B-164567, AUG. 20, 1968

B-164567: Aug 20, 1968

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SECRETARY: REFERENCE IS MADE TO THE PROTEST OF S. THIS MATTER IS THE SUBJECT OF A REPORT FROM THE NAVAL SUPPLY SYSTEMS COMMAND. TEPFER AND SONS NOTIFIED US THAT IT WAS WITHDRAWING ITS PROTEST. THE INVITATION WAS ISSUED ON APRIL 30. BID OPENING WAS SET FOR MAY 29 (WEDNESDAY) AT 3:00 P.M. A TELEGRAPHIC MESSAGE WAS SENT TO THE FIRMS WHICH HAD PREVIOUSLY RECEIVED DATA PACKAGES FOR THIS PROCUREMENT. ITS PURPOSE WAS TO CLARIFY AND CORRECT CERTAIN DRAWING REFERENCES LISTED IN THE INVITATION TO HAVE THEM CONFORM TO THE ACTUAL DRAWINGS FURNISHED WITH THE DATA PACKAGE. NO CHANGE IN THE EXISTING SPECIFICATION REQUIREMENTS WAS INVOLVED. BIDDERS WERE REQUESTED TO ACKNOWLEDGE RECEIPT OF THE TELEGRAPHIC CHANGES PRIOR TO BID OPENING.

B-164567, AUG. 20, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO THE PROTEST OF S. TEPFER AND SONS, INCORPORATED, UNDER INVITATION FOR BIDS NO. N00174-68-B-0297, ISSUED BY THE NAVAL ORDNANCE STATION, INDIAN HEAD, MARYLAND. THIS MATTER IS THE SUBJECT OF A REPORT FROM THE NAVAL SUPPLY SYSTEMS COMMAND, WASHINGTON, D.C., DATED JULY 11, 1968, REFERENCE SUP 0232.

ON AUGUST 9, 1968, S. TEPFER AND SONS NOTIFIED US THAT IT WAS WITHDRAWING ITS PROTEST. WE TAKE THE OPPORTUNITY, NEVERTHELESS, TO CALL YOUR ATTENTION TO A SITUATION REPORTED IN CONNECTION WITH THE MAKING OF AN AWARD UNDER THIS INVITATION WHICH SHOULD BE RECTIFIED.

THE INVITATION WAS ISSUED ON APRIL 30, 1968, COVERING A REQUIREMENT FOR WING AND ROLLERON ASSEMBLIES USED IN CONNECTION WITH THE SIDEWINDER MISSILE SYSTEM (ITEMS 1 THROUGH 3). BID OPENING WAS SET FOR MAY 29 (WEDNESDAY) AT 3:00 P.M., EDST. ON MAY 27, 1968, A TELEGRAPHIC MESSAGE WAS SENT TO THE FIRMS WHICH HAD PREVIOUSLY RECEIVED DATA PACKAGES FOR THIS PROCUREMENT. ITS PURPOSE WAS TO CLARIFY AND CORRECT CERTAIN DRAWING REFERENCES LISTED IN THE INVITATION TO HAVE THEM CONFORM TO THE ACTUAL DRAWINGS FURNISHED WITH THE DATA PACKAGE. NO CHANGE IN THE EXISTING SPECIFICATION REQUIREMENTS WAS INVOLVED, BUT BIDDERS WERE REQUESTED TO ACKNOWLEDGE RECEIPT OF THE TELEGRAPHIC CHANGES PRIOR TO BID OPENING, WHICH REMAINED SCHEDULED FOR MAY 29 AT 3:00 P.M.

BIDS WERE RECEIVED FROM FTS CORPORATION AND TEPFER IN THE TOTAL AMOUNTS, RESPECTIVELY, OF $1,259,135.20 (ALTERNATE BID) AND $1,793,450. FTS ACKNOWLEDGED RECEIPT OF THE MAY 27 BID MODIFICATION BUT NO SUCH ACKNOWLEDGEMENT WAS RECEIVED FROM TEPFER. ON FRIDAY, MAY 31, 1968, HOWEVER, A TELEGRAM WAS RECEIVED FROM TEPFER AT THE BID OFFICE QUOTING REDUCED PRICES ON THE ITEMS AND ACKNOWLEDGING THE MAY 27 MODIFICATION. TEPFER REDUCED ITS TOTAL BID PRICE TO $1,209,565.50. A TIME STAMP ON THIS LATE TELEGRAPHIC BID MODIFICATION INDICATED THAT IT HAD BEEN RECEIVED AT THE INDIAN HEAD STATION AT 3:45 P.M. ON MAY 29, 1968, OR 45 MINUTES AFTER THE 3:00 P.M. BID OPENING.

IT WAS FURTHER ESTABLISHED THAT THE TELEGRAM WAS FILED WITH THE TELEGRAPH COMPANY AT 1:44 P.M. ON MAY 29, AND TRANSMITTED TO THE NAVAL COMMUNICATION STATION, CHELTENHAM, MARYLAND, AT 1:57 P.M. THAT DAY. CHELTENHAM REPORTED THAT IT RECEIVED THE MESSAGE AT 2:14 P.M., MAY 29, AND TRANSMITTED THE MESSAGE TO THE INDIAN HEAD STATION AT 3:12 P.M. THE SAME DAY. IT STATED THAT THE MESSAGE WAS ,PROCESSED AND TRANSMITTED IN THE ORDER RECEIVED AND AFTER ALL MESSAGES OF A HIGHER PRECEDENCE IN ACCORDANCE WITH GOOD COMMUNICATIONS PRACTICES.' IT STATED FURTHER THAT "IN ACCORDANCE WITH ACP 121 US SUPP-1 (C) THE SPEED OF SERVICE OBJECTIVE FOR A ROUTINE MESSAGE IS 6 HOURS FROM THE TIME OF FILE AT THE ORIGINATORS COMMUNICATIONS CENTER TO THE TIME THE MESSAGE IS AVAILABLE FOR DELIVERY AT THE ADDRESSEE'S COMMUNICATIONS CENTER.' IN CONCLUSION, CHELTENHAM ADVISED THE CONTRACTING OFFICER THAT THE MESSAGE WAS NOT RECEIVED IN TIME TO BE PROCESSED UNDER NORMAL CONDITIONS AND TRANSMITTED PRIOR TO 1500 (3:00 P.M.), MAY 29, 1968.

BASED ON THE FOREGOING INFORMATION, THE CONTRACTING OFFICER CONCLUDED THAT THE LATE TELEGRAPHIC BID MODIFICATION COULD NOT BE CONSIDERED IN THE EVALUATION OF BIDS. IN THIS CONNECTION, THE INVITATION PROVIDED THAT LATE TELEGRAPHIC MODIFICATIONS RECEIVED BEFORE AWARD MIGHT BE CONSIDERED IF IT WAS DETERMINED BY THE GOVERNMENT THAT SUCH LATENESS WAS DUE TO DELAY BY THE TELEGRAPH COMPANY OR DUE TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. (GSA STANDARD FORM 33A DATED JULY 1966, CLAUSE 8.) THE CONTRACTING OFFICER DETERMINED THAT THE LATENESS IN THIS CASE WAS NOT DUE TO EITHER OF THESE CAUSES. ACCORDINGLY, HE MADE AWARD TO FTS CORPORATION.

THE CONTRACTING OFFICER'S REFUSAL TO CONSIDER THE LATE BID MODIFICATION IS UNDERSTANDABLE. HE WAS ADVISED BY CHELTENHAM THAT THE TEPFER BID TELEGRAM WAS NOT RECEIVED IN TIME. IT IS NOT EVEN CLEAR WHETHER THE CHELTENHAM NAVAL COMMUNICATION CENTER MAY BE REGARDED AS AN "INSTALLATION" WITHIN THE MEANING OF THE PROVISION IN THE LATE BID CLAUSE CONCERNING MISHANDLING "AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.' UNDER THE CIRCUMSTANCES WE DO NOT QUESTION THE VALIDITY OF THE AWARD TO THE FTS CORPORATION.

WE ARE CONCERNED, HOWEVER, WITH THE MATTER OF TIMELY COMMUNICATION AT CHELTENHAM. THE TELEGRAM IN QUESTION WAS TRANSMITTED BY THE TELEGRAPH COMPANY TO CHELTENHAM 1 HOUR AND 3 MINUTES PRIOR TO BID OPENING, BUT WAS NOT RECEIVED AT THE INDIAN HEAD DESTINATION UNTIL 45 MINUTES AFTER BID OPENING. YET ACCORDING TO CHELTENHAM THIS IS WELL WITHIN THE NORMAL TIME SPAN FOR TRANSMISSION OF TELEGRAPHIC BID MODIFICATIONS BY THE CENTER. THIS METHOD OF HANDLING TELEGRAMS IS NOT SATISFACTORY FROM A PROCUREMENT STANDPOINT.

IN THE PRESENT CASE A TELEGRAPHIC CHANGE IN THE INVITATION WAS SENT OUT ON MAY 27, 1968, AND WAS REQUIRED TO BE ACKNOWLEDGED BY BID OPENING TIME ON MAY 29, 1968. ACKNOWLEDGEMENT THEREOF COULD NOT REASONABLY HAVE BEEN MADE BY THIS TIME EXCEPT BY TELEGRAM. IF BID MODIFICATIONS AND ACKNOWLEDGEMENTS OF INVITATION AMENDMENTS ARE PERMITTED, AS HERE, TO BE MADE BY TELEGRAM, THE GOVERNMENT OWES BIDDERS A DUTY NOT TO ESTABLISH PROCEDURES WHICH WILL CAUSE AN UNREASONABLE DELAY IN DELIVERY OF SUCH TELEGRAMS. IT IS OUR OPINION THAT AN INTERMEDIATE DELAY OF AN HOUR OR MORE BY THE GOVERNMENT IN TRANSMITTING TELEGRAMS RECEIVED FROM WESTERN UNION TO THE MESSAGE CENTERS AT THE INSTALLATIONS TO WHICH THE TELEGRAMS ARE ADDRESSED CONSTITUTES AN UNREASONABLE DELAY. THIS IS PARTICULARLY SO WHEN IT IS CONSIDERED THAT WESTERN UNION ITSELF HAS A SERVICE OBJECTIVE OF NO MORE THAN ONE HOUR FOR DELIVERY OF TELEGRAMS TO ADDRESSES BETWEEN ANY TWO POINTS IN THE UNITED STATES.

THIS OFFICE HAS ALREADY HAD OCCASION TO NOTE THE DEFICIENCIES IN THE HANDLING OF TELEGRAPHIC BID MODIFICATIONS THROUGH CHELTENHAM. B 162666, OCTOBER 25, 1967. WE WOULD APPRECIATE YOUR ADVICE AS TO THE REASONS WHY REGULAR COMMERCIAL TELEGRAMS ARE REQUIRED TO BE ROUTED THROUGH CHELTENHAM. PLEASE ADVISE US ALSO AS TO WHAT STEPS CAN BE TAKEN TO REMEDY THE PRESENT UNSATISFACTORY SITUATION SO FAR AS TELEGRAPHIC BID MODIFICATIONS ARE CONCERNED.