B-153432, MAR. 31, 1964

B-153432: Mar 31, 1964

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TO CENTURY TOOL COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3. A TOTAL OF 40 BIDS WAS SOLICITED AND 5 BIDS WERE RECEIVED. WAS RECEIVED BY THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER. IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AND APPLICABLE REGULATIONS. DSA-1-3713-64-E WAS AWARDED TO LITE INDUSTRIES. AN INVESTIGATION OF THE FACTS RELATING TO THE RECEIPT OF THE LATE TELEGRAPHIC MODIFICATION FROM LITE INDUSTRIES REVEALED THAT THE TELEGRAM WAS SENT BY THE BIDDER AT 11:58 A.M. THAT UNDER THE NORMAL COURSE OF EVENTS SUCH A TELEGRAM SHOULD HAVE BEEN DELIVERED TO THE DEFENSE SUPPLY AGENCY BY 1 P.M.

B-153432, MAR. 31, 1964

TO CENTURY TOOL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1964, PROTESTING AGAINST THE ACTION OF THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA 1, PENNSYLVANIA, IN CONSIDERING A TELEGRAPHIC BID MODIFICATION SUBMITTED BY LITE INDUSTRIES, INC., IN RESPONSE TO INVITATION FOR BIDS NO. DSA-1-64 539.

THE SUBJECT INVITATION, ISSUED ON DECEMBER 11, 1963, REQUESTED BIDS TO BE OPENED ON JANUARY 9, 1964, AT 2 P.M., E.S.T., AND REQUIRED THE MANUFACTURE OF 20,775 EACH SLING, UNIVERSAL, INDIVIDUAL LOAD CARRYING. A TOTAL OF 40 BIDS WAS SOLICITED AND 5 BIDS WERE RECEIVED. AT 2:15 P.M., ONLY 15 MINUTES AFTER BID OPENING TIME, A TELEGRAPHIC MODIFICATION TO ITS BID, SUBMITTED BY LITE INDUSTRIES, WAS RECEIVED BY THE DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER. THIS TELEGRAPHIC MODIFICATION REDUCED LITE'S BID BY $0.59 PER UNIT AND MADE ITS BID THE LOW BID FOR THE ENTIRE QUANTITY. AFTER INVESTIGATING THE CIRCUMSTANCES RELATIVE TO THE LATE TELEGRAPHIC MODIFICATION, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS AND APPLICABLE REGULATIONS, THE LATE MODIFICATION SHOULD BE ACCEPTED. ACCORDINGLY, ON JANUARY 21, 1964, CONTRACT NO. DSA-1-3713-64-E WAS AWARDED TO LITE INDUSTRIES, C., FOR 20,775 EACH SLING, UNIVERSAL, INDIVIDUAL LOAD CARRYING, AT $4.78 EACH FOR A TOTAL CONTRACT PRICE OF $99,304.50.

AN INVESTIGATION OF THE FACTS RELATING TO THE RECEIPT OF THE LATE TELEGRAPHIC MODIFICATION FROM LITE INDUSTRIES REVEALED THAT THE TELEGRAM WAS SENT BY THE BIDDER AT 11:58 A.M. FROM PATERSON, NEW JERSEY, AND THAT UNDER THE NORMAL COURSE OF EVENTS SUCH A TELEGRAM SHOULD HAVE BEEN DELIVERED TO THE DEFENSE SUPPLY AGENCY BY 1 P.M., E.S.T. HOWEVER, THE INFORMATION RECEIVED FROM THE CUSTOMER SERVICE OF THE PHILADELPHIA OFFICE OF THE WESTERN UNION INDICATES THAT THE TELEGRAM WAS RECEIVED IN THE PHILADELPHIA OFFICE OF THE WESTERN UNION AT 12:07 P.M., E.S.T., AND WAS INADVERTENTLY TRANSMITTED BY WESTERN UNION TO THE NAVAL AVIATION SUPPLY DEPOT, PHILADELPHIA, PENNSYLVANIA. THE NAVAL AVIATION SUPPLY DEPOT NOTIFIED WESTERN UNION OF THE ERROR AT 1:43 P.M., AND WESTERN UNION THEN TRANSMITTED THE TELEGRAM TO THE DEFENSE SUPPLY AGENCY ON ITS TIE LINE AT 2:15 P.M. ON THIS EVIDENCE AND ON THE BASIS OF APPLICABLE REGULATIONS, THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAPHIC MODIFICATION COULD BE CONSIDERED IN THE EVALUATION OF THE LITE INDUSTRIES' BID. YOU QUESTION THE DETERMINATION REGARDING THE TIME FACTOR INVOLVING THE TELEGRAPHIC BID MODIFICATION FROM LITE INDUSTRIES, AND THE MISDIRECTION OF THIS BID MODIFICATION, SINCE IT WAS NOT RECEIVED PRIOR TO BID OPENING.

PARAGRAPH 2 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (STANDARD FORM 30, OCT. 1957 EDITION) PROVIDES 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.'

PARAGRAPH 60 OF THE ADDITIONAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES AS FOLLOWS:

"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:

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

(2) 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

(3) IF SUBMITTED BY MAIL (OR BY 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.'

IN THIS CONNECTION, SECTION 2-305 OF THE ARMED SERVICES PROCUREMENT REGULATION, PROVIDES THAT A LATE MODIFICATION SHALL BE SUBJECT TO THE RULES STATED FOR LATE BIDS IN ASPR 2-303. 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 BIDDERS OF OTHER BIDS. 37 COMP. GEN. 595; 24 ID. 350.

THE LANGUAGE OF PARAGRAPHS 2 AND 60 OF THE INVITATION, WHEN INTERPRETED IN THE LIGHT OF CURRENT PROCUREMENT REGULATIONS AND DECISIONS OF OUR OFFICE, ALLOWS CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS IF THE BIDDER SUSTAINS THE BURDEN OF PROOF THAT IS PLACED UPON HIM REGARDING DELAY IN TELEGRAPHIC TRANSMISSION. ACCORDINGLY, SINCE THE RECORD SHOWS THAT THE LATE TELEGRAPHIC BID MODIFICATION WAS TIMELY FILED BY LITE INDUSTRIES WE AGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT LITE INDUSTRIES 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 WAS PROPERLY CONSIDERED FOR AWARD, AND YOUR PROTEST IS DENIED.