B-162666, OCT. 25, 1967

B-162666, OCT. 25, 1967

BIDS - LATE - TELEGRAPHIC MODIFICATION DECISION TO DINGER CONSTRUCTION CO. RE PROPRIETY OF CONSIDERATION OF TELEGRAPHIC BID MODIFICATIONS RECEIVED LATE BY CHESAPEAKE DIVISION, NAVAL FACILITIES ENGINEERING COMMAND. BIDDER WHO SENT TWO TELEGRAPHIC MODIFICATIONS REDUCING BID PRICE WHICH REMAINED AT THE NAVAL COMMUNICATIONS CENTER, 22 MINUTES AND 23 MINUTES TO BE PROCESSED AND RECEIVED BY THE BID OPENING OFFICE BEFORE TIME SCHEDULED FOR OPENING HAS NOT SUBMITTED MODIFICATION IN ADEQUATE TIME FOR HANDLING AND THEREFORE MUST BEAR RESPONSIBILITY FOR LATE RECEIPT.

TO DINGER CONTRACTING CO.:

REFERENCE IS MADE TO THE TELEGRAM OF OCTOBER 11, 1967, AND TO A COPY OF A LETTER OF OCTOBER 16, 1967, TO THE PROCUREMENT AGENCY, REGARDING YOUR TELEGRAPHIC BID MODIFICATIONS RECEIVED LATE UNDER INVITATION FOR BIDS N62477-67-B-0007 ISSUED BY THE CHESAPEAKE DIVISION, NAVAL FACILITIES ENGINEERING COMMAND. YOU CONTEND THAT SUCH MODIFICATIONS SHOULD BE CONSIDERED IN DETERMINING THE LOW BIDDER UNDER THE INVITATION.

THE INVITATION FOR BIDS PROVIDES THAT BIDS WILL BE RECEIVED AT THE CHESAPEAKE DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, WASHINGTON NAVY YARD, BUILDING NO. 57, WASHINGTON, D.C. BY AMENDMENT TO THE INVITATION, THE BID OPENING TIME WAS FIXED AS 3 P.M., SEPTEMBER 27, 1967. OF THE BIDS RECEIVED AT THAT TIME, THE BIDS OF MERANDO, INC., IN THE AMOUNT OF $665,000 FOR ITEM 1 AND OF MIKE BRADFORD AND COMPANY IN THE AMOUNT OF $613,000 FOR ITEM 2 WERE THE LOWEST RECEIVED. THE NEXT DAY, AT 8:43 A.M., THE CHESAPEAKE DIVISION RECEIVED FROM YOUR COMPANY TWO TELEGRAPHIC BID MODIFICATIONS WHICH REDUCED YOUR BIDS FOR ITEMS 1 AND 2 TO $639,236 AND $610,000, RESPECTIVELY.

THE TELEGRAPHIC BID MODIFICATIONS WERE FILED WITH WESTERN UNION IN WASHINGTON, D.C., ON SEPTEMBER 27, 1967, AT 2:13 P.M. AND 2:21 P.M. WESTERN UNION TRANSMITTED THE TELEGRAMS TO THE NAVAL COMMUNICATIONS CENTER, CHELTENHAM, MARYLAND, AT 2:31 P.M. AND 2:33 P.M. THE TELEGRAMS WERE RECEIVED AT THE COMMUNICATIONS CENTER AT 2:37 P.M. AND 2:38 P.M. THE COMMUNICATIONS CENTER DID NOT RELAY THE TELEGRAMS TO THE MESSAGE CENTER IN THE WASHINGTON NAVY YARD UNTIL 4 P.M. AND 4:01 P.M. THEY WERE RECEIVED AT THE NAVY YARD MESSAGE CENTER AT 4:01 P.M. AND 4:02 P.M., AND WERE PICKED UP BY THE CHESAPEAKE DIVISION COURIER THE NEXT MORNING, SEPTEMBER 28, 1967, AND DELIVERED TO THE CONTRACTING OFFICE AT 8:43 A.M.

PARAGRAPH 2-305 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT MODIFICATIONS OF BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE LATE MODIFICATIONS AND ARE SUBJECT TO THE LATE BID RULES SET FORTH IN ASPR 2-303. THE LATTER SECTION PROVIDES THAT A LATE TELEGRAPHIC BID SHALL BE CONSIDERED FOR AWARD ONLY IF IT IS RECEIVED PRIOR TO AWARD AND THE LATENESS IS DUE EITHER TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE GOVERNMENT INSTALLATION, IN THE ABSENCE OF WHICH IT WOULD HAVE BEEN RECEIVED IN TIME AT THE OFFICE DESIGNATED.

IT APPEARS THAT WESTERN UNION HANDLED THE TELEGRAMS IN A TIMELY MANNER. AFTER THE TELEGRAMS WERE RECEIVED BY THE NAVAL COMMUNICATIONS CENTER, THERE REMAINED 22 MINUTES FOR ONE TELEGRAM AND 23 MINUTES FOR THE OTHER TO BE PROCESSED AND RECEIVED BY THE CHESAPEAKE DIVISION. IN DECISION B- 160600, FEBRUARY 16, 1967, IT WAS HELD THAT RECEIPT OF A TELEGRAPHIC BID MODIFICATION 20 MINUTES BEFORE BID OPENING TIME BY THE SAME NAVAL COMMUNICATIONS CENTER WAS LESS THAN ADEQUATE TIME FOR GOVERNMENT HANDLING OF THE TELEGRAM THROUGH TO DESTINATION AND THAT IN THE CIRCUMSTANCES THE BIDDER SHOULD BEAR THE RESPONSIBILITY FOR THE LATE RECEIPT OF THE TELEGRAM. WE HELD IN THAT DECISION THAT THE LATE TELEGRAPHIC BID MODIFICATION SHOULD NOT BE CONSIDERED IN THE EVALUATION OF BIDS. IN THAT CONNECTION, IT WAS STATED:

"IN THE IMMEDIATE CASE, IT IS NOT NECESSARY TO PASS UPON THE QUESTION WHETHER THE GOVERNMENT MISHANDLED THE TELEGRAPHIC MODIFICATION. WE NOTE THAT THERE IS AN ABSENCE OF SPECIAL PROCEDURES AT THE NAVAL COMMUNICATIONS CENTER TO HANDLE BID MODIFICATION TELEGRAMS, AND THAT THE CENTER HANDLES AN UNUSUALLY HEAVY VOLUME OF PRIORITY MESSAGES DUE TO THE STATE OF WORLD AFFAIRS. WHILE IT HAS BEEN INDICATED INFORMALLY THAT UNDER IDEAL CONDITIONS TRANSMISSION BY THE GOVERNMENT COULD BE ACCOMPLISHED IN A MATTER OF MINUTES, WE CANNOT SAY, AND THE RECORD DOES NOT ESTABLISH, THAT THE PERIOD OF 20 MINUTES REMAINING TO PROCESS AND TRANSMIT THE TELEGRAM TO THE DESIGNATED OFFICE ON THE AFTERNOON OF NOVEMBER 7, 1966, WAS ADEQUATE OR REPRESENTED A NORMAL TRANSMISSION TIME UNDER THE CIRCUMSTANCES. SEE ASPR 2 303.2/III) WHICH REQUIRES THAT EVIDENCE BE PRESENTED TO ESTABLISH THAT A TELEGRAM WOULD HAVE ARRIVED ON TIME IN THE ABSENCE OF MISHANDLING. THE RECEIVING TELEGRAPHER AT THE CENTER MUST READ THE ADDRESS AND TAKE STEPS TO REROUTE THE TELEGRAM. THE SECOND RECEIVING TELEGRAPHER MUST ALSO READ THE ADDRESS AND THEN TAKE STEPS TO SEE THAT IT IS COMMUNICATED TO THE APPROPRIATE OFFICE. AND, OF COURSE, UNDER ORDINARY CONDITIONS, THERE ARE BOUND TO BE A NUMBER OF MESSAGES ON THE TIELINES AND NOT JUST A SINGLE MESSAGE. THE AMOUNT OF VOLUME ALSO IS LIKELY TO VARY ACCORDING TO THE TIME OF DAY. ADDITIONALLY, THE SERVICE MAY WELL DEPEND UPON WHETHER THERE ARE SOME MESSAGES REQUIRING MORE EXPEDITIOUS HANDLING BECAUSE OF MILITARY PRIORITIES. IN LINE WITH THE FOREGOING, SEE B-154451, AUGUST 5, 1964, WHERE THE SENDER OF A LATE TELEGRAPHIC MODIFICATION CONTENDED THAT THE MESSAGE COULD HAVE BEEN HANDLED BY THE GOVERNMENT IN ABOUT 4 MINUTES BUT WHERE OUR OFFICE EXPRESSED DOUBT THAT 20 MINUTES WOULD HAVE BEEN AN ADEQUATE TIME SINCE ANOTHER TELEGRAPHIC MESSAGE HANDLED AROUND THE SAME TIME HAD TAKEN 26 MINUTES. IN THE FACE OF THAT DOUBT, WE FELT THAT IT WAS SOMETHING LESS THAN -CLEARLY AND CONVINCINGLY ESTABLISHED- THAT 20 MINUTES WAS ADEQUATE TIME FOR GOVERNMENT HANDLING. UNDER THESE CIRCUMSTANCES, WE CONCLUDED THERE THAT THE BIDDER HAD TO BEAR THE RESPONSIBILITY FOR THE LATE RECEIPT OF THE TELEGRAM. WE FEEL THAT THE SAME REASONING IS APPLICABLE HERE.'

THE FACT THAT THERE REMAINED IN THIS CASE 2 AND 3 MINUTES MORE FOR THE PROCESSING OF THE TELEGRAMS BEFORE THE BID OPENING TIME THAN WAS AVAILABLE IN THE CITED CASE IS NOT SO SIGNIFICANT AS WOULD REQUIRE US TO ARRIVE AT A CONCLUSION CONTRARY TO OUR FEBRUARY 16 DECISION.

ACCORDINGLY, YOUR LATE TELEGRAPHIC MODIFICATIONS MAY NOT BE CONSIDERED IN THE EVALUATION OF BIDS.