B-157501, AUG. 25, 1965, 45 COMP. GEN. 91

B-157501, AUG. 25, 1965, 45 COMP. GEN. 91

BIDS - LATE - TELEGRAPHIC - DELAY DUE TO WESTERN UNION THE LATE RECEIPT OF A LOW TELEGRAPHIC BID TRANSMITTED TO WESTERN UNION ON A PUNCHED TAPE OVER A PRIVATE WIRE LEASED FROM WESTERN UNION, WHICH WOULD HAVE BEEN TIMELY RECEIVED AT THE PROCUREMENT OFFICE HAD DELIVERY NOT BEEN DELAYED BY WESTERN UNION TO CLARIFY EXTENSION PRICES THAT HAD BEEN RECORDED GARBLED ON ITS PAGE PRINTER IS NOT CHARGEABLE TO THE LOW BIDDER AND ITS BID MAY BE CONSIDERED FOR AWARD, THE TELEGRAM HAVING BEEN FILED IN SUFFICIENT TIME, WHETHER FILING IS CONSIDERED TO HAVE OCCURRED WHEN THE PUNCHED TAPE WAS ACTIVATED FOR TRANSMISSION, OR WHEN RECEIVED ON THE WESTERN UNION PAGE PRINTER, TO ALLOW FOR ANY NORMAL, UNUSUAL, OR FORESEEABLE DELAY, OR DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE OF ACCOMPLISHING THE WORK OF THE TELEGRAPH COMPANY, AND THE GARBLED MESSAGE, UNDERSTANDABLE WITHOUT CLARIFICATION, HAVING BEEN CAUSED ON WESTERN UNION EQUIPMENT, THE DELIVERY DELAY WAS UNNECESSARY AND THE BID FILED IN AMPLY TIME FOR TIMELY DELIVERY MAY BE CONSIDERED FOR AWARD.

TO THE SECRETARY OF THE NAVY, AUGUST 25, 1965:

REFERENCE IS MADE TO LETTER R1 OF AUGUST 18, 1965, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION WHETHER THE LATE TELEGRAPHIC BID OF NORTHROP NORTRONICS MAY BE CONSIDERED FOR AWARD UNDER INVITATION FOR BIDS IFB 126-463-65.

BIDDERS WERE AUTHORIZED TO SUBMIT TELEGRAPHIC BIDS. THE BIDS WERE SCHEDULED TO BE OPENED AT THE U.S. NAVY ELECTRONICS SUPPLY OFFICE AT GREAT LAKES, ILLINOIS, AT 1 P.M. C.D.T. ON MAY 12, 1965. THE TELEGRAPHIC BID OF NORTHROP NORTRONICS WAS NOT RECEIVED AT THE DESIGNATED OFFICE UNTIL 1:43 P.M. C.D.T. NORTHROP BID $53,921, $119,256 AND $218,836 TO SUPPLY CERTAIN CABLE ASSEMBLIES IN QUANTITIES OF 10, 25, AND 50, RESPECTIVELY. THE DIFFERENCE BETWEEN THE LOW BID OF NORTHROP AND THE NEXT LOW BID RANGES FROM $27,021 TO $67,618 DEPENDING UPON THE NUMBER OF CABLE ASSEMBLIES THE ELECTRONICS SUPPLY OFFICE ELECTS TO PURCHASE.

THE BIDDER AND WESTERN UNION HAVE FURNISHED INFORMATION REGARDING THE SEQUENCE OF EVENTS WHICH PRECEDED THE LATE RECEIPT OF THE TELEGRAPHIC BID. A SUMMARY OF THAT INFORMATION FOLLOWS:

AT 10:25 A.M. C.D.T., THE BIDDER'S TELEGRAPH OPERATOR AT ITS NEEDHAM HEIGHTS, MASSACHUSETTS, PLANT SENT THE BID ADDRESSED TO THE ELECTRONICS SUPPLY OFFICE ON EQUIPMENT AND OVER A PRIVATE WIRE LEASED FROM WESTERN UNION. THE BID WAS RECEIVED ON A PUNCHED TAPE ON EQUIPMENT OPERATED BY ANOTHER NORTHROP OPERATOR AT THE HAWTHORNE SWITCHING CENTER IN CALIFORNIA. AT 11:20 A.M. C.D.T., THE NORTHROP EMPLOYEE AT HAWTHORNE INSERTED THE PUNCHED TAPE INTO A TRANSMITTER AND ACTIVATED IT FOR TRANSMISSION TO THE WESTERN UNION OFFICE AT DAYTON, OHIO, BY PRESSING A BUTTON. THE BID WAS RECEIVED ON A PAGE PRINTED BY A WESTERN UNION EMPLOYEE AT THE WESTERN UNION DAYTON OFFICE. THE BID AS RECORDED ON THE PAGE PRINTER WAS GARBLED IN THAT THERE WERE STRIKEOVERS AT THE END OF FIVE LINES, THREE OF WHICH OCCURRED IN THE TOTAL BID PRICES, THE UNIT PRICES NOT BEING OBLITERATED IN ANY WAY. THE PORTION OF THE BID CONTAINING THE GARBLING CAME OFF THE PAGE PRINTER AS FOLLOWS:

TABLE

ITEM QTY DESCRIPTION UNIT PRICE TOTAL PE

1 1 CABLE ASSY INCL. IN INCL. IN

(PREPROD.) ITEM 2

2 10 CABLE ASSY $5,392 $53,92

(PRODUCTION)

3 25 CABLE ASSY $4,770 $119,25

(ALTERNATE

QTY 1)

2 50 CABLE ASSY $4,377 $218,83

(ALTERNATE

QTY 2) AT 11:34 A.M. C.D.T., THE WESTERN UNION DAYTON OFFICE REQUESTED THE HAWTHORNE OPERATOR TO PROVIDE CLARIFICATION. THE HAWTHORNE OPERATOR WAS ABLE TO PROVIDE CLARIFICATION FROM THE PUNCHED TAPE AT THE HAWTHORNE SWITCHING CENTER. AT 12:19 P.M. C.D.T., THE WESTERN UNION DAYTON OFFICE RECEIVED THE REQUESTED CLARIFICATION FROM HAWTHORNE. AT 12:44 P.M. C.D.T., THE WESTERN UNION DAYTON OFFICE RELEASED THE BID FOR TRANSMISSION IN ITS CLARIFIED FORM. FIFTY-NINE MINUTES LATER, AT 1:43 P.M. C.D.T., THE BID WAS RECEIVED BY THE ELECTRONICS SUPPLY OFFICE. THE PORTION OF THE BID WHICH HAD BEEN GARBLED IN TRANSMISSION WAS RECEIVED BY THE ELECTRONICS SUPPLY OFFICE IN THE FOLLOWING UNGARBLED FORM:

TABLE

UNIT TOTAL

ITEM QTY DESCRIPTION PRICE PRICE

1 1 CABLE ASSY INCL IN

(PREPROD) ITEM 2

2 10 CABLE ASSY $5,392 $ 53,921

PRODUCTION)

3 25 CABLE ASSY $4,770 $119,256

(ALTERNATE

QTY 1)

2 50 CABLE ASSY $4,377 $218,836

(ALTERNATE

QTY 2)

THE INVITATION FOR BIDS PROVIDES THAT LATE TELEGRAPHIC BIDS RECEIVED BEFORE AWARD WILL NOT BE CONSIDERED FOR AWARD UNLESS IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT IS DUE TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER IS NOT RESPONSIBLE. IN THIS REGARD, ARMED SERVICES PROCUREMENT REGULATION 2-303.4 PROVIDES:

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. MOREOVER, AS THE LETTER FROM THE ASSISTANT CHIEF FOR PURCHASING OBSERVES, OUR OFFICE HAS CONSIDERED THAT LATE RECEIVED TELEGRAMS TO BE CONSIDERED ACCEPTABLE SHOULD HAVE BEEN FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO ALLOW FOR ANY NORMAL, USUAL OR FORESEEABLE DELAY OR THOSE DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES ITS WORK.

UNTIL THE BID WAS DEPOSITED BY THE BIDDER WITH WESTERN UNION FOR ACTION IT WOULD SEEM THAT THERE WAS NO "FILING" WITH THE TELEGRAPH COMPANY AS UP UNTIL THAT TIME THE BID WAS IN THE POSSESSION OF ONE OF THE BIDDER'S EMPLOYEES. IN THIS CASE, IT COULD BE ARGUED THAT THE BID WAS DEPOSITED WITH THE TELEGRAPH COMPANY FOR ACTION WHEN THE PUNCHED TAPE WAS ACTIVATED FOR TRANSMISSION TO THE WESTERN UNION DAYTON OFFICE ON THE AUTOMATIC TRANSMITTER AT HAWTHORNE. IT COULD ALSO BE ARGUED THAT THERE WOULD BE NO FILING UNTIL RECEIVED ON THE PAGE PRINTER AT DAYTON. UNDER EITHER THEORY, IT DOES NOT APPEAR THAT THE BIDDER CAUSED THE GARBLING. THE BID WAS PERFECT WHEN IT LEFT BOTH NEEDHAM HEIGHTS AND HAWTHORNE AS EVIDENCED BY THE FACT THAT THERE WAS NOTHING WRONG WITH THE PUNCHED TAPE WHICH WAS USED TO RELAY AND CLARIFY THE BID. IT SEEMS THAT IF ANYTHING FAILED, IT WAS THE PAGE PRINTER IN THE WESTERN UNION DAYTON OFFICE WHICH PRODUCED THE GARBLING. IN THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT THE GARBLING OR THE ADDITIONAL TIME WHICH WAS NEEDED TO CLARIFY THE GARBLING SHOULD BE CHARGED TO THE BIDDER. IN THAT CONNECTION, THE COURT OF CLAIMS AND OUR OFFICE HAVE INTIMATED THAT A DELAY ARISING FROM EQUIPMENT PROBLEMS SHOULD BE CHARGED TO WESTERN UNION AND NOT TO THE BIDDER. SOUTHERN, WALDRIP AND HARVICK CO. V. UNITED STATES, 167 CT.CL. 488, AND B-134955, MARCH 14, 1958.

ADDITIONALLY, IT MAY BE NOTED THAT IF THE BID HAD ARRIVED AT THE ELECTRONICS SUPPLY OFFICE IN THE GARBLED CONDITION, THERE WOULD HAVE BEEN NO NECESSITY FOR CLARIFICATION OR VERIFICATION, SINCE THE BID WAS NOT GARBLED IN ANY MATERIAL RESPECT. AS OBSERVED ABOVE, THE GARBLING OCCURRED IN THE EXTENDED PRICES AND NOT IN THE UNIT PRICES WHICH WERE ABSOLUTELY CLEAR. THEREFORE, IT WAS NOT NECESSARY THAT THE BID BE CLARIFIED FOR IT TO BE ACCEPTABLE TO THE GOVERNMENT. ALSO, IF THE GOVERNMENT SOUGHT TO VERIFY THE CORRECTNESS OF THE UNIT PRICES IN THOSE CIRCUMSTANCES, IT COULD HAVE DONE SO BY CHECKING WITH WESTERN UNION AND WITHOUT THE LATTER OR THE GOVERNMENT HAVING TO CHECK BACK WITH THE BIDDER SINCE THE UNIT PRICES WERE CLEAR IN THE GARBLED BID RECEIVED BY WESTERN UNION.

IN VIEW OF THE SCHEDULE WHICH THE BID FOLLOWED, IT APPEARS THAT THERE WAS, AT LEAST, ABOUT AN HOUR AND TWENTY-SIX TO AN HOUR AND FORTY MINUTES FOR THE TRANSMISSION OF THE BID IF EITHER THE ORIGINAL RECEIPT AT DAYTON OR THE ORIGINAL TRANSMISSION AT HAWTHORNE IS CONSIDERED AS "FILING.' THE CORRECTED MESSAGE WAS TRANSMITTED FROM DAYTON TO THE ELECTRONICS SUPPLY OFFICE IN FIFTY-NINE MINUTES AND FROM HAWTHORNE TO THE ELECTRONICS SUPPLY OFFICE IN AN HOUR AND TWENTY-FOUR MINUTES.

SINCE IN THIS CASE, EQUIPMENT IN THE WESTERN UNION OFFICE SEEMS TO BE THE REASON FOR THE DELAY AND SINCE THERE SEEMS TO HAVE BEEN ADEQUATE TIME FOR THE TRANSMISSION OTHERWISE, IT WOULD APPEAR THAT THE BID WAS FILED IN AMPLE TIME FOR TIMELY DELIVERY TO THE ELECTRONICS SUPPLY OFFICE.

IN THE CIRCUMSTANCES, THE BID MAY BE CONSIDERED FOR AWARD.

THE ENCLOSURES ACCOMPANYING THE AUGUST 18 LETTER ARE RETURNED AS REQUESTED.