B-162560, NOV. 9, 1967

B-162560, NOV. 9, 1967

BIDS - LATE - TELEGRAPHIC MODIFICATION DECISION TO METROPOLITAN METALS, INC. FOR FAILURE OF DEFENSE SURPLUS SALES OFFICE TO PERMIT CONSIDERATION OF LATE TELEGRAPHIC MODIFICATION OF BID FOR METAL SCRAP. A TELEGRAPHIC MODIFICATION OF A BID WHICH WAS PROPERLY ADDRESSED, DISPATCHED AND RECEIVED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BEFORE BID OPENING BUT WHICH WAS DELAYED IN THE COMMUNICATIONS DIVISION SO THAT IT WAS NOT DELIVERED TO THE CONTRACTING OFFICER UNTIL MORE THAN 3 HOURS AFTER BID OPENING WAS PROPERLY NOT CONSIDERED IN THE AWARD SINCE UNDER THE TERMS OF THE INVITATION FOR CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS THE DELAY MUST BE DUE TO THE MISHANDLING BY SALES PERSONNEL OR THEIR DESIGNEES AND THE PERSONNEL OF THE COMMUNICATIONS DIVISION OF A LARGE INSTALLATION ARE SIMILAR TO POSTAL EMPLOYEES IN RELATION TO THE SALES CONTRACTING OFFICER AND ARE NOT CONSIDERED THEIR DESIGNEES.

TO METROPOLITAN METALS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED SEPTEMBER 26, 1967, PROTESTING AGAINST AWARD OF ITEMS 18, 19, 38 AND 40 TO ANY OTHER BIDDER UNDER SEALED BID SALE INVITATION NO. 25-8014 ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, NORFOLK, VIRGINIA. THE BASIS FOR YOUR PROTEST IS THE FAILURE OF THE SALES CONTRACTING OFFICER TO CONSIDER A TELEGRAPHIC MODIFICATION OF YOUR BID WHICH WOULD HAVE MADE YOUR FIRM THE HIGH BIDDER ON THE ABOVE FOUR ITEMS.

THE INVITATION, COVERING 68 ITEMS OF METALLIC AND NON-METALLIC SCRAP, DID NOT PERMIT THE SUBMISSION OF TELEGRAPHIC BIDS, BUT DID PERMIT THE TELEGRAPHIC MODIFICATION OF BIDS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO THE TIME SET FOR THE OPENING OF BIDS. BID OPENING WAS SCHEDULED AT 10:30 A.M., EASTERN STANDARD TIME, SEPTEMBER 19, 1967, AT THE NORFOLK DEFENSE SURPLUS SALES OFFICE. AT 10:30 A.M., EASTERN STANDARD TIME, ON SEPTEMBER 19, 1967, THE SALES CONTRACTING OFFICER, IMMEDIATELY PRIOR TO OPENING THE BIDS AS SCHEDULED, TELEPHONED THE COMMUNICATIONS DIVISION OF THE INSTALLATION AND WAS INFORMED THAT NO TELEGRAMS RELATING TO THIS SALE HAD BEEN RECEIVED. AT APPROXIMATELY 2:00 P.M., THE SAME DAY, SOME THREE AND ONE HALF HOURS AFTER BID OPENING, THE SALES CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM THE COMMUNICATIONS DIVISION ADVISING HIM THAT TWO TELEGRAMS RELATING TO THE SALE WERE IN THEIR POSSESSION WHICH HAD BEEN MISROUTED. SINCE NEITHER TELEGRAM WAS FROM YOUR FIRM THE SALES CONTRACTING OFFICER REQUESTED A FURTHER CHECK. IN RESPONSE TO THIS REQUEST THE SALES CONTRACTING OFFICER WAS ADVISED ABOUT 15 MINUTES LATER THAT YOUR TELEGRAM HAD BEEN LOCATED. THE ADMINISTRATIVE REPORT STATES THAT THE TELEGRAPHIC MODIFICATION OF YOUR BID, PROPERLY ADDRESSED, WAS DISPATCHED AND IN FACT RECEIVED AT THE INSTALLATION IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TO THE SALES OFFICER PRIOR TO THE TIME SET FOR BID OPENING. HOWEVER, THE INCORRECT ROUTING OF YOUR TELEGRAM BY THE COMMUNICATIONS DIVISION DID IN FACT DELAY DELIVERY BEYOND TIME SET FOR BID OPENING.

ARTICLE AC, SPECIAL SEALED BID CONDITIONS, GOVERNING CONSIDERATION OF TELEGRAPHIC BIDS, PROVIDES: "ARTICLE AC: TELEGRAPHIC AND TELEPHONIC BIDS. TELEGRAPHIC OR TELEPHONIC BIDS WILL NOT BE CONSIDERED, BUT MODIFICATION BY TELEGRAM OF BIDS ALREADY SUBMITTED, INCLUDING THE SUBMISSION OF BIDS ON ITEMS NOT PREVIOUSLY BID UPON, WILL BE CONSIDERED IF BOTH THE BID AND THE TELEGRAPHIC MODIFICATION THERETO ARE RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO TIME SET FOR OPENING OF BIDS. BID MODIFICATIONS WHICH INCREASE THE AMOUNT BID MUST PROVIDE FOR INCREASED BID DEPOSIT WHICH MUST BE RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO THE TIME SET FOR THE OPENING OF BIDS. TELEGRAPHIC MODIFICATIONS WHICH ARE RECEIVED AFTER THE TIME SET FOR OPENING OF BIDS WILL BE CONSIDERED ONLY IF RECEIVED PRIOR TO AWARD AND IT IS DETERMINED THAT THE TELEGRAM WAS RECEIVED AT THE INSTALLATION AT WHICH THE SALES OFFICE IS LOCATED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING, AND EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF SALES PERSONNEL OR THEIR DESIGNEES, WOULD HAVE BEEN ON TIME. LATE MODIFICATIONS, WHETHER SUBMITTED BY MAIL OR TELEGRAM, WHICH MODIFY OTHERWISE HIGH ACCEPTABLE BIDS WILL BE CONSIDERED IF IT IS IN THE INTERESTS OF THE GOVERNMENT TO DO SO.' AS REPORTED ABOVE, YOUR TELEGRAPHIC MODIFICATION WAS NOT RECEIVED BY THE SALES CONTRACTING OFFICER, UNTIL MORE THAN THREE HOURS AFTER THE TIME SET FOR BID OPENING. THEREFORE, NOTWITHSTANDING THAT YOUR TELEGRAM, PROPERLY ADDRESSED, WAS DISPATCHED AND RECEIVED AT THE INSTALLATION IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BEFORE BID OPENING, THE SALES CONTRACTING OFFICER COULD CONSIDER THE TELEGRAPHIC MODIFICATION ONLY IF THE CAUSE FOR DELAY COMES WITHIN THE PROVISIONS OF THE FOREGOING ARTICLE "AC" , WHICH REQUIRES THE DELAY TO BE DUE TO MISHANDLING BY SALES PERSONNEL OR THEIR DESIGNEES. WHILE IT IS RECOGNIZED THAT THE COMMUNICATIONS DIVISION PERSONNEL MAY HAVE BEEN NEGLIGENT IN SEEING THAT TELEGRAMS TIMELY RECEIVED WERE PROPERLY FORWARDED TO THE SALES CONTRACTING OFFICER FOR CONSIDERATION, THE ABOVE- QUOTED PROVISION WAS ADOPTED TO AVOID THE LENGTHY PERIOD OF TIME REQUIRED FOR A DETERMINATION WHETHER A PARTICULAR LATE BID COULD BE CONSIDERED AND THE RESULTING DELAY IN AWARD AND REMOVAL OF SURPLUS PROPERTY. SEE B 156034, MARCH 5, 1965. FURTHER, THE PERSONNEL OF THE COMMUNICATIONS DIVISION OF A LARGE INSTALLATION ARE SIMILAR TO POST OFFICE EMPLOYEES IN RELATION TO THE SALES CONTRACTING OFFICER AND ARE NOT CONSIDERED HIS DESIGNEES. SEE B-158257, FEBRUARY 10, 1966.

ACCORDINGLY, NOTWITHSTANDING THE FACT THAT THE STRICT LEGAL INTERPRETATION OF ARTICLE "AC" OF THE SPECIAL CONDITIONS RESULTS IN A SOMEWHAT HARSH CONCLUSION TO YOU, UNDER THE FACTS REPORTED IN THIS CASE, WE CAN FIND NO LEGAL OBJECTION TO THE AWARDS MADE BY THE DEFENSE SURPLUS SALE OFFICE UNDER INVITATION 25-8014.