEST.

THE INVITATION REQUESTED BIDS, TO BE OPENED ON DECEMBER 2, 1963, AT 1:30 P.M., EASTERN STANDARD TIME, ON COTTON DUCK BAGS. OF THE TEN BIDS RECEIVED AND OPENED AT THE PRESCRIBED TIME, YOUR BID AT A UNIT PRICE OF $5.74 WAS LOWEST. AT 1:43 P.M., EASTERN STANDARD TIME, HOWEVER, ONLY 13 MINUTES AFTER BID OPENING TIME, A TELEGRAM WAS RECEIVED FROM THE SECOND LOW BIDDER, W. A. APPLE MANUFACTURING, INC., REDUCING ITS BID FROM $6.15 TO $5.70. IF THIS TELEGRAPHIC MODIFICATION MAY BE CONSIDERED, W. A. APPLE MANUFACTURING, INC., THEREBY BECAME THE LOW BIDDER.

OFFICIALS OF THE WESTERN UNION TELEGRAPH COMPANY STATE THAT THE TELEGRAM, WHICH WAS FILED AT DAYTON, OHIO, AT 12:20 P.M., EASTERN STANDARD TIME, WAS RECEIVED AT THE PHILADELPHIA WESTERN UNION OFFICE AT APPROXIMATELY 12:55 P.M., EASTERN STANDARD TIME; THAT UNDER NORMAL CONDITIONS IT WOULD HAVE REACHED THE BID OPENING OFFICE A FEW MINUTES AFTER THAT TIME OR WELL BEFORE BID OPENING AT :30 P.M., EASTERN STANDARD TIME, NORMAL TRANSMISSION TIME BETWEEN DAYTON AND PHILADELPHIA BEING 30 TO 40 MINUTES; THAT THAT DUE TO A TEMPORARY INTERRUPTION IN TRANSMITTING EQUIPMENT THE TELEGRAM WAS NOT TRANSMITTED TO THE BID OPENING OFFICE BY PRIVATE TELEGRAPH LINE UNTIL 1:35 P.M., EASTERN STANDARD TIME. A TEST TELEGRAM SUBSEQUENTLY SENT AT THE REQUEST OF THE CONTRACTING OFFICER BY W. A. APPLE MANUFACTURING, INC., FROM DAYTON AT 12:20 P.M., EASTERN STANDARD TIME, ARRIVED AT THE MESSAGE CENTER OF THE BID OPENING OFFICE AT 12:58 P.M., EASTERN STANDARD TIME, THE TRANSMISSION TIME BEING 38 MINUTES. ON THIS EVIDENCE THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAPHIC MODIFICATION COULD BE CONSIDERED IN THE EVALUATION OF THE APPLE BID.

PARAGRAPHS 2 AND 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (STANDARD FORM 33, OCT. 1957 EDITION) PROVIDE AS FOLLOWS:

"2.SUBMISSION OF BIDS.--- (A) BIDS AND MODIFICATIONS THEREOF SHALL BE ENCLOSED IN SEALED ENVELOPES ADDRESSED TO THE ISSUING OFFICE, WITH THE NAME AND ADDRESS OF THE BIDDER, THE DATE AND HOUR OF OPENING, AND THE INVITATION NUMBER ON THE FACE OF THE ENVELOPE. 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. * * * * * * *

"4. LATE BIDS.--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

PARAGRAPH S, PAGE 33, OF THE SPECIFICATION PROVISIONS OF THE INVITATION PROVIDES THAT---

"/A) 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:

(I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

(II) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED; AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(III) IF SUBMITTED BY MAIL (OR TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

YOU CONTEND THAT PARAGRAPH 2 REQUIRES TELEGRAPHIC MODIFICATIONS TO BE RECEIVED BEFORE BID OPENING AND THAT PARAGRAPH 4 RESTRICTS A LATE RECEIPT TO THE MAILS. YOU ALSO CONTEND THAT PARAGRAPH S MAY NOT BE CONSTRUED IN CONFLICT WITH PARAGRAPH 2 SO AS TO PERMIT CONSIDERATION OF THE LATE TELEGRAPHIC MODIFICATION AND THEREFORE YOU SHOULD BE AWARDED THE CONTRACT.

UNDER SECTION 2-305 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE RULES STATED FOR LATE BIDS IN ASPR 2-303 APPLY IN DETERMINING WHETHER LATE MODIFICATIONS SHOULD BE EFFECTIVE. ASPR 2-303.4 PROVIDES THAT A LATE TELEGRAPHIC BID 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 BID, AS RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, 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 GENERAL RULE IS THAT TELEGRAPHIC BID MODIFICATIONS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. WE HAVE HELD, HOWEVER, THAT TELEGRAPHIC MODIFICATIONS RECEIVED AFTER BID OPENING COULD PROPERLY BE CONSIDERED WHERE IT CLEARLY APPEARED THAT THE TELEGRAMS WERE FILED A SUFFICIENT TIME BEFORE THE SCHEDULED OPENING TO BE DELIVERED ON TIME IN THE NORMAL COURSE OF THE TELEGRAPH COMPANY'S BUSINESS; THAT THE DELAY WAS SOLELY THE FAULT OF THE TELEGRAPH COMPANY AND WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE BIDDER; AND THAT THERE WAS NO POSSIBILITY OF PRIOR KNOWLEDGE BY THE BIDDER OF OTHER BIDS. IN MOST, IF NOT ALL, OF THOSE CASES, THE PERTINENT INVITATION OR INSTRUCTIONS STIPULATED THAT TELEGRAPHIC MODIFICATIONS OF BIDS WOULD BE CONSIDERED IF RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. THAT STIPULATION WAS NOT CONSIDERED AS TANTAMOUNT TO AN EXPRESS PROHIBITION AGAINST THE CONSIDERATION OF SUCH TELEGRAPHIC MODIFICATIONS IF NOT RECEIVED ON TIME, WHERE THE DELAY WAS NOT CHARGEABLE TO THE BIDDER. B-144690, MARCH 7, 1961; 37 COMP. GEN. 595; 24 ID. 350.

THE LANGUAGE OF PARAGRAPHS 2 AND 4 OF THE GENERAL TERMS AND CONDITIONS OF THE INVITATION, WHEN INTERPRETED IN THE LIGHT OF CURRENT PROCUREMENT REGULATIONS AND DECISIONS OF OUR OFFICE, ALLOW CONSIDERATION OF LATE TELEGRAPHIC, AS WELL AS LATE MAIL, MODIFICATIONS IF THE BIDDER SUSTAINS THE BURDEN OF PROOF THAT IS PLACED UPON HIM REGARDING DELAY IN TELEGRAPHIC TRANSMISSION. ACCORDINGLY, WITHOUT REGARD TO THE PROVISIONS OF PARAGRAPH S, WHICH SPECIFICALLY AUTHORIZE CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS TIMELY TRANSMITTED BY BIDDERS BUT DELAYED BY THE TELEGRAPH COMPANY WITHOUT FAULT OF THE BIDDERS, WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT W. A. APPLE MANUFACTURING, INC., HAS SUSTAINED THE BURDEN OF PROVING THAT ITS TELEGRAPHIC MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN AMPLE TIME TO REACH THE CONTRACTING OFFICER BEFORE THE TIME SET FOR BID OPENING, ALLOWING FOR ALL NORMAL, USUAL AND FORESEEABLE DELAYS. ITS BID AS MODIFIED BY THE TELEGRAM IN QUESTION MAY THEREFORE PROPERLY BE CONSIDERED FOR AWARD, AND YOUR PROTEST IS DENIED.