B-156625, JUL. 12, 1965

B-156625: Jul 12, 1965

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ESQ.: REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF APRIL 24. BIDDERS WERE ADVISED THAT MODIFICATIONS OF BIDS ALREADY SUBMITTED. IN PARAGRAPH 7 OF THE INSTRUCTIONS BIDDERS WERE ADVISED AS FOLLOWS: "7. 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 * * * IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY * * * BY THE TELEGRAPH COMPANY * * * FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *" UPON THE OPENING OF BIDS AT THE SCHEDULED TIME. WAS FOUND TO HAVE SUBMITTED THE LOW BID IN THE AMOUNT OF $936.

B-156625, JUL. 12, 1965

TO H. HAYDEN RECTOR, ESQ.:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF APRIL 24, 1965, WITH ENCLOSURES, AND YOUR SUPPLEMENTARY LETTER OF JUNE 3, 1965, WITH ENCLOSURES, PROTESTING ON BEHALF OF GREENHUT CONSTRUCTION COMPANY, INC., AGAINST THE REJECTION OF ITS BID FOR WORK IN CONNECTION WITH CONSTRUCTION OF OFFICERS QUARTERS AT KEESLER AIR FORCE BASE, MISSISSIPPI, SPECIFICATION NO. 67254/65, NBY-67254.

THE SUBJECT INVITATION, ISSUED BY THE DEPARTMENT OF THE NAVY, BUREAU OF YARDS AND DOCKS, ADVISED INTERESTED PARTIES (SMALL BUSINESS CONCERNS) THAT SEALED BIDS FOR THE WORK INVOLVED WOULD BE RECEIVED UNTIL 3:00 P.M., CENTRAL STANDARD TIME, APRIL 15, 1965, IN THE OFFICE OF THE OFFICER IN CHARGE OF CONSTRUCTION, EIGHTH NAVAL DISTRICT, BUILDING 16, HEADQUARTERS SUPPORT ACTIVITY (FORMERLY U.S. NAVAL STATION), NEW ORLEANS, LOUISIANA, AND AT THAT TIME PUBLICLY OPENED. IN PARAGRAPH 5 OF INSTRUCTIONS TO BIDDERS, STANDARD FORM 22, JANUARY 1961 EDITION, INCORPORATED IN THE INVITATION, BIDDERS WERE ADVISED THAT MODIFICATIONS OF BIDS ALREADY SUBMITTED, INCLUDING TELEGRAPHIC MODIFICATIONS, WOULD BE CONSIDERED "IF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS BY THE TIME SET FOR OPENING OF BIDS.' ALSO, IN PARAGRAPH 7 OF THE INSTRUCTIONS BIDDERS WERE ADVISED AS FOLLOWS:

"7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. 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 * * * IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY * * * BY THE TELEGRAPH COMPANY * * * FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *"

UPON THE OPENING OF BIDS AT THE SCHEDULED TIME, ROY ANDERSON, JR., INC., GULFPORT, MISSISSIPPI, WAS FOUND TO HAVE SUBMITTED THE LOW BID IN THE AMOUNT OF $936,000, AND GREENHUT CONSTRUCTION COMPANY, INC., WAS FOUND TO HAVE SUBMITTED THE NEXT LOW BID IN THE AMOUNT OF $1,015,963. HOWEVER, AT 4:16 P.M., OF THE DATE ON WHICH BIDS WERE OPENED THE OFFICER IN CHARGE OF CONSTRUCTION (OCC) RECEIVED A TELEGRAM FROM GREENHUT ADVISING OF THE REDUCTION OF ITS BID BY THE SUM OF $97,563, TO $918,400.

BY LETTER OF APRIL 16, 1965, THE OCC ADVISED GREENHUT THAT SINCE THE TELEGRAM IN QUESTION REVEALED THAT IT WAS RELEASED BY THE WESTERN UNION TELEGRAPH COMPANY'S PENSACOLA, FLORIDA, OFFICE AT 2:21 P.M., C.S.T., ON APRIL 15, 1965, AND RECEIVED BY THE WESTERN UNION IN NEW ORLEANS, LOUISIANA, AT 2:59 P.M., C.S.T., ON THAT DATE (THE CORRECTNESS OF THIS FIGURE WAS VERIFIED BY A LETTER DATED APRIL 23, 1965, FROM THE DISTRICT MANAGER OF WESTERN UNION'S NEW ORLEANS OFFICE TO THE OCC), IT APPEARED THAT IT WAS NOT RELEASED IN SUFFICIENT TIME TO HAVE REACHED HIS OFFICE IN TIME FOR THE SCHEDULED BID OPENING AND THAT, UNLESS GREENHUT COULD FURNISH SUPPORTING EVIDENCE TO THE CONTRARY BY APRIL 23, THE TELEGRAM WOULD NOT BE CONSIDERED AS AFFECTING THE AMOUNT OF ITS BID.

IN THE MEANTIME, GREENHUT HAD WRITTEN THE OCC UNDER DATE OF APRIL 15, 1965, CONTENDING THAT THE MESSAGE HAD BEEN PLACED IN AMPLE TIME FOR DELIVERY BY NORMAL MEANS, AND THAT IT SHOULD THEREFORE BE CONSIDERED A VALID MODIFICATION OF THE BID. ON THE SAME DATE THE MANAGER OF WESTERN UNION'S PENSACOLA, FLORDIA, OFFICE ADVISED THE OCC, IN MATERIAL PART, THAT WESTERN UNION'S NEW ORLEANS OFFICE HAD REPORTED THAT THE OCC'S OFFICE WAS LOCATED FOUR MILES ACROSS THE RIVER (MISSISSIPPI RIVER) FROM ITS OFFICE AND MESSAGES WERE THEREFORE REQUIRED TO BE PHYSICALLY DELIVERED TO THE OCC'S OFFICE, WHICH WAS TIME CONSUMING AND A CIRCUMSTANCE THAT THE PENSACOLA OFFICE WAS UNAWARE OF AT THE TIME THE MESSAGE WAS FILED. THE LETTER CONCLUDED:

"UNDER CERTAIN NORMAL CONDITIONS, WE DO DELIVER TELEGRAMS WITHIN 30 MINUTES FROM TIME FILED TO DELIVERED AND MR. GREENHUT SAYS HE WAS UNDER THE IMPRESSION AND FULLY CONFIDENT THAT THE MESSAGE IN QUESTION WOULD REACH YOU BY BID OPENING TIME, NOT BEING AWARE OF THE UNUSUAL CONDITIONS WITH RESPECT TO YOUR OFFICE LOCATION AND DELIVERY METHOD INVOLVED.'

IN ACKNOWLEDGING RECEIPT OF THE LETTER FROM GREENHUT AND THE WESTERN UNION LETTER BY LETTER OF APRIL 19, THE ACTING OFFICER IN CHARGE OF CONSTRUCTION, GULF DIVISION, BUREAU OF YARDS AND DOCKS, ADVISED GREENHUT THAT THE EVIDENCE CONTAINED IN THE LETTERS WAS NOT CONSIDERED ADEQUATE TO SUBSTANTIATE THAT ITS TELEGRAM WAS FILED AND RELEASED IN TIME TO REACH THE OCC'S OFFICE AT THE SCHEDULED BID OPENING TIME. ACCORDINGLY, THE LETTER ADVISED THAT, UNLESS GREENHUT COULD FURNISH ADDITIONAL SUPPORTING EVIDENCE BY APRIL 23 TO DEMONSTRATE THAT ITS TELEGRAM SHOULD HAVE BEEN RECEIVED BY THE OCC BY THE BID OPENING TIME, THE POSITION TAKEN IN THE OCC'S LETTER OF APRIL 16 WOULD BE ADHERED TO.

BY LETTER OF APRIL 22, GREENHUT FURNISHED THE OCC WITH A COPY OF A LETTER OF THAT DATE ADDRESSED TO IT BY THE MANAGER OF WESTERN UNION'S PENSACOLA OFFICE, WITH REFERENCE TO THE MATTER, WHICH STATES:

"BASED ON YOUR EXPERIENCE IN TELEGRAPHING MODIFICATION OF BIDS TO CHARLESTON AND MOBILE, YOU HAD REASON TO BELIEVE THAT YOU HAD ALLOWED AMPLE TIME FOR DELIVERY OF YOUR MESSAGE TO NEW ORLEANS WITHIN THE TIME ALLOWED. AS PROOF OF THIS, I WOULD LIKE TO CITE SEVERAL EXAMPLES WHEN THIS SAME TYPE OF MESSAGE WAS DELIVERED WITH TIME TO SPARE:

"YOUR MESSAGE MARCH 2 TO U.S. ENGINEERS, MOBILE, ALA. WAS DELIVERED IN LESS THAN 30 MINUTES AFTER FILING.

"YOUR MESSAGE TO SOUTHEAST DIR. DIVN. YARDS AND DOCKS, CHARLESTON S.C. FILED HERE AT 11:33 AM APR. 21 WAS DELIVERED AT 1248 PM EST. OR 1148 AM CST.

"IN THE CASE OF MOBILE AND CHARLESTON, THE ACTIVITIES ARE SERVED BY A DIRECT LINE TO OUR OFFICE AND THIS REDUCES THE TIME REQUIRED FOR PHYSICAL DELIVERY. IN THE NEW ORLEANS CASE, OUR INVESTIGATION SHOWS THE 8TH NAVAL DISTRICT IS ACTUALLY LOCATED IN ALGIERS, LA. AND INSTEAD OF BEING ABLE TO EFFECT DELIVERY IMMEDIATELY OVER A SPECIAL LINE, THE MESSAGES HAVE TO BE PHYSICALLY DELIVERED FROM OUR DOWNTOWN NEW ORLEANS OFFICE. UNFORTUNATELY, YOU OR I HAD NO PRIOR KNOWLEDGE OF THIS SITUATION.

"OUR RECORDS SHOW YOUR TELEGRAM WAS RECEIVED IN THE NEW ORLEANS OFFICE AT APPROXIMATELY 2:50PM, SOME 10 MINUTES BEFORE THE BID DEAD LINE. IF THE SAME CONDITIONS HAD EXISTED AT NEW ORLEANS AS IN CHARLESTON, MOBILE, PENSACOLA, EGLIN AFB, AND MANY OTHER MILITARY ESTABLISHMENTS, THERE WAS TIME TO EFFECT DELIVERY BY 3PM.'

THE CONTRACT WAS AWARDED TO ROY ANDERSON, JR., INC., ON OR ABOUT APRIL 27, 1965, AFTER DUE NOTICE TO OUR OFFICE AS PROVIDED BY PARAGRAPH 2-407.9 (B) (2) OF THE ARMED SERVICES PROCUREMENT REGULATION IN CASES WHERE PROTESTS RELATING TO A PROPOSED PROCUREMENT ARE PENDING HERE.

FORWARDED WITH YOUR LETTER OF JUNE 3, ALONG WITH OTHER ENCLOSURES IN SUPPORT OF GREENHUT'S PROTEST, WAS A PHOTOSTAT OF A LETTER ADDRESSED TO YOU BY THE DISTRICT MANAGER OF WESTERN UNION'S NEW ORLEANS OFFICE UNDER DATE OF MAY 11, 1965, WHICH IS AS FOLLOWS:

"OUR RECORDS INDICATE THAT THE TELEGRAM WAS FILED AT OUR PENSACOLA OFFICE AT 2:21 P.M. THE MESSAGE WAS RECEIVED IN THE NEW ORLEANS AUTOMATIC MESSAGE SWITCHING SECTION AT APPROXIMATELY 2:50 P.M., RECEIVED AT THE EDITING POSITION AT 2:59 P.M. AND PROCESSED AT 3:05 P.M. THE MESSAGE WAS THEN ROUTED TO OUR DELIVERY DEPARTMENT BY PNEUMATIC TUBE WHERE IT WAS DISPATCHED BY AUTOMOBILE MESSENGER AT 3:21 P.M. AND DELIVERY TO THE ADDRESSEE EFFECTED AT APPROXIMATELY 4:16 P.M.

"TELEGRAMS AT NEW ORLEANS ARE DELIVERED EITHER BY TELEPHONE, MESSENGER OR THROUGH A DIRECT TELEGRAPHIC CONNECTION FROM OURS TO THE CUSTOMER'S OFFICE. THE LATTER METHOD IS DESCRIBED AS A TIELINE CONNECTION. THE ADDRESSEE OF THE MESSAGE UNDER REVIEW DID NOT HAVE A TIELINE CONNECTION NOR WAS TELEPHONIC DELIVERY ACCEPTABLE TO HIM AT THE TIME. CONSEQUENTLY THE TELEGRAM WAS DELIVERED BY MESSENGER. THE EIGHTH NAVAL DISTRICT IS LOCATED ABOUT FOUR AIR LINE MILES ACROSS THE MISSISSIPPI RIVER FROM OUR OFFICE. THE CIRCUITOUS TRAVEL ROUTE REQUIRED TO CROSS THE RIVER PLACES THE EIGHTH NAVAL DISTRICT LOCATION FROM 30 TO 45 MINUTES TRAVEL TIME FROM OUR OFFICE DEPENDING ON VEHICULAR TRAFFIC CONDITIONS.

"WE MEASURE OUR SERVICE PERFORMANCE WITH THE OBJECTIVE OF DELIVERING MESSAGES BY THE TELEPHONE AND TIELINE METHODS WITHIN 60 MINUTES FROM THE TIME FILED AT THE ORIGINATING OFFICE AND WITHIN 75 MINUTES BY MESSENGER. THESE MEASUREMENTS INCLUDE MESSAGES RECEIVED FROM ALL POINTS IN THE UNITED STATES, NOT BEING SEPARATED BY STATES OR AREAS. HENCE, WE ARE NOT IN A POSITION TO SPECIFY AN AVERAGE TRANSMISSION OR DELIVERY TIME FROM A PARTICULAR OFFICE AS YOU REQUEST. DURING THE MONTH OF APRIL THE AVERAGE SERVICE FROM TIME FILED AT THE ORIGINATING OFFICE TO TIME DELIVERED TO THE ADDRESSEE IN NEW ORLEANS BY THE TIELINE METHOD WAS 37.0 MINUTES, AND BY MESSENGER 53.6 MINUTES.'

ALSO FORWARDED WITH YOUR LETTER OF JUNE 3 WERE COPIES OF A TELEGRAM AND LETTER DATED MAY 25 AND MAY 27, 1965, RESPECTIVELY, ADDRESSED TO YOU BY MR. G. E. MULLINIKS, VICE-PRESIDENT OF WESTERN UNION TELEGRAPH COMPANY, ADVISING THAT A MESSAGE DISPATCHED FROM PENSACOLA BEARING THE CLASS OF SERVICE INDICATOR "RXT," SUCH AS THE ONE HERE INVOLVED, SHOULD REACH NEW ORLEANS IN ABOUT HALF AN HOUR, BUT THIS DID NOT INCLUDE THE TIME REQUIRED FOR LOCAL DELIVERY. ALSO FORWARDED WAS A COPY OF TELEGRAM ADDRESSED TO YOU BY THE DISTRICT MANAGER OF WESTERN UNION'S NEW ORLEANS OFFICE UNDER DATE OF MAY 26, 1965, ADVISING THAT "TIELINE EQUIPMENT WAS DISCONTINUED AT THE EIGHTH NAVAL DISTRICT OFFICE THE LATTER PART OF 1963" AND THE "OFFICER IN CHARGE EIGHTH NAVAL DISTRICT STARTED ACCEPTING TELEPHONE DELIVERY OF BID MESSAGES APRIL 27, 1965.'

THE RULE IS CLEAR THAT IT IS SOLELY THE BIDDER'S RESPONSIBILITY THAT A BID MODIFICATION BE DISPATCHED IN SUFFICIENT TIME PRIOR TO BID OPENING TO BE ANNOUNCED AT THE PUBLIC OPENING OF BIDS. THE WESTERN UNION TELEGRAPH COMPANY MUST BE CONSIDERED AS GREENHUT'S AGENT FOR THE PURPOSE OF TRANSMITTING THE TELEGRAM, AND GREENHUT COULD AND SHOULD HAVE ASCERTAINED, THROUGH THE COMPANY OR FROM THE PROCURING ACTIVITY INVOLVED, WHETHER THE LATTER HAD TIE-IN FACILITIES WITH WESTERN UNION'S NEW ORLEANS OFFICE, WHICH NECESSARILY WAS AN IMPORTANT FACTOR TO CONSIDER IN ESTIMATING THE LENGTH OF TIME IT WOULD TAKE TO DELIVER THE MESSAGE. SEE 39 COMP. GEN. 586; 40 ID. 290, 294, HOLDING THAT THE BURDEN IS UPON THE BIDDER TO SHOW THAT A TELEGRAPHIC MODIFICATION WAS DEPOSITED WITH THE TELEGRAPH COMPANY IN TIME FOR RECEIPT BY NORMAL TRANSMISSION PROCEDURE. IN VIEW THEREOF, AND SINCE THE RECORD FAILS TO SHOW THAT THE ARRIVAL OF THE CRITICAL TELEGRAM AT THE OCC'S OFFICE AFTER BID OPENING TIME WAS DUE TO ANY ABNORMAL, UNUSUAL OR UNFORSEEABLE DELAYS ON THE PART OF THE TELEGRAPH COMPANY, THE CONTRACTING OFFICER WOULD HAVE BEEN WITHOUT AUTHORITY TO CONSIDER THE TELEGRAM AS A MODIFICATION OF GREENHUT'S BID.

ACCORDINGLY, WE FIND NO BASIS FOR QUESTIONING THE ACTION TAKEN BY THE BUREAU OF YARDS AND DOCKS IN AWARDING THE CONTRACT INVOLVED TO ROY ANDERSON, JR., INC., AND YOUR PROTEST MUST THEREFORE BE DENIED.