B-159198, JUN. 29, 1966

B-159198: Jun 29, 1966

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MAY 12. UNIT PRICES FOR WHICH THE OFFER IS SUBMITTED AND THE TIME AND PLACE OF DELIVERY. WHICH WE ARE ADVISED HAD AN ISSUE PRIORITY ONE DUE TO THE URGENT NEED FOR THE ITEMS. THE ONLY RESPONSIVE OFFER RECEIVED BEFORE THE TIME SET FOR OPENING WAS FROM THE COULTER STEEL AND FORGE COMPANY. THAT OFFER WAS FOR ALL UNITS OF ALL ITEMS AT A TOTAL PRICE OF $26. WITHE THE PROPOSAL WAS A NOTATION INDICATING A TELEGRAPHIC MODIFICATION WAS TO FOLLOW SUPPLYING THE OMITTED INFORMATION. THE TELEGRAPHIC MODIFICATION WAS SENT FROM SAN FRANCISCO. WAS RECEIVED IN THE PEARL HARBOR NAVAL SUPPLY CENTER ON MARCH 29. THIS WAS AFTER THE OPENING TIME AND DATE SET FOR THE SUBMISSION OF PROPOSALS.

B-159198, JUN. 29, 1966

TO THE TRADERS DISTRIBUTING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1966, WHICH PROTESTED AGAINST THE AWARD TO ANY OFFEROR WHO SUBMITTED A HIGHER PROPOSAL THAN YOURS IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) 604-501-66 ISSUED BY THE U.S. NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII, ON MARCH 7, 1966.

THE SUBJECT RFP REQUESTED OFFERS BY 4 P.M., HAWAIIAN STANDARD TIME (HST) ON MARCH 28, 1966, FOR 5 ITEMS EACH OF COPPER-NICKEL SOFT RODS IN VARIOUS DIAMETERS RANGING FROM 2 1/2 INCHES TO 5 INCHES. SECTION 7 OF THE SCHEDULE TO THE RFP ENTITLED "NOTICE TO OFFERORS" READS AS FOLLOWS:

"7.1 - CAUTION - LATE PROPOSALS

SEE THE SPECIAL PROVISION IN THIS SOLICITATION ENTITLED "LATE PROPOSALS.'

"7.2 TELEGRAPHIC OFFERS

TELEGRAPHIC OFFERS MAY BE SUBMITTED IN RESPONSE TO THIS REQUEST FOR PROPOSALS. TELEGRAPHIC OFFERS MUST BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR CLOSING OF BUSINESS. SUCH OFFERS MUST SPECIALLY REFER TO THIS REQUEST FOR PROPOSALS, MUST INCLUDE THE ITEM OR SUB-ITEMS, QUANTITIES, AND UNIT PRICES FOR WHICH THE OFFER IS SUBMITTED AND THE TIME AND PLACE OF DELIVERY; AND MUST CONTAIN ALL THE REPRESENTATIONS AND OTHER INFORMATION REQUIRED BY THE REQUEST FOR PROPOSALS TOGETHER WITH A STATEMENT THAT THE OFFEROR AGREES TO ALL THE TERMS, CONDITIONS AND PROVISIONS OF THE PROPOSAL. FAILURE TO FURNISH, IN THE TELEGRAPHIC OFFER, THE REPRESENTATIONS AND INFORMATION REQUIRED BY THE REQUEST FOR PROPOSALS MAY NECESSITATE REJECTION OF THE OFFER. SIGNED COPIES OF THE REQUEST FOR PROPOSALS MUST BE FURNISHED IN CONFIRMATION OF THE TELEGRAPHIC OFFER.

NOTE

ADDRESS TELEGRAPHIC OFFERS TO THE CONTRACTING OFFICER, PURCHASE DEPARTMENT, U.S. NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII.'

IN RESPONSE TO THE RFP, WHICH WE ARE ADVISED HAD AN ISSUE PRIORITY ONE DUE TO THE URGENT NEED FOR THE ITEMS, THE ONLY RESPONSIVE OFFER RECEIVED BEFORE THE TIME SET FOR OPENING WAS FROM THE COULTER STEEL AND FORGE COMPANY. THAT OFFER WAS FOR ALL UNITS OF ALL ITEMS AT A TOTAL PRICE OF $26,337.20.

YOUR FIRM, THE RECORD SHOWS, SUBMITTED PROPOSAL PRIOR TO THE OPENING DATE FOR PROPOSALS, BUT IT FAILED TO INCLUDE THE PRICES, GUARANTEED SHIPPING WEIGHTS AND VOLUME FOR THE 5 ITEMS TO BE FURNISHED. WITHE THE PROPOSAL WAS A NOTATION INDICATING A TELEGRAPHIC MODIFICATION WAS TO FOLLOW SUPPLYING THE OMITTED INFORMATION. THE TELEGRAPHIC MODIFICATION WAS SENT FROM SAN FRANCISCO, CALIFORNIA, AT 3:17 P.M. MARCH 28, 1966, AND WAS RECEIVED IN THE PEARL HARBOR NAVAL SUPPLY CENTER ON MARCH 29, 1966. THIS WAS AFTER THE OPENING TIME AND DATE SET FOR THE SUBMISSION OF PROPOSALS, I.E., 4 P.M., HST, MARCH 28, 1966. THE CONTRACTING OFFICER, BY LETTER OF APRIL 27, 1966, ADVISED YOUR COMPANY THE SUBJECT TELEGRAM WAS A "LATE PROPOSAL," AND ITS RECEIPT WAS NOT DUE TO MISHANDLING BY THE GOVERNMENT. ACCORDINGLY, YOUR PROPOSAL WAS NOT CONSIDERED IN THE PROCUREMENT, BUT WAS RETURNED. ON APRIL 11, 1966, PRIOR TO THE LETTER REJECTING AND RETURNING YOUR PROPOSAL, THE PROPOSAL SUBMITTED BY COULTER AND FORGE COMPANY WAS ACCEPTED.

YOUR LETTERS OF MAY 7, 1966, AND MAY 12, 1966, ENUNCIATE THE BELIEF THAT THE LATE ARRIVAL OF THE TELEGRAM WAS DUE SOLELY TO POOR HANDLING BY THE TELEGRAPH COMPANY. THEREFORE, YOU ASSERT IT SHOULD HAVE BEEN CONSIDERED IN ACCORDANCE WITH PARAGRAPH 3 (II) ENTITLED"LATE PROPOSALS" (DD FORM 746) FOUND IN THE TERMS AND CONDITIONS OF THE RFP. THAT PARAGRAPH READS IN PERTINENT PART AS FOLLOWS:

"LATE PROPOSALS - (A) PROPOSALS AND MODIFICATIONS RECEIVED AT THE OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE CLOSE OF BUSINESS ON THE DATE SET FOR RECEIPT THEREOF (OR AFTER THE TIME SET FOR RECEIPT IF A PARTICULAR TIME IS SPECIFIED) WILL NOT BE CONSIDERED UNLESS:

(I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER

(II) THEY ARE SENT BY * * * TELEGRAPH; AND, IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO DELAY * * * BY THE TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE * * *.'

IN SUPPORT OF SUCH CONTENTION YOUR LETTER OF MAY 7, 1966, STATES:

"A. OUR TELEGRAM WAS GIVEN TO WESTERN UNION AT APPROXIMATELY 12:00 NOON, PACIFIC STANDARD TIME, ON MARCH 28. THE TIME SHOWN ON THE COPY OF THE TELEGRAM THAT YOU FORWARDED TO US, 3:17 .M., IS THE TIME THAT THE TELEGRAPH COMPANY TRANSMITTED THE MESSAGE AND NOT THE TIME THAT THEY RECEIVED IT FROM US. THE APPROXIMATELY THREE-HOUR DELAY IN TRANSMITTING THE MESSAGE IS CERTAINLY ABOVE AND BEYOND OUR CONTROL. AS SET FORTH IN PAR. 3, SUBPAR. II, IT WOULD APPEAR THAT THE DELAY IN TRANSMISSION AND SUBSEQUENT LATE ARRIVAL AT YOUR OFFICE WAS DUE SOLELY TO IMPROPER HANDLING BY THE WESTERN UNION CO. ACCORDINGLY, WE BELIEVE THAT OUR TELEGRAPHIC PROPOSAL WAS TIMELY.

"B.AT THE TIME WE GAVE THE MESSAGE TO WESTERN UNION, WE ASKED THEM HOW LONG IT WOULD TAKE TO TRANSMIT THE MESSAGE TO PEARL HARBOR. WE WERE TOLD THAT IT WOULD REQUIRE A MINIMUM OF TWO HOURS AND A MAXIMUM OF FOUR HOURS. AT THAT TIME, IT WAS ONLY 10:00 A.M. IN HAWAII AND WE THEREFORE HAD SIX HOURS FOR THE MESSAGE TO BE RECEIVED IN PEARL HARBOR.

"C. WE HAVE CONTACTED WESTERN UNION AND THEY HAVE PROMISED THAT THEY WILL MAKE A COMPLETE INVESTIGATION OF THIS MATTER AND PROVIDE US WITH DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE AFOREMENTIONED STATEMENTS.'

THE REPORT RECEIVED FROM THE CONTRACTING AGENCY IN THIS MATTER INDICATES THAT NONE OF THE AFORESAID DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE DELAY HAS BEEN RECEIVED BY THE CONTRACTING AGENCY. FURTHERMORE, NONE HAS BEEN RECEIVED BY THIS OFFICE.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AT SECTION 2-303.4 SETS OUT THE REGULATIONS APPLICABLE TO CONSIDERATION OF LATE TELEGRAPHIC BIDS. THEREIN IT IS POINTED OUT "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.' THE LATE BID PROVISIONS OF ASPR 2-303 ARE MADE APPLICABLE TO LATE PROPOSALS BY ASPR 3-506.

WHILE THE FACTS YOU HAVE ALLEGED IN YOUR LETTER OF MAY 7 MAY VERY WELL BE TRUE, NO EVIDENCE AS REQUIRED BY ASPR 2-303.4 SUBSTANTIATING YOUR STATEMENTS APPEARS IN THE RECORD. ACCORDINGLY, THIS OFFICE MUST ASSUME THAT THE TELEGRAM IN QUESTION WAS FILED TOO LATE TO BE RECEIVED BY THE CONTRACTING OFFICE BEFORE 4 P.M. HST, MARCH 28, 1966, AND WE MUST CONCLUDE THAT IT WAS PROPERLY REJECTED AS A LATE PROPOSAL. IN VIEW THEREOF, IT WOULD APPEAR THAT THE CONTRACT NEGOTIATED WITH COULTER STEEL AND FORGE COMPANY PURSUANT TO 10 U.S.C. 2304 (A) (2) CONSTITUTES A VALID AND BINDING OBLIGATION OF THE GOVERNMENT, AND YOUR PROTEST MUST THEREFORE BE DENIED.