B-155247, DEC. 21, 1964

B-155247: Dec 21, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24. WHICH WAS ISSUED ON JULY 31. THE RECORD SHOWS THAT BIDS WERE OPENED AT 10: 00 A.M. TELEPHONE MESSAGE WAS RECEIVED AT THE BASE PROCUREMENT OFFICE BEFORE THE BID OPENING INDICATING THAT A MODIFICATION HAD BEEN RECEIVED IN THE BASE COMMUNICATIONS OFFICE. WHICH WAS CONFIRMED BY REGISTERED LETTER. WAS ENTITLED TO CONSIDERATION UNDER THE PROVISIONS OF INVITATION AND THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THE BID OF YOUR FIRM AS MODIFIED WAS THE LOWEST RECEIVED. THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAPHIC MODIFICATION OF YOUR BID WAS DISPATCHED FROM WASHINGTON. WAS RECEIVED AT THE BASE COMMUNICATIONS OFFICE.

B-155247, DEC. 21, 1964

TO SECURITY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1964, PROTESTING THE ACTION OF THE BASE PROCUREMENT OFFICE, BAKALAR AIR FORCE BASE, COLUMBUS, INDIANA, IN REJECTING YOUR LATE TELEGRAPHIC BID MODIFICATION SUBMITTED IN RESPONSE TO INVITATION NO. 12-616-65-2.

THE INVITATION, WHICH WAS ISSUED ON JULY 31, 1964, REQUESTED BIDS TO BE SUBMITTED TO THE BASE PROCUREMENT OFFICE, BAKALAR AIR FORCE BASE, COLUMBUS, INDIANA, TO BE OPENED AT 10: 00 A.M., S.T., ON AUGUST 31, 1964, FOR THE INSTALLATION OF FIRE DETECTION ALARM SYSTEMS IN 21 BARRACKS BUILDINGS ON THE BASE.

THE RECORD SHOWS THAT BIDS WERE OPENED AT 10: 00 A.M., E.S.T; THE CONTRACTING OFFICER RECEIVED A WESTERN UNION TELEGRAM FROM YOUR FIRM REDUCING YOUR BID PRICE BY $1,000 FOR ITEM 1 AND $800 FOR ITEM 2, RESULTING IN AN AGGREGATE BID PRICE OF $7,975, FOR BOTH ITEMS. TELEPHONE MESSAGE WAS RECEIVED AT THE BASE PROCUREMENT OFFICE BEFORE THE BID OPENING INDICATING THAT A MODIFICATION HAD BEEN RECEIVED IN THE BASE COMMUNICATIONS OFFICE. IF THE TELEGRAPHIC MODIFICATION OF YOUR BID, WHICH WAS CONFIRMED BY REGISTERED LETTER, WAS ENTITLED TO CONSIDERATION UNDER THE PROVISIONS OF INVITATION AND THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE BID OF YOUR FIRM AS MODIFIED WAS THE LOWEST RECEIVED.

THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAPHIC MODIFICATION OF YOUR BID WAS DISPATCHED FROM WASHINGTON, D.C., AT 10: 07 A.M., E.D.T., ON AUGUST 31, 1964 (43 MINUTES PRIOR TO THE SCHEDULED BID OPENING), AND WAS RECEIVED AT THE BASE COMMUNICATIONS OFFICE, BAKALAR AIR FORCE BASE, COLUMBUS, INDIANA,AT 9: 25 A.M., E.S.T. IT IS REPORTED THAT DUE TO A CHANGE OF OPERATORS AT THE BASE COMMUNICATIONS OFFICE THE TELEGRAM WAS NOT HANDLED AS EFFICIENTLY AS IT NORMALLY WOULD HAVE BEEN AND THAT BECAUSE OF THIS SITUATION THE TELEGRAM WAS NOT RECEIVED BY THE BASE PROCUREMENT OFFICE UNTIL 10: 29 A.M., 29 MINUTES AFTER THE SCHEDULED BID OPENING. THE RECORD SHOWS THAT AN OFFICIAL OF THE LOCAL WESTERN UNION OFFICE ADVISED THE CONTRACTING OFFICER THAT THE NORMAL TIME REQUIRED FOR DELIVERY IN THIS CASE WOULD BE FROM ONE TO ONE AND ONE-HALF HOURS.

BASED UPON THE ABOVE FACTS, THE CONTRACTING OFFICER CONCLUDED THAT THE TELEGRAPHIC MODIFICATION OF YOUR BID WAS NOT DISPATCHED IN TIME FOR NORMAL COMMERCIAL DELIVERY TO THE BASE PROCUREMENT OFFICE BY BID OPENING TIME AND WAS THEREFORE NOT ACCEPTABLE FOR CONSIDERATION. ON SEPTEMBER 3, 1964, THE CONTRACTING OFFICER AWARDED CONTRACT NO. AF12 (616) -479 IN THE AMOUNT OF $7,983 TO THE TRI-STATE PROTECTIVE COMPANY.

PARAGRAPH 7 (A), INSTRUCTIONS TO BIDDERS, OF THIS INVITATION PROVIDES:

"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 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 (POSTMARKED) 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 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 SERVICE 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.'

ASPR 2-305 DEFINES "LATE MODIFICATIONS" AND PROVIDES THAT THE RULES AND PROCEDURES CONTAINED IN ASPR 2-303 IN REGARD TO LATE BIDS ALSO APPLY TO TELEGRAPHIC MODIFICATIONS WHICH ARE RECEIVED AFTER BID OPENING. ASPR 2- 303.2 ENTITLED "CONSIDERATION FOR AWARD" PROVIDES:

"A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

" (I) IT IS RECEIVED BEFORE AWARD; AND EITHER

" (II) IT WAS 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 THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

" (III) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. * * *"

THE RECORD SHOWS THAT YOUR FIRM'S TELEGRAPHIC MODIFICATION WAS RECEIVED IN THE BASE COMMUNICATIONS OFFICE AT THE BAKALAR AIR FORCE BASE AT 9:25 A.M., E.S.T., 35 MINUTES BEFORE THE BID OPENING AT 10:00 A.M., E.S.T. IT IS REPORTED THAT THE AVERAGE TIME FOR THE BASE COMMUNICATIONS OFFICE TO DELIVER A TELEGRAM TO THE BASE PROCUREMENT OFFICE IS 15 MINUTES. IN ITS REPORT THE DEPARTMENT OF THE AIR FORCE STATES THAT IN VIEW OF THE FOREGOING, IT MUST CONCLUDE, IN ACCORDANCE WITH ASPR 2-303 AND ASPR 2-305, THAT YOUR FIRM'S TELEGRAPHIC BID MODIFICATION WAS RECEIVED LATE DUE TO MISHANDLING ON THE PART OF GOVERNMENT PERSONNEL. WE ARE OF THE SAME OPINION AS THE ADMINISTRATIVE OFFICE AND CONSEQUENTLY, WE FIND THAT PURSUANT TO AUTHORITY CONTAINED IN ASPR 2-303 AND ASPR 2-305 YOUR FIRM'S BID AS MODIFIED PROPERLY SHOULD HAVE BEEN CONSIDERED FOR AWARD. SEE 37 COMP. GEN. 604; 42 ID. 508; AND 43 ID. 317.

WHILE WE HAVE NOT DETERMINED THAT YOUR FIRM'S BID AS MODIFIED SHOULD HAVE BEEN CONSIDERED FOR AWARD UNDER THE SUBJECT INVITATION, AND IN SOME CASES WE MIGHT DIRECT CANCELLATION OF AN AWARD MADE UNDER SIMILAR CIRCUMSTANCES, IT IS REGRETTED THAT SUCH ACTION MAY NOT BE TAKEN HERE SINCE IT IS REPORTED THAT THE WORK REQUIRED BY THE CONTRACT WAS COMPLETED BY THE TRI- STATE PROTECTIVE COMPANY ON NOVEMBER 18, 1964.