B-160455, DEC. 2, 1966

B-160455: Dec 2, 1966

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BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA: REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE NOVEMBER 25. THE INSTRUCTIONS TO BIDDERS PROVIDED THAT MODIFICATIONS BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE HOUR SET FOR OPENING OF BIDS. FIVE BIDS WERE RECEIVED UNDER THE INVITATION. LEVER WOULD HAVE BEEN THE LOW BIDDER WITH A TOTAL BID OF $707. WAS RECEIVED 4 MINUTES AFTER THE PRESCRIBED BID OPENING TIME. THAT THE TELEGRAM WAS FILED AT ARDSLEY. THAT IT WAS RECEIVED AT 2:32 P.M. THAT IT WAS DISPATCHED AT 2:36 P.M. THAT THE MESSENGER WAS GIVEN A ROUTING SLIP LISTING THE SUBJECT TELEGRAM FOR THIRD DELIVERY. BECAUSE OF THE ORDER IN WHICH IT WAS DESIGNATED FOR DELIVERY.

B-160455, DEC. 2, 1966

TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA:

REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE NOVEMBER 25, 1966, REQUESTING A DECISION WITH REGARD TO THE LATE TELEGRAPHIC BID MODIFICATION RECEIVED FROM TRIP CONSTRUCTION CO., INC., UNDER INVITATION C-6747-B, BECAUSE OF A PROTEST OF NOVEMBER 18, 1966, FROM MARVIN P. SADUR, THE ATTORNEY FOR JACK Q. LEVER AND CO., INC., THAT THE LATE MODIFICATION SHOULD NOT BE CONSIDERED.

THE INVITATION FOR BIDS REQUESTED BIDS TO BE RECEIVED UNTIL 3 P.M. ON OCTOBER 12, 1966. THE INSTRUCTIONS TO BIDDERS PROVIDED THAT MODIFICATIONS BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE HOUR SET FOR OPENING OF BIDS.

FIVE BIDS WERE RECEIVED UNDER THE INVITATION. THE ABSTRACT OF BIDS SHOWS THAT BUT FOR THE LATE-RECEIVED TELEGRAPHIC BID MODIFICATION FROM TRIP CONSTRUCTION CO., WHICH REDUCED ITS OTHERWISE HIGH TOTAL BID PRICE TO $678,000, JACK Q. LEVER WOULD HAVE BEEN THE LOW BIDDER WITH A TOTAL BID OF $707,062.

THE LATE TELEGRAPHIC BID MODIFICATION, MARKED "RX," MEANING RUSH HANDLING, WAS RECEIVED 4 MINUTES AFTER THE PRESCRIBED BID OPENING TIME. WESTERN UNION SUBSEQUENTLY ADVISED BY LETTER OF OCTOBER 14, 1966, THAT THE TELEGRAM WAS FILED AT ARDSLEY, PENNSYLVANIA, AT 1:55 P.M.; THAT IT WAS RECEIVED AT 2:32 P.M. IN THE UNION STATION TERMINAL OFFICE; THAT IT WAS DISPATCHED AT 2:36 P.M. ALONG WITH FOUR OTHER TELEGRAMS; THAT THE MESSENGER WAS GIVEN A ROUTING SLIP LISTING THE SUBJECT TELEGRAM FOR THIRD DELIVERY, BUT THAT HE FAILED TO CONDUCT THE ROUTE PROPERLY AND INSTEAD DELIVERED IT FIFTH. WESTERN UNION STATED FURTHER THAT IT EXPECTED THE TELEGRAM TO BE DELIVERED AT APPROXIMATELY 2:50 P.M. BECAUSE OF THE ORDER IN WHICH IT WAS DESIGNATED FOR DELIVERY, AND THAT IF THE MESSENGER HAD CONDUCTED THE ROUTE PROPERLY, THE TELEGRAM WOULD HAVE MOST DEFINITELY BEEN DELIVERED BEFORE 3 P.M.

THE FACTS SUBMITTED BY WESTERN UNION WERE CONSIDERED TO CLEARLY ESTABLISH THAT THE MODIFICATION OF THE BID WOULD HAVE BEEN TIMELY RECEIVED BUT FOR THE MISROUTING BY THE MESSENGER AND THAT SUCH MISHANDLING WAS NOT A NORMAL, USUAL OR FORESEEABLE DELAY. AS A RESULT, THE CONTRACTING OFFICER ISSUED A NOTICE OF AWARD TO TRIP CONSTRUCTION CO., ON NOVEMBER 16, 1966.

THEREAFTER, A LETTER OF NOVEMBER 28, 1966, WAS RECEIVED FROM WESTERN UNION FURTHER CONFIRMING THAT THE LATE DELIVERY WAS DUE TO THE MESSENGER'S FAILURE TO HEAD INSTRUCTIONS. THE LETTER TATED:

"OUR MESSENGER WAS INSTRUCTED AT THE TIME OF DISPATCHING THAT THIS TELEGRAM WAS TO BE DELIVERED AS HIS THIRD STOP ON HIS DELIVERY RUN. THE ROUTING CLERK WAS AWARE THAT THIS TELEGRAM MUST BE DELIVERED BEFORE 3:00 PM EDT AND THE MESSENGER WAS INFORMED ACCORDINGLY. THE DELIVERY RUN WAS ROUTED UP IN SUCH A WAY THAT THE FIRST TWO TELEGRAMS WOULD BE DELIVERED ENROUTE TO YOUR OFFICE AND WOULD INSURE HIS ARRIVAL PRIOR TO 3:00 PM. UNFORTUNATELY, THE MESSENGER DID NOT FOLLOW HIS INSTRUCTIONS CAUSING THE DELAY IN DELIVERY.'

THE ATTORNEY FOR JACK Q. LEVER HAS PROTESTED THE CONSIDERATION OF THE LATE MODIFICATION ON THE BASIS THAT THE CONDUCT OF THE MESSENGER IS A RISK WHICH THE SENDER OF A TELEGRAM HAS TO ASSUME. HOWEVER, WHERE TELEGRAPHIC MODIFICATIONS, WHICH WOULD ARRIVE ON TIME, ARRIVE LATE, BECAUSE OF A DEPARTURE FROM REGULAR TELEGRAPHIC COMPANY ROUTINE BY TELEGRAPHIC COMPANY PERSONNEL, IT HAS BEEN HELD THAT THE MODIFICATIONS SHOULD BE CONSIDERED AS IF TIMELY RECEIVED. THUS, LATE MODIFICATIONS HAVE BEEN AUTHORIZED FOR CONSIDERATION WHERE THE DELAY IN RECEIPT IS ATTRIBUTABLE TO TELEGRAPH COMPANY MISROUTING (B-159408, AUGUST 19, 1966, AND B-151972, SEPTEMBER 19, 1963), MISDELIVERY (B-153432, MARCH 31, 1964), OR FAILING TO FOLLOW ESTABLISHED OFFICE PRACTICE (B-156142, MAY 4, 1965).

IN THE IMMEDIATE CASE, THERE APPEARS TO BE NO DOUBT BUT THAT THE DELAY IN DELIVERY WAS DUE TO MISHANDLING BY THE TELEGRAPH COMPANY MESSENGER IN FAILING TO FOLLOW SPECIFIC ROUTING INSTRUCTIONS, AND THAT A LATE DELIVERY WOULD NOT HAVE OCCURRED IF THE ROUTING HAD BEEN FOLLOWED. THERE WAS, THEREFORE, A CLEAR DEPARTURE FROM THE ROUTINE BY WHICH THE DELIVERY WAS TO BE ACCOMPLISHED WHICH RESULTED IN A LATE DELIVERY. BIDDERS ARE REQUIRED TO ANTICIPATE CERTAIN DELAYS WHICH MIGHT BE EXPECTED IN THE NORMAL TELEGRAPH COMPANY ROUTINE. 40 COMP. GEN. 290. HOWEVER, THE DELAY HERE RESULTED FROM FAILURE TO FOLLOW ROUTINE.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE AWARD BY THE CONTRACTING OFFICER WAS PROPER IN THIS CASE.