B-165474, JAN. 8, 1969

B-165474: Jan 8, 1969

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SECRETARY: REFERENCE IS MADE TO LETTER DATED DECEMBER 3. WERE RECEIVED AND WERE OPENED AT THE SCHEDULED TIME. THE BID OF KINGS POINT WAS NOT LOW WITH RESPECT TO ANY ITEM. KINGS POINT HAD SENT TELEGRAPHIC MODIFICATION OF ITS BID WHICH WAS NOT RECEIVED IN THE PURCHASING OFFICE UNTIL AFTER THE BID OPENING. THE SOLE ISSUE RAISED BY THE PROTEST IS WHETHER THE TELEGRAPHIC MODIFICATION OF KINGS POINT'S BID MAY BE CONSIDERED FOR AWARD OR WHETHER IT MUST BE REJECTED AS AN UNACCEPTABLE LATE MODIFICATION. THE FACTS REGARDING THE RECEIPT OF THE TELEGRAPHIC MESSAGE OF KINGS POINT AT WRIGHT-PATTERSON AIR FORCE BASE AND ITS HANDLING AFTER RECEIPT AT THAT INSTALLATION ARE CLEAR AND APPARENTLY NOT DISPUTED.

B-165474, JAN. 8, 1969

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED DECEMBER 3, 1968, FROM THE DEPUTY CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S-AND-L, FURNISHING A REPORT ON THE PROTEST OF KINGS POINT INDUSTRIES, INCORPORATED (KINGS POINT), AGAINST THE PROPOSED REJECTION OF A TELEGRAPHIC MODIFICATION OF ITS BID UNDER SOLICITATION NO. (IFB) F33657-69 -B-0010, ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, AFSC, WRIGHT- PATTERSON AIR FORCE BASE, OHIO.

THE SOLICITATION, ISSUED AUGUST 15, 1968, INVITED BIDS ON 3 ITEMS OF AIRCREWMEN ANTI-EXPOSURE SUITS, PLUS AN ADDITIONAL ITEM FOR DATA. THE IFB ESTABLISHED A BID OPENING DATE OF 3:00 P.M., E.D.T., SEPTEMBER 17, 1968, AND REQUESTED BIDS TO BE ADDRESSED TO THE CONTRACTUAL INSTRUMENTS DIVISION, ATTENTION: ASKI, AFSC AERONAUTICAL SYSTEMS DIVISION, WRIGHT- PATTERSON AIR FORCE BASE, OHIO.

FIVE BIDS, INCLUDING THE BID OF KINGS POINT, WERE RECEIVED AND WERE OPENED AT THE SCHEDULED TIME. THE BID OF KINGS POINT WAS NOT LOW WITH RESPECT TO ANY ITEM. HOWEVER, KINGS POINT HAD SENT TELEGRAPHIC MODIFICATION OF ITS BID WHICH WAS NOT RECEIVED IN THE PURCHASING OFFICE UNTIL AFTER THE BID OPENING. THIS MODIFICATION, IF PROPER FOR CONSIDERATION, WOULD RESULT IN MAKING THE BID OF KINGS POINT LOW WITH RESPECT TO ITEMS 2 AND 3.

THE SOLE ISSUE RAISED BY THE PROTEST IS WHETHER THE TELEGRAPHIC MODIFICATION OF KINGS POINT'S BID MAY BE CONSIDERED FOR AWARD OR WHETHER IT MUST BE REJECTED AS AN UNACCEPTABLE LATE MODIFICATION.

THE FACTS REGARDING THE RECEIPT OF THE TELEGRAPHIC MESSAGE OF KINGS POINT AT WRIGHT-PATTERSON AIR FORCE BASE AND ITS HANDLING AFTER RECEIPT AT THAT INSTALLATION ARE CLEAR AND APPARENTLY NOT DISPUTED. THE TELEGRAPHIC (TELETYPE) MODIFICATION WAS RECEIVED AT THE BASE COMMUNICATIONS CENTER AT 12:09 P.M., SEPTEMBER 17, 1968, THAT IS, ALMOST 3 HOURS PRIOR TO THE TIME SET FOR BID OPENING. HOWEVER, FOR THE REASONS HEREINAFTER STATED, THE MODIFICATION WAS NOT RECEIVED IN THE PURCHASING OFFICE WHERE THE BIDS WERE TO BE OPENED UNTIL 11:15 A.M. ON SEPTEMBER 20. ONE PRINCIPAL REASON FOR THE DELAY WAS THE FACT THAT THE MODIFICATION WAS ADDRESSED MERELY TO "WRIGHT-PATTERSON AFB, OHIO" AND NOT TO THE OFFICE DESIGNATED IN THE IFB. IN ACCORDANCE WITH NORMAL PROCEDURES, THE MODIFICATION WAS DISPATCHED BY THE BASE COMMUNICATIONS CENTER TO THE ADMINISTRATIVE SERVICES MAILROOM FOR SORTING AND DISTRIBUTION. PRESUMABLY, IT WAS RECEIVED IN THE MAILROOM WITHIN 30 MINUTES FROM THE TIME IT WAS RECEIVED AT THE BASE, THAT IS, ON OR BEFORE 12:39 P.M. THE MAIL CLERK WHO SORTED THE TELEGRAPHIC COMMUNICATION IN THE MAILROOM CORRECTLY ASSUMED THAT IT PERTAINED TO A PROCUREMENT ACTION BUT FOR LACK OF AN ADDRESSEE ASSUMED THAT IT BELONGED TO THE BASE PROCUREMENT OFFICE AND DISPATCHED THE COMMUNICATION TO THAT OFFICE WHERE IT WAS THEN REROUTED TO AERONAUTICAL SYSTEMS DIVISION. HAD THE TELETYPE BEEN ADDRESSED TO THE AERONAUTICAL SYSTEMS DIVISION, ATTENTION: ASKI, AS PROVIDED IN THE IFB, THE MAIL CLERK SHOULD HAVE PLACED THE COMMUNICATION IN THE 1:10 P.M. PICK UP FOR DELIVERY TO THE AREA OF THE BASE IN WHICH THE ASD PURCHASING OFFICE IS LOCATED AND THE COMMUNICATION SHOULD, IN THAT CASE, HAVE BEEN RECEIVED IN THE ASD PURCHASING OFFICE PRIOR TO THE TIME SET FOR THE OPENING OF BIDS.

THE CONTRACTING OFFICER DETERMINED THAT THE FAILURE OF THE TELEGRAPHIC MODIFICATION TO HAVE BEEN RECEIVED IN TIME FOR THE BID OPENING WAS DUE PRIMARILY TO THE FACT THAT KINGS POINT DID NOT ADDRESS IT AS REQUIRED, AND THAT THEREFORE THE DELAY WAS NOT DUE TO ANY MISHANDLING BY THE GOVERNMENT AFTER ITS RECEIPT AT THE INSTALLATION. THE CONTRACTING OFFICER PROPOSES, THEREFORE, TO REJECT IT AS A LATE AND UNACCEPTABLE MODIFICATION.

KINGS POINT PROTESTED THE PROPOSED REJECTION OF ITS TELEGRAPHIC MODIFICATION ON THE BASIS THAT, WHILE IT WAS ADDRESSED ONLY TO "WRIGHT PATTERSON AFB, OHIO" , THE FIRST LINE OF THE MESSAGE READ ,REOURBID: F33657-69-B-0010 * * *" AND F33657 IS THE ASPR APPENDIX N "AIR FORCE ACTIVITY ADDRESS NUMBER" FOR ASD. IT IS URGED THAT SUCH IDENTIFICATION OF THE PURCHASING OFFICE SHOULD HAVE ENABLED THE ADMINISTRATIVE SERVICES MAILROOM EMPLOYEES TO PROPERLY ROUTE THE MESSAGE.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-305 PROVIDES THAT A LATE MODIFICATION OF A BID IS SUBJECT TO THE RULES AND PROCEDURES PRESCRIBED BY ASPR 2-303. THAT PROVISION READS IN PERTINENT PART AS FOLLOWS:

"2-303 LATE BIDS.

"2-303.1 GENERAL. BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE LATE BIDS,- EVEN THOUGH RECEIVED ONLY ONE OR TWO MINUTES LATE. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.

"2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

"/I) IT IS RECEIVED BEFORE AWARD; AND * * *

"/III) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.'

WE HAVE CONSTRUED THIS PROVISION OF ASPR AS AUTHORIZING THE CONSIDERATION OF LATE MODIFICATIONS OF BIDS WHICH ARRIVED AT THE INSTALLATION IN SUFFICIENT TIME PRIOR TO THE SCHEDULED BID OPENING TO HAVE BEEN TIMELY DELIVERED TO THE PLACE DESIGNATED IN THE INVITATION UNDER ESTABLISHED PROCEDURES BUT WHICH NEVERTHELESS DID NOT REACH THE DESIGNATED BID OPENING OFFICE UNTIL AFTER BID OPENING. THE DELAY IN SUCH CASES WAS REGARDED AS HAVING BEEN ATTRIBUTABLE TO MISHANDLING ON THE PART OF THE INSTALLATION. SEE 42 COMP. GEN. 508; 43 ID. 317; 46 ID. 771 AND B-165349, NOVEMBER 1, 1968, 48 COMP. GEN. ---------.

IN REVIEWING THE PROCUREMENT RECORD, HEADQUARTERS, AIR FORCE SYSTEMS COMMAND, ANDREWS AIR FORCE BASE, AND HEADQUARTERS, UNITED STATES AIR FORCE, BOTH CONCLUDE THAT THE PROCEDURES EMPLOYED IN THIS CASE CONSTITUTED MISHANDLING BY THE INSTALLATION. THE REPORT OF THE LATTER IS, IN PART, AS FOLLOWS: "5. A REVIEW OF THE INFORMATION IN THE ATTACHED FILE INDICATES THAT THE PROCEDURES NORMALLY USED BY THE ADMINISTRATION SERVICES MAILROOM AT THE BASE FOR THE DISPATCH AND DISTRIBUTION OF TELEGRAPHIC COMMUNICATIONS WERE FOLLOWED IN THIS CASE. IN THIS RESPECT, THEREFORE, IT CANNOT BE SAID THAT THERE WAS MISHANDLING AT THE INSTALLATION TO JUSTIFY CONSIDERATION OF THIS LATE MODIFICATION. HOWEVER, IT APPEARS THAT THE PROCEDURES USED BY THE ADMINISTRATIVE SERVICES MAILROOM AT THAT TIME WERE NOT ADEQUATE TO INSURE THE PROPER TRANSMISSION OF TELEGRAPHIC MODIFICATIONS WITHOUT UNREASONABLE DELAY. THIS IS EVIDENCED BY THE FACT THAT ANOTHER TELEGRAPHIC MODIFICATION OF A BID UNDER THIS SOLICITATION SUBMITTED BY RUBBER FABRICATORS, INC., ALTHOUGH PROPERLY ADDRESSED AND RECEIVED IN THE BASE COMMUNICATIONS CENTER AS EARLY AS 1:15 A.M. 17 SEPTEMBER, WAS NOT RECEIVED IN THE PURCHASING OFFICE UNTIL THE AFTERNOON OF THE FOLLOWING DAY. THE CONTRACTING OFFICER AGREED THAT THIS TELEGRAPHIC MODIFICATION WAS MISHANDLED AT THE INSTALLATION AND THEREFORE SHOULD BE CONSIDERED AS A LATE ACCEPTABLE MODIFICATION. "6. THERE WAS STILL ANOTHER TELEGRAPHIC MODIFICATION THAT WAS RECEIVED UNDER THIS SOLICITATION. THIS WAS WITH RESPECT TO THE BID OF PAYNE AND ASSOCIATES INC. THIS TELEGRAPHIC MODIFICATION WAS RECEIVED IN THE BASE COMMUNICATIONS CENTER AT 13:35 P.M. 17 SEPTEMBER. ADMITTEDLY, THIS WAS RECEIVED TOO LATE FOR CONSIDERATION EVEN WITHOUT THE POSSIBILITY OF MISHANDLING. HOWEVER, THIS TELEGRAPHIC MODIFICATION WAS NOT RECEIVED IN THE PURCHASING OFFICE UNTIL 10:30 A.M. OF THE NEXT DAY. THE DELAY IN THE RECEIPT OF ALL THREE TELEGRAPHIC MODIFICATIONS RAISES SOME DOUBT AS TO THE ADEQUACY OF THE PROCEDURES USED IN THE WRIGHT PATTERSON AIR FORCE BASE MAIL DISTRIBUTION CHANNELS TO ASSURE THE PROMPT DISTRIBUTION OF TELEGRAPHIC MESSAGES. "7. THERE IS AN ADDITIONAL REASON TO SUPPORT A FINDING THAT THE PROCEDURES USED IN THE ADMINISTRATIVE SERVICES MAILROOM AT THE BASE WERE NOT ADEQUATE TO ASSURE THE PROPER TRANSMISSION OF TELEGRAPHIC MODIFICATIONS WITHOUT UNREASONABLE DELAY. THE TELEGRAPHIC MODIFICATION OF KINGS POINT, ALTHOUGH NOT ADDRESSED PROPERLY, CONTAINED THE FOLLOWING REFERENCE IN THE FIRST LINE: "REOURBID F33657-69-B-0010.' CLERKS IN THE ADMINISTRATIVE SERVICES MAILROOM WHO ROUTE THE MAIL ARE INSTRUCTED TO SCAN THE BODY OF THE MESSAGE FOR INFORMATION WHICH MAY SUPPLEMENT THE ADDRESS AT THE BEGINNING OF THE MESSAGE. THE CLERKS HAD BEEN INSTRUCTED TO USE ACCOUNTING AND PROPERTY CLASSIFICATION CODES FOR THAT PURPOSE. HOWEVER, NO INSTRUCTIONS HAD BEEN ISSUED WITH RESPECT TO THE CODE NUMBERS USED TO IDENTIFY PROCUREMENT ACTIVITIES AT THE BASE, SUCH AS F33657 FOR ASD. AS A RESULT OF THIS PROTEST, INSTRUCTIONS HAVE NOW BEEN ISSUED TO THE CLERKS REGARDING THE USE OF THE STATION CODES (ACTIVITY ADDRESS NUMBERS) OF ASPR APPENDIX N. "8. IN VIEW OF THE ABOVE CIRCUMSTANCES, WE ARE OF THE OPINION THAT A FINDING MAY PROPERLY BE MADE IN THIS CASE THAT THE TELEGRAPHIC MODIFICATION OF KINGS POINT'S BID WAS MISHANDLED AFTER RECEIPT AT WRIGHT-PATTERSON AIR FORCE BASE AND BUT FOR THE MISHANDLING BY THE GOVERNMENT THIS MODIFICATION WOULD HAVE BEEN RECEIVED AT THE DESIGNATED OFFICE PRIOR TO THE TIME SET FOR THE OPENING OF BIDS. WE BELIEVE, THEREFORE, THAT THIS MODIFICATION SHOULD BE CONSIDERED AS A LATE ACCEPTABLE MODIFICATION UNDER THE PROVISIONS OF ASPR 2-304, 2-305 AND 2-303.2 AND THAT THE AWARD FOR ITEMS 2 AND 3 SHOULD BE MADE TO KINGS POINT INDUSTRIES, INC. * * *"

WE AGREE THAT, UNDER THE FACTS AND CIRCUMSTANCES INVOLVED, THE RECEIPT OF THE TELEGRAPHIC MODIFICATION OF KINGS POINT'S BID AT THE BID OPENING OFFICE AFTER THE BID OPENING WAS DUE TO MISHANDLING AFTER RECEIPT AT WRIGHT-PATTERSON AIR FORCE BASE. ACCORDINGLY, THE TELEGRAPHIC MODIFICATION OF KINGS POINT'S BID IS PROPER FOR CONSIDERATION IN MAKING AWARD.