B-165243, OCT. 22, 1968

B-165243: Oct 22, 1968

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A. SALERNO WHICH WAS OPENED AT THAT TIME WAS NOT THE LOW BID. A TELEGRAPHIC MODIFICATION WAS RECEIVED FROM SALERNO REDUCING THE BID IN AN AMOUNT SUFFICIENT TO MAKE IT THE LOW BID. THE CONTRACTING OFFICER ADVISED SALERNO OF THE LATE RECEIPT OF THE TELEGRAPHIC MODIFICATION AND THAT IT WOULD NOT BE CONSIDERED FOR AWARD IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT IT WAS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE AND A DETERMINATION BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IN RESPONSE TO THE CONTRACTING OFFICER'S LETTER THERE WERE FURNISHED AFFIDAVITS FROM A CLERK AND OFFICE MANAGER OF THE WESTERN UNION OFFICE TO THE EFFECT THAT THE TELEGRAM ADDRESSED TO THE CORPS OF ENGINEERS.

B-165243, OCT. 22, 1968

TO MR. SAMUEL PANZER:

THE CORPS OF ENGINEERS HAS FORWARDED THE RECORD OF THE REJECTION OF THE LATE TELEGRAPHIC BID MODIFICATION OF A. A. SALERNO UNDER INVITATION FOR BIDS DACA51-69-B-0001 FOR OUR REVIEW PURSUANT TO THE REQUEST IN YOUR LETTER OF SEPTEMBER 20, 1968.

THE INVITATION FOR BIDS, AS AMENDED, PROVIDED FOR BID OPENING ON SEPTEMBER 4, 1968, AT 2:00 P.M. THE BID RECEIVED FROM A. A. SALERNO WHICH WAS OPENED AT THAT TIME WAS NOT THE LOW BID. AT :26 P.M., A TELEGRAPHIC MODIFICATION WAS RECEIVED FROM SALERNO REDUCING THE BID IN AN AMOUNT SUFFICIENT TO MAKE IT THE LOW BID.

BY LETTER OF SEPTEMBER 5, 1968, THE CONTRACTING OFFICER ADVISED SALERNO OF THE LATE RECEIPT OF THE TELEGRAPHIC MODIFICATION AND THAT IT WOULD NOT BE CONSIDERED FOR AWARD IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT IT WAS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE AND A DETERMINATION BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

IN RESPONSE TO THE CONTRACTING OFFICER'S LETTER THERE WERE FURNISHED AFFIDAVITS FROM A CLERK AND OFFICE MANAGER OF THE WESTERN UNION OFFICE TO THE EFFECT THAT THE TELEGRAM ADDRESSED TO THE CORPS OF ENGINEERS, 26 FEDERAL PLAZA, NEW YORK, NEW YORK, WAS FILED AT 12:52 P.M. ON SEPTEMBER 4, 1968, THAT IT WAS TRANSMITTED AT 12:58 P.M. BEARING AN "RX" SYMBOL DENOTING "RUSH," AND THAT THERE WAS AMPLE TIME FOR DELIVERY PRIOR TO 2:00 P.M. UNDER NORMAL TRANSMISSION PROCEDURE. A LETTER WAS ALSO FURNISHED FROM THE MANAGER CUSTOMER SERVICE, WESTERN UNION, WHICH STATED:

"THE MESSAGE WAS FILED WITH US AT NEW ROCHELLE AT 12:52 P.M. OUR SERVICE OBJECTIVE IS TO DELIVER A FULL RATE TELEGRAM WITHIN SEVENTY FIVE MINUTES FROM THE TIME IT IS FILED AT THE OFFICE OF ORIGIN TO THE TIME IT IS DELIVERED BY MESSENGER AT THE DESTINATION POINT. ACCORDINGLY, UNDER NORMAL CIRCUMSTANCES OUR OBJECTIVE WOULD BE TO DELIVER THE MESSAGE BEFORE 2:07 P.M. IN MOST CASES MESSAGES ARE DELIVERED WELL WITHIN OUR SERVICE OBJECTIVE BUT IN THIS INSTANCE WE DID NOT DO SO AND IT WAS NOT DELIVERED UNTIL 4:15 P.M. THROUGH NO FAULT OF THE SENDER.' IN ADDITION, YOU POINTED OUT THAT A TELEGRAM NOT MARKED "RX" SENT BY SALERNO FROM THE NEW ROCHELLE OFFICE OF WESTERN UNION AT NOON ON SEPTEMBER 11, 1968, ARRIVED IN YOUR OFFICE IN NEW YORK CITY 25 MINUTES AFTER FILING. FURTHER, YOU STATED THAT THE WESTERN UNION TARIFF CONTAINS INSTRUCTIONS TO EMPLOYEES AS FOLLOWS:

"DO NOT MAKE ANY DEFINITE PROMISE RESPECTING THE TIME OF TRANSMISSION OR DELIVERY OF A MESSAGE. IF THE SENDER OF A FAST TELEGRAM ASKS ABOUT TIME OF DELIVERY, THE ACCEPTING EMPLOYEE SHOULD EPLY: -YOUR TELEGRAM SHOULD REACH ...... IN ABOUT HALF AN HOUR.- TO THIS MUST BE ADDED THE TIME REQUIRED FOR LOCAL DELIVERY.'

THE CONTRACTING OFFICER REVIEWED THE EVIDENCE AND, BECAUSE OF THE STATEMENT OF THE WESTERN UNION MANAGER CUSTOMER SERVICE THAT UNDER NORMAL CIRCUMSTANCES THE OBJECTIVE WOULD BE TO DELIVER THE MESSAGE BEFORE 2:07 P.M., CONCLUDED THAT IT WAS NOT CLEAR AND CONVINCING THAT THE TELEGRAM WAS FILED IN SUFFICIENT TIME TO ASSURE DELIVERY BY NORMAL TRANSMISSION PROCEDURE BY 2:00 P.M. THE CONTRACTING OFFICER THEREFORE DECIDED NOT TO CONSIDER THE TELEGRAPHIC BID MODIFICATION AND SO ADVISED SALERNO BY LETTER OF SEPTEMBER 17, 1968.

YOU DISPUTED THE CONTRACTING OFFICER'S DECISION BY LETTER OF SEPTEMBER 20, 1968, ON THE BASIS THAT SUFFICIENT CONSIDERATION WAS NOT GIVEN TO THE FACT THAT THE TELEGRAM WAS "RX" AND TO THE OTHER EVIDENCE FURNISHED, AND YOU REQUESTED THAT THE MATTER BE REFERRED TO OUR OFFICE.

FOLLOWING RECEIPT OF YOUR SEPTEMBER 20 LETTER, THE CONTRACTING OFFICER DECIDED, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2 407.9 (B) (3), TO MAKE AWARD TO THE BIDDER WHO WAS LOW AT THE SCHEDULED BID OPENING TIME ON THE BASIS THAT A PORTION OF THE FUNDS REQUIRED FOR AWARD OF THE PROJECT WOULD EXPIRE ON SEPTEMBER 30, 1968, AND THAT THE RESULTANT DELAY FROM SUCH EXPIRATION WOULD INTENSIFY ALREADY HAZARDOUS HEALTH CONDITIONS.

ALTHOUGH EVIDENCE WAS FURNISHED INDICATING THAT THE TELEGRAPHIC BID MODIFICATION COULD HAVE ARRIVED ON TIME BASED ON THE FILING TIME, THERE IS NO INDICATION AS TO WHAT WAS THE CAUSE OF THE DELAY OR WHERE THE DELAY OCCURRED, AND THE STATEMENT OF THE WESTERN UNION MANAGER CUSTOMER SERVICE, THAT "UNDER NORMAL CIRCUMSTANCES OUR OBJECTIVE WOULD BE TO DELIVER THE MESSAGE BEFORE :07 P.M., " INDICATES THAT AN ARRIVAL AS LATE AS 2:07 P.M. WOULD HAVE BEEN POSSIBLE UNDER NORMAL TRANSMISSION PROCEDURE. FURTHER, OUR OFFICE HAS STATED THAT, IN THE ABSENCE OF EVIDENCE INDICATING THAT THE DELAY WAS CAUSED BY OTHER THAN THE VOLUME OF BUSINESS, IT WOULD SEEM THAT THE DELAY WAS CAUSED BY SUCH CONDITION WHICH THE BIDDER MUST ANTICIPATE AND FOR WHICH IT MUST BEAR THE RESPONSIBILITY. B-159529, OCTOBER 24, 1966.

IN VIEW OF THE CUSTOMER SERVICE MANAGER'S STATEMENT AND THE FACT THAT NO EVIDENCE WAS FURNISHED AS TO THE CAUSE OF DELAY, THE CONTRACTING OFFICER'S DETERMINATION DOES NOT APPEAR TO HAVE BEEN IMPROPER. ACCORDINGLY, THE PROTEST AGAINST THE DECISION NOT TO CONSIDER THE TELEGRAPHIC BID MODIFICATION IS DENIED.