B-155061, OCT. 9, 1964

B-155061, OCT. 9, 1964

TO KINGS POINT INDUSTRIES, INC.:

WE REFER TO YOUR LETTER DATED AUGUST 24, 1964, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DSA-7-64-3082, TO OTHER THAN YOUR CONCERN. AN AWARD UNDER THIS INVITATION HAS NOT BEEN MADE.

THIS INVITATION ISSUED JUNE 10, 1964, WAS FOR THE PROCUREMENT OF WATER STERILIZER BAGS IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS UNDER ITEM 1. THIS ITEM WAS SUBDIVIDED INTO ITEM 1A FOR 1,015 OF THE BAGS F.O.B. MEMPHIS, TENNESSEE, AND ITEM 1B FOR 655 OF THE BAGS F.O.B. OGDEN, UTAH. THE INITIAL PAGE OF STANDARD FORM 30 (OCTOBER 1957 EDITION) PROVIDED IN PERTINENT PART AS FOLLOWS:

"ISSUED BY DEFENSE CONSTRUCTION SUPPLY CENTER

DIRECTORATE OF PROCUREMENT AND PRODUCTION

P.O. BOX 2059

"ADDRESS COLUMBUS, OHIO 43216

"BUYER'S NAME E. DRINOCZE TELEPHONE 236-3415 AREA CODE 614"

DIRECTLY BELOW THIS INFORMATION THERE WAS THE FOLLOWING LANGUAGE:

"SEALED BIDS IN DUPLICATE SUBJECT TO (1) THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, (2) THE ATTACHED SCHEDULE, (3) GENERAL PROVISIONS (STANDARD FORM 32, SEPTEMBER 1961 EDITION), WHICH ARE INCORPORATED HEREIN BY REFERENCE, AND (4) SUCH OTHER CONTRACT PROVISIONS AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED BY REFERENCE IN THE SCHEDULE, WILL BE RECEIVED AT THE ABOVE OFFICE UNTIL 10:30 O-CLOCK A.M., EASTERN STD. TIME, 25 JUNE 1964 (DATE) AND AT THAT TIME PUBLICLY OPENED, FOR FURNISHING THE SUPPLIES OR SERVICES DESCRIBED IN THE ATTACHED SCHEDULE.'

PARAGRAPH 1 (E) UNDER THE "CAUTION TO BIDDERS" ENTITLED "HAND CARRIED BIDS" PROVIDED AS OLLOWS:

"HAND CARRIED BIDS: HAND CARRIED BIDS MUST BE DEPOSITED WITH THE RECEPTIONIST LOCATED IN WAREHOUSE 12, SECTION 1, BETWEEN THE HOURS OF 0800 AND 1600 MONDAY THRU FRIDAY, EXCLUSIVE OF HOLIDAYS. THE DEFENSE CONSTRUCTION SUPPLY CENTER, FORMERLY KNOWN AS THE COLUMBUS GENERAL DEPOT, IS LOCATED ON EAST BROAD STREET IN COLUMBUS, OHIO. WAREHOUSE 12 IS MOST READILY ACCESSIBLE FROM THE MAIN GATE WHICH IS OPPOSITE 4005 EAST BROAD STREET. HAND CARRIED BIDS WHICH ARE NOT DEPOSITED BEFORE THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED.'

CLAUSE 2 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" PROVIDED THAT BIDS MIGHT BE MODIFIED BY TELEGRAM PROVIDED THAT THE TELEGRAM WAS RECEIVED PRIOR TO THE TIME OF BID OPENING. PARAGRAPH 4 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (SUPPLY CONTRACT)" WHICH AMENDED PARAGRAPH 4 OF THE TERMS AND CONDITIONS ON THE REVERSE SIDE OF STANDARD FORM 30 PROVIDED:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (JAN 1964)

(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 TELEGRAM 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 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.'

BIDS WERE OPENED ON JUNE 25, 1964, AT 10:30 A.M. (E.S.T.). THE LOW BID, SUBMITTED BY MEESE, INCORPORATED, MADISON, INDIANA, WAS DETERMINED TO BE NONRESPONSIVE AND WAS REJECTED. YOUR BID AS RECEIVED QUOTED A PRICE OF $28.70 FOR EACH OF THE UNITS UNDER ITEMS 1A AND 1B. THE BID OF LITE INDUSTRIES, INC., 57 STATE STREET, PATERSON, NEW JERSEY, 07501, AS RECEIVED QUOTED PRICES OF $35.00 FOR EACH OF THE UNITS UNDER ITEMS 1A AND 1B. ON JUNE 26, 1964, A TELEGRAM FROM LITE INDUSTRIES REFERRING TO THIS INVITATION WAS DELIVERED TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION. THIS TELEGRAM HAD BEEN RECEIVED AT THE TELETYPE BRANCH AT THE CENTER AT 3:27 P.M. ON JUNE 24, 1964, SOME 19 HOURS PRIOR TO BID OPENING. LITE'S TELEGRAM AS DELIVERED STATED IN PART: ,RETURNED OUR PRICE ON ITEM NO. 1 BY $7.77 EACH.' AFTER BID OPENING, THE DIRECTORATE OF PROCUREMENT AND PRODUCTION RECEIVED YOUR TELEGRAM REDUCING YOUR UNIT PRICE ON ITEM 1 BY $2.00. THIS TELEGRAM WAS RECEIVED BY THE TELETYPE BRANCH OF THE CENTER AT 11:00 A.M., ABOUT ONE HALF HOUR AFTER BID OPENING.

IN REGARD TO THE MODIFICATION SUBMITTED BY LITE INDUSTRIES, A SWORN STATEMENT DATED JULY 29, 1964, FROM THE MANAGER OF WESTERN UNION STATES AS FOLLOWS:

"THROUGH MECHANICAL MALFUNCTION OF OUR FACSIMILE RECEIVING APPARATUS THE FIRST WORD OF THE ABOVE MESSAGE CAME THROUGH INDISTINCT. OUR EMPLOYEE IN CHARGE FAILED TO QUESTION SENDER AS TO THE CORRECT WORDAGE AND INSTEAD, ON HIS OR HER OWN INITIATIVE, CONSTRUED THE FIRST WORD TO BE ,RETEL" AND TRANSMITTED THE MESSAGE ACCORDINGLY. UPON CLOSE EXAMINATION OF THE MESSAGE AS RECEIVED AT OUR OFFICE WE CAN CLEARLY CONFIRM THAT THE FIRST WORD WAS A SIX (6) LETTER WORD; THAT THE FIRST TWO (2) LETTERS WERE "RE" AND THE LAST LETTER WAS "E.'

"I HAVE PERSONALLY SEEN THE SUBSCRIBER'S ORIGINAL MESSAGE WHICH CAN POSITIVELY BE IDENTIFIED AS THE ONE WHICH WENT THROUGH THE MACHINE AND WHICH BEARS THE RED LINE IDENTIFICATION AT THE TOP. IT CLEARLY SHOWS THE FIRST WORD OF THE MESSAGE TO BE "REDUCE.'"

WITH RESPECT TO YOUR LATE TELEGRAPH MODIFICATION A LETTER DATED JULY 7, 1964 FROM WESTERN UNION STATES AS FOLLOWS:

"OUR COLUMBUS OFFICE REPORTS THAT YOUR MESSAGE, WHICH WAS FILED AT 10:24 A.M. EDT, (9:24 E.S.T.) WAS RECEIVED AT 10:09 A.M. EST. IT WAS SWITCHED FOR TRANSMISSION OVER THE TIELINE THROUGH WHICH WE SERVE THE DEFENSE CONSTRUCTION SUPPLY CENTER AT 10:23 A.M. HOWEVER, BECAUSE OF SOME EQUIPMENT TROUBLE ON THE TIELINE IT WAS NECESSARY TO TRANSMIT IT OVER THEIR TELEX AT 11:00 A.M. EST.'

ANOTHER LETTER FROM WESTERN UNION DATED AUGUST 14, 1964, STATES THAT YOUR MESSAGE WHICH WAS FILED AT 10:24 A.M. (9:24 A.M., E.S.T.) WAS RECEIVED IN SUFFICIENT TIME TO BE DELIVERED TO THE DEFENSE CONSTRUCTION SUPPLY CENTER BY 10:30 A.M., THE BID OPENING TIME. A LETTER FROM WESTERN UNION DATED SEPTEMBER 9, 1964, STATES THAT THE AVERAGE TRANSMISSION TIME FOR MESSAGES ADDRESSED TO DCSC DURING THE MONTH OF JUNE 1964 WAS 34.6 MINUTES FROM ALL CITIES AND TRANSMISSION TIME FROM ANY CITY TO DCSC OF ONE HOUR OR LESS WOULD NOT BE CONSIDERED ABNORMAL. DCSC TAKES THE POSITION THAT YOUR TELEGRAM UNDER NORMAL CONDITIONS WOULD HAVE BEEN RECEIVED BY DCSC BY 10:23 A.M. THE PLACE WHERE BIDS WERE OPENED, THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, IS ABOUT ONE-HALF MILE FROM THE PLACE WHERE TELEGRAPHIC BIDS ARE RECEIVED, THE TELETYPE BRANCH OF THE CENTER.

YOUR LETTER TO OUR OFFICE CONTENDS THAT YOUR LATE MODIFICATION SHOULD BE CONSIDERED SINCE UNDER NORMAL CONDITIONS IT COULD HAVE BEEN RECEIVED AT THE CENTER SOME SEVEN MINUTES BEFORE BID OPENING. IN THIS CONNECTION YOU CONTEND THAT RECEIPT AT THE INSTALLATION IS SUFFICIENT SINCE NO OFFICE FOR RECEIPT OF BIDS IS DESIGNATED IN THIS INVITATION. TO SUPPORT THIS POSITION YOU POINT OUT THAT CLAUSE 11 OF THE TERMS AND CONDITIONS (MARCH 10, 1964) ENTITLED "DRAWINGS AND SPECIFICATIONS" PROVIDES THAT COPIES OF SPECIFICATIONS AND DRAWINGS MAY BE EXAMINED AT THE CENTER. YOUR LETTER STATES THAT EVEN IF A FINDING IS MADE THAT AN OFFICE WAS SUFFICIENTLY DESIGNATED IN THIS INVITATION, THE PROCEDURES AT DCSC FOR THE TRANSMITTAL OF TELEGRAMS AFTER RECEIPT AT THE CENTER CONSTITUTES MISHANDLING AND THEREFORE YOUR MODIFICATION SHOULD BE CONSIDERED ON THIS BASIS. DCSC HAS ADVISED THAT THE NORMAL PROCEDURE AT THE CENTER IS TO ROUTE MESSAGES INCLUDING TELEGRAMS RECEIVED AT THE TELETYPE BRANCH OF DCSC THROUGH ROUTINE MESSAGE HANDLING FACILITIES. TELETYPES ARE PICKED UP FROM THE TELETYPE BRANCH SEVEN OR EIGHT TIMES DAILY AND THERE ARE FOUR DELIVERIES TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION AT APPROXIMATELY 8:15 A.M., 10:30 M., 1:15 P.M. AND 2:45 P.M.

THE BOX IDENTIFIED IN THE SPACE FOR THE ISSUING OFFICE ON STANDARD FORM 30, QUOTED ABOVE, IS LOCATED AT THE POST OFFICE IN COLUMBUS, OHIO. WE ARE ADVISED THAT THIS BOX WAS ORIGINALLY FOR THE PURPOSE OF RECEIVING BIDS. SUBSEQUENTLY, THIS BOX HAS ALSO BEEN USED FOR OTHER CORRESPONDENCE BUT THE BOX NUMBER IS NOT PART OF THE OFFICIAL ADDRESS OF THE CENTER. THEREFORE, AS FAR AS BIDS ARE CONCERNED THE INVITATION SHOWS THAT BIDS MUST BE RECEIVED AT THE BOX DESIGNATED IN THE INVITATION PRIOR TO BID OPENING RATHER THAN MERELY BEING RECEIVED AT THE CENTER. ALSO, THE PROVISION FOR "HAND CARRIED BIDS," QUOTED ABOVE, CLEARLY INDICATES THAT SUCH BIDS MUST BE RECEIVED AT THE DIRECTORATE OF PROCUREMENT AND PRODUCTION PRIOR TO BID OPENING RATHER THAN MERELY BEING DELIVERED TO THE CENTER. IF A MODIFICATION SENT BY MAIL OR HAND CARRIED WERE LATE IT WOULD NOT BE SUFFICIENT TO SHOW THAT SUCH MODIFICATION WAS RECEIVED OR COULD HAVE BEEN RECEIVED BY THE CENTER PRIOR TO BID OPENING. WE SEE NO REASON WHY RECEIPT AT THE CENTER SHOULD BE SUFFICIENT BECAUSE A BIDDER CHOOSES TO MODIFY HIS BID BY TELEGRAM RATHER THAN BY SOME OTHER MEANS. THE RULE IS CLEAR THAT IT IS SOLELY THE BIDDER'S RESPONSIBILITY THAT A MODIFICATION BE DISPATCHED IN SUFFICIENT TIME PRIOR TO BID OPENING TO BE ANNOUNCED AT THE PUBLIC OPENING OF BIDS. SEE 39 COMP. GEN. 586 AND 40 ID. 290. IT HAS BEEN SHOWN THAT YOUR MODIFICATION COULD HAVE BEEN RECEIVED BY THE CENTER AT 0:23 A.M.; HOWEVER, THIS WOULD ONLY LEAVE SOME SEVEN MINUTES FOR THE TRANSMITTAL OF YOUR MODIFICATION FOR ANNOUNCEMENT AT THE PUBLIC BID OPENING. WE DO NOT THINK THAT THIS IS SUFFICIENT AND YOUR MODIFICATION THEREFORE MAY NOT BE CONSIDERED. FOR THE PURPOSES OF THIS PROCUREMENT WE FIND IT UNNECESSARY TO DECIDE WHETHER THE PROCEDURES FOR TRANSMITTING TELEGRAMS AFTER RECEIPT AT THE TELETYPE BRANCH CONSTITUTES MISHANDLING. CLAUSE II OF THE TERMS AND CONDITIONS CITED BY YOU IN SUPPORT OF YOUR POSITION DEALS WITH THE INSPECTION OF DRAWINGS AND SPECIFICATIONS AND THEREFORE WOULD HAVE NO APPLICABILITY TO THE CONSIDERATION OF A LATE MODIFICATION.

WITH RESPECT TO THE CONSIDERATION OF LITE'S TELEGRAPHIC MODIFICATION WHICH WAS RECEIVED BY DCSC SOME 19 HOURS BEFORE BID OPENING BUT WAS NOT DELIVERED TO THE DIRECTORATE OF PROCUREMENT AND PRODUCTION UNTIL AFTER BID OPENING, THERE CAN BE NO QUESTION BUT THAT THE DELAY WAS DUE TO MISHANDLING BY THE GOVERNMENT. IN REGARD TO THE "GARBLING" OF LITE'S MESSAGE BY THE TELEGRAPH COMPANY THE WEIGHT OF AUTHORITY SUPPORTS THE VIEW THAT WESTERN UNION IS AN INDEPENDENT CONTRACTOR, OR AT MOST AN AGENT WHOSE AUTHORITY TO BIND THE SENDER IS LIMITED TO THE TRANSMISSION OF THE MESSAGE ACTUALLY GIVEN IT. SEE WESTERN UNION TELEGRAPH COMPANY V. COWIN AND CO., 20 F.2D 103; SEE ALSO ANNOTATION AT 42 A.L.R. 293. IT HAS BEEN SHOWN THAT LITE'S MESSAGE AS GIVEN TO WESTERN UNION WAS "REDUCE OUR PRICE ON ITEM NO. 1 BY $7.77 EACH.' IN THESE CIRCUMSTANCES, WE FIND THAT LITE'S TELEGRAM MAY BE CONSIDERED AS ACTUALLY GIVEN TO WESTERN UNION.