B-163054, JAN. 9, 1968

B-163054, JAN. 9, 1968

BIDS - LATE - TELEGRAPHIC MODIFICATION DECISION TO CONTRACTING OFFICER OF AEC CONCERNING PROTEST OF KIRKLAND CONSTRUCTION COMPANY AGAINST REJECTION OF LATE TELEGRAPHIC MODIFICATION OF BID AND AWARD TO JOSEPH E. BENNETT CO., INC. A BIDDER WHO WOULD HAVE BEEN LOW IF A LATE TELEGRAPHIC BID MODIFICATION DISPATCHED AT 2:15 P.M. IN CAMBRIDGE, MASS. AND RECEIVED AT PROCURING AGENCY AT 3:39 P.M. COULD BE CONSIDERED AS HAVING BEEN ABNORMALLY DELAYED MUST HAVE REJECTION OF LATE TELEGRAPHIC MODIFICATION REGARDED AS PROPER SINCE RECORD OF TELEGRAPHIC OFFICE WHERE DELAY OCCURRED DOES NOT SHOW ANY APPRECIABLE DELAY EVEN THOUGH TELEGRAPHIC OFFICE THAT RECEIVED MESSAGE INDICATES ABNORMAL DELAY.

TO MR. SMITH:

YOUR LETTER OF DECEMBER 6, 1967, REQUESTS OUR DECISION ON THE PROTEST OF THE KIRKLAND CONSTRUCTION COMPANY THAT ITS LATE TELEGRAPHIC BID MODIFICATION SUBMITTED UNDER INVITATION NO. NY-2-68-56, ISSUED BY THE NEW YORK OPERATIONS OFFICE, UNITED STATES ATOMIC ENERGY COMMISSION, IS ACCEPTABLE ON THE GROUND THAT ITS LATE RECEIPT WAS CAUSED BY A DEPARTURE FROM NORMAL TRANSMISSION PROCEDURE BY WESTERN UNION.

THE BID OPENING TIME STATED IN THE INVITATION WAS 3:00 P.M., EDST, OCTOBER 9, 1967. THE INVITATION CONTAINED A PROVISION ALLOWING THE CONSIDERATION OF TELEGRAPHIC BID MODIFICATIONS RECEIVED AT THE OFFICE DESIGNATED BY THE TIME SET FOR OPENING OF BIDS. KIRKLAND'S TELEGRAPHIC MODIFICATION, WHICH WOULD HAVE MADE IT THE LOW BIDDER, WAS FILED WITH WESTERN UNION IN CAMBRIDGE, MASSACHUSETTS AT 2:15 P.M., AND WAS RECEIVED BY TELEPRINTER AT THE NEW YORK OPERATIONS OFFICE AT 3:39 P.M., A TRANSMISSION TIME OF 1 HOUR AND 24 MINUTES.

THE KIRKLAND MODIFICATION WAS NOT CONSIDERED AND THE BID OF THE JOSEPH E. BENNETT COMPANY, NC., THEREFORE BECAME THE LOW BID. AFTER INFORMAL DISCUSSIONS WITH AEC PERSONNEL, KIRKLAND FORMALLY PROTESTED TO THE AEC NEW YORK OPERATIONS OFFICE AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER. ON NOVEMBER 9, 1967, THE CONTRACTING OFFICER DETERMINED THAT IT WAS NECESSARY TO MAKE AWARD NOTWITHSTANDING THE PROTEST AND A NOTICE OF AWARD WAS ISSUED TO THE JOSEPH E. BENNETT COMPANY, INC., ON THAT DATE.

IN SUPPORT OF ITS CONTENTION THAT THE LATE RECEIPT OF ITS TELEGRAM WAS THE RESULT OF A DEPARTURE FROM NORMAL WESTERN UNION TRANSMISSION PROCEDURE, KIRKLAND SUBMITTED LETTERS FROM THE CAMBRIDGE WESTERN UNION OFFICE STATING THAT THE KIRKLAND TELEGRAM WAS RECEIVED BY TELEPHONE AT :15 P.M. AND WAS TRANSMITTED TO THE NEW YORK WESTERN UNION OFFICE AT 2:47 P.M. THE MESSAGE WAS RECEIVED AT THE NEW YORKWESTERN UNION OFFICE AT 2:47 AND TELEPRINTED TO AEC AT 3:39 P.M. IN A LETTER DATED OCTOBER 26, 1967, FROM THE REGIONAL MANAGER OF THE WESTERN UNION BOSTON OFFICE, THE FOLLOWING STATEMENT WAS MADE: "WESTERN UNION CANNOT AND DOES NOT GUARANTEE A SPECIFIC TIME OF DELIVERY. HOWEVER, WE DO GIVE PRIORITY IN HANDLING TO CERTAIN TYPES OF MESSAGES AND THE TEXT OF YOUR MESSAGE WAS SUCH THAT IT SHOULD HAVE BEEN GIVEN THE RX CLASSIFICATION, INDICATING RECOGNITION OF THE PRIORITY GROUP IN WHICH IT BELONGED. WE WOULD EXPECT THAT DELIVERY OF A MESSAGE IN THAT PRIORITY CLASSIFICATION WOULD ORDINARILY HAVE BEEN EFFECTED BEFORE 3:00 P.M. INASMUCH AS IT WAS NOT, IT CAN BE SAID THAT ABNORMAL DELAY DID OCCUR.'

SINCE THE NEW YORK WESTERN UNION OFFICE WAS ALSO INVOLVED IN THE TRANSMISSION OF THE TELEGRAM IN QUESTION, THE CONTRACTING OFFICER REQUESTED ITS COMMENTS AS TO WHETHER THE MESSAGE WAS FILED ,IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TO US BY NORMAL TRANSMISSION PROCEDURE BY 3:00 P.M. ON OCTOBER 9, 1967.' A COPY OF THE OCTOBER 16 LETTER FROM THE BOSTON REGIONAL OFFICE WAS ALSO FURNISHED THE NEW YORK WESTERN UNION OFFICE. REPLY, THE NEW YORK OFFICE STATED THAT ITS SPEED OF SERVICE OBJECTIVE IS 60 MINUTES AND THAT IN ORDER FOR A TELEGRAM TO BE RECEIVED BY 3:00 P.M. IT WOULD HAVE TO BE PLACED BY 2:00 P.M. RATHER THAN 2:15 P.M., AS WAS THE CASE HERE. THE NEW YORK OFFICE CONCLUDED THAT,"WHILE MANY TELEGRAMS MEET OUR OBJECTIVES AND ARE DELIVERED WELL WITHIN THE 60 MINUTE PERIOD WE CANNOT CONSIDER THAT THE MESSAGE IN QUESTION WAS ABNORMALLY DELAYED.'

THE CONTRACTING OFFICER DENIED THE KIRKLAND PROTEST ON THE GROUND THAT KIRKLAND HAD NOT PRESENTED CLEAR AND CONVINCING EVIDENCE THAT THE LATE DELIVERY OF ITS TELEGRAM WAS DUE SOLELY TO AN ABNORMAL DELAY IN TRANSMISSION.

AFTER SUBMISSION OF THE PROTEST TO OUR OFFICE, THE CONTRACTING OFFICER DETERMINED FROM THE BOSTON WESTERN UNION OFFICE THAT KIRKLAND HAD NOT REQUESTED PRIORITY HANDLING OF ITS TELEGRAM AND THAT IT HAD NOT SPECIFIED THAT THE TELEGRAM BE DELIVERED BY 3:00 P.M., ALTHOUGH KIRKLAND'S ATTORNEY HAS MAINTAINED THAT THE RX OR PRIORITY RATING WAS REQUESTED AND THAT THE REQUIRED TIME OF DELIVERY WAS SPECIFIED.

FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.303-4 PLACES THE BURDEN OF PROVING THAT A LATE TELEGRAPHIC BID MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURE ON THE BIDDER AND REQUIRES THAT THE EVIDENCE SUBMITTED BE SUBSTANTIATED BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY. THIS OFFICE HAS REPEATEDLY HELD THAT THE BIDDER MUST ANTICIPATE ANY NORMAL, USUAL, OR FORESEEABLE DELAYS WHICH MIGHT BE EXPECTED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES TRANSMISSION. SEE 40 COMP. GEN. 290; 46 ID. 13. IN THIS REGARD, IN 40 COMP. GEN. 290 IT WAS HELD THAT DELIVERY BY TELEGRAPH IS DEPENDENT ON OPERATING CONDITIONS AND VOLUME OF BUSINESS WHICH VARY FROM HOUR TO HOUR AND DAY TO DAY.

WHILE THE BOSTON WESTERN UNION OFFICE HAS STATED THAT THE TELEGRAM IN QUESTION DID NOT RECEIVE THE RX CLASSIFICATION WHICH IS USUALLY GIVEN TO TELEGRAMS OF THE TYPE HERE INVOLVED AND THAT AN RX TELEGRAM WOULD NORMALLY HAVE BEEN DELIVERED BEFORE 3:00 P.M., IT HAS NOT BEEN ESTABLISHED THAT THE FAILURE TO USE THE RX PRIORITY CLASSIFICATION WAS THE CAUSE OF THE DELAY ENCOUNTERED IN THE TELEGRAM'S HANDLING. THE TIME LAG BETWEEN RECEIPT OF THE MESSAGE IN CAMBRIDGE AND TRANSMISSION TO NEW YORK WAS 10 MINUTES, WHICH WOULD APPEAR TO BE A REASONABLE TIME FOR THAT PORTION OF THE TRANSMISSION. THERE WAS A DELAY OF 22 MINUTES BEFORE THE MESSAGE WAS RECEIVED BY THE NEW YORK OFFICE, AND A DELAY OF 42 MINUTES BEFORE THE MESSAGE WAS TELEPRINTED TO AEC. IT SEEMS CLEAR, THEREFORE, THAT THE DELAY WHICH RESULTED IN THE LATE RECEIPT OF THE TELEGRAM OCCURRED IN THE NEW YORK WESTERN UNION OFFICE. BUT THAT OFFICE HAS NOT IDENTIFIED THE ACTUAL CAUSE OF THE DELAY. HOWEVER, IT HAS ADVISED THAT THE TELEGRAM WAS NOT "ABNORMALLY DELAYED," INDICATING THAT ANY DELAYS WHICH MAY HAVE ENSUED WERE OF THE TYPE WHICH MUST BE ANTICIPATED BY THE BIDDER. ADDITIONALLY, THE CONTRACTING OFFICER ADVISES THAT TRANSMISSION TIME FOR 3 OTHER TELEGRAPHIC MODIFICATIONS FROM THE BOSTON AREA VARIED FROM 55 MINUTES TO 1 HOUR AND 17 MINUTES, INDICATING, IN OUR VIEW, THAT OPERATING CONDITIONS WERE SUCH ON THE DAY IN QUESTION THAT A TRANSMISSION TIME IN EXCESS OF 45 MINUTES WAS NORMAL RATHER THAN ABNORMAL.

IN OUR OPINION, THE CONCLUSION OF THE WESTERN UNION OFFICE WHERE THE DELAY ACTUALLY OCCURRED AS TO THE NATURE OF THAT DELAY MUST BE ACCEPTED OVER THAT OF ANOTHER OFFICE WHICH HANDLED THE MESSAGE BUT WHICH ENCOUNTERED NO APPRECIABLE DELAY. FURTHER, THE CONCLUSION OF THE BOSTON OFFICE THAT ABNORMAL DELAY OCCURRED IS NOT SUBSTANTIATED BY FACTS AS REPORTED BY THAT OFFICE BECAUSE, AS MENTIONED ABOVE, IT HAS NOT BEEN ESTABLISHED THAT THE TELEGRAM WOULD HAVE BEEN DELIVERED WITHIN 45 MINUTES HAD IT RECEIVED RX PRIORITY HANDLING.

IN AN ALTERNATIVE ARGUMENT, IT IS CONTENDED THAT FPR 1-2.305 PROVIDES FOR THE ACCEPTANCE OF A LATE MODIFICATION OF "AN OTHERWISE ACCEPTABLE BID WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT" WHETHER OR NOT THE BID WAS THE LOWEST RECEIVED BEFORE BEING MODIFIED. THE CITED FPR SECTION PROVIDES FOR CONSIDERATION OF A LATE MODIFICATION "OF THE OTHERWISE SUCCESSFUL BID" WHERE SUCH MODIFICATION MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT. SINCE A BID WHICH WAS NOT LOW BEFORE MODIFICATION CANNOT BE REGARDED AS "THE OTHERWISE SUCCESSFUL BID," THE CITED FPR SECTION IS NOT FOR APPLICATION IN THE INSTANT CASE.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, WE CONCLUDE THAT THE REJECTION OF KIRKLAND'S LATE BID MODIFICATION WAS PROPER.