B-155927, FEB. 9, 1965

B-155927, FEB. 9, 1965

TO THE HONORABLE SECRETARY OF THE NAVY:

WE HAVE RECEIVED A LETTER DATED JANUARY 12, 1965, FROM THE DIRECTOR OF CONTRACTS, BUREAU OF SHIPS (YOUR REFERENCE SER 159-2), REQUESTING AN ADVANCE DECISION ON WHETHER IT WOULD BE PROPER TO CONSIDER A LATE TELEGRAPHIC BID MODIFICATION SUBMITTED IN CONNECTION WITH INVITATION FOR BIDS NO. 600-206-65-S.

THE ABOVE INVITATION ISSUED ON NOVEMBER 20, 1964, BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C., INVITED BIDS FOR 162 IM-153 ( ( (PD ALARM DOSIMETERS ALONG WITH A SPECIFIED NUMBER OF TECHNICAL MANUALS AND REPAIR PARTS. AS PROVIDED FOR BY THE INVITATION, BIDS WERE SCHEDULED FOR OPENING AT THE UNITED STATES NAVY PURCHASING OFFICE ON DECEMBER 22, 1964, AT 10:30 A.M., E.S.T.NUCLEAR CORPORATION OF AMERICA, NUCLEAR DIVISION, HAVING SUBMITTED A UNIT PRICE OF $246 AND A TOTAL BID PRICE OF $39,852 WAS THE APPARENT LOW BIDDER. ELECTRO NEUTRONICS, INC., THE SECOND LOW BIDDER, SUBMITTED A UNIT PRICE BID OF $250 AND A TOTAL BID OF $40,500.

SHORTLY AFTER 11:00 A.M., E.S.T., ON THE SAME DAY, THE CONTRACT NEGOTIATOR RECEIVED A TELEGRAM FROM THE SECOND LOW BIDDER (ELECTRO NEUTRONICS, INC.) REDUCING ITS PER UNIT BID BY $10.50 AND ITS TOTAL BID BY $1,701. ACCEPTANCE OF THIS MODIFICATION WOULD ESTABLISH ELECTRO NEUTRONICS, INC., AS THE LOW BIDDER.

IN THE REPORT TO THIS OFFICE, IT IS STATED THAT AFTER CAREFUL INQUIRY IT WAS FOUND THAT THE TELEGRAM FROM ELECTRO-NEUTRONICS WAS DISPATCHED VIA WESTERN UNION FROM EMERYVILLE, CALIFORNIA, ON DECEMBER 21, 1964, AT 2:10 P.M., PACIFIC STANDARD TIME, CORRESPONDING TO 5:10 P.M., E.S.T., DECEMBER 21, 1964. THE MESSAGE WAS RECEIVED AND FILED AT THE NAVY RELAY STATION, CHELTENHAM, MARYLAND, AT 5:30 P.M., AND WAS TRANSMITTED TO THE COMMUNICATION CENTER, MAIN NAVY BUILDING, 18TH AND CONSTITUTION AVENUE, N.W., WASHINGTON, D.C., AT 6:32 P.M., E.S.T. HAVING BEEN RECEIVED AFTER REGULAR BUSINESS HOURS AND NOT CONTAINING ANY INDICIA OF SPECIAL URGENCY, THE MESSAGE WAS PROCESSED IN THE NORMAL ROUTINE.

ALTHOUGH THE INVITATION PROVIDES IN CLAUSE 2, UNDER THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS THAT TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS OTHERWISE AUTHORIZED, THE ABOVE CLAUSE ALLOWS FOR MODIFICATION OF A BID BY MEANS OF A TELEGRAPHIC NOTICE. CLAUSE 4 OF THESE SAME INSTRUCTIONS, AS AMENDED, PROVIDES:

"4. 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 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 SERVING IT.'

IN CONNECTION THEREWITH, SECTION 2-305 OF THE ARMED SERVICES PROCUREMENT REGULATION DEFINES ,LATE MODIFICATIONS" AND PROVIDES THAT SUCH MODIFICATION SHALL BE SUBJECT TO THE RULES AND PROCEDURES APPLICABLE TO LATE BIDS AS SET FORTH IN ASPR 2-303. 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 ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE 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.'

UNDER ASPR 2-303.2 (III), QUOTED ABOVE, A LATE BID MODIFICATION IS PROPER FOR CONSIDERATION ONLY IF THE LATENESS RESULTS FROM A MISHANDLING ON THE PART OF GOVERNMENT PERSONNEL AT THE INSTALLATION. EXAMINATION OF THE FACTS IN THIS CASE, HOWEVER, DISCLOSE THAT THE TELEGRAPHIC MODIFICATION WAS ADDRESSED TO MR. V. STRICKLAND AT THE BUREAU OF SHIPS RATHER THAN TO THE NAVY PURCHASING OFFICE AS REQUIRED BY THE SUBJECT INVITATION. UNDER THESE CIRCUMSTANCES AND IN THE ABSENCE OF ANY SHOWING OF MISHANDLING ON THE PART OF THE GOVERNMENT IT MUST BE CONCLUDED THAT THE LATENESS IN DELIVERY WAS ATTRIBUTABLE SOLELY TO THE BIDDER'S FAILURE TO PROPERLY ADDRESS HIS MODIFICATION. WE ARE THEREFORE OF THE VIEW THAT ELECTRO- NEUTRONIC'S TELEGRAPHIC MODIFICATION IS NOT PROPER FOR CONSIDERATION.