B-167328, AUG. 7, 1969

B-167328: Aug 7, 1969

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A TELEGRAPHIC BID MODIFICATION WHICH WAS FILED ONLY 30 MINUTES PRIOR TO OPENING TIME AND WHICH DID NOT ARRIVE UNTIL ALMOST 3 HOURS AFTER OPENING MAY NOT BE REGARDED AS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION SO AS NOT TO HAVE BEEN LATE. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 23. BIDS WERE OPENED AS SCHEDULED IN THE CONTRACT SECTION OF THE THIRD COAST GUARD DISTRICT. FOUR BIDS WERE RECEIVED. 000 WAS LOW BUT DID NOT INCLUDE A BID PRICE FOR THE ADDITIVES. A TELEGRAPHIC MODIFICATION OF YOUR BID WAS RECEIVED IN THE COAST GUARD MESSAGE CENTER. THE TELEGRAM WAS FILED WITH THE STAMFORD. THE IFB PERMITS TELEGRAPHIC MODIFICATIONS BUT PROVIDES THAT IF SUCH A MODIFICATION IS RECEIVED AT THE OFFICE DESIGNATED IN THE IFB AFTER THE EXACT TIME SET FOR OPENING OF BIDS.

B-167328, AUG. 7, 1969

BID PROTEST - LATE TELEGRAPHIC BID MODIFICATION DECISION TO RAY ADLER, INCORPORATED, LOW BIDDER, DENYING PROTEST AGAINST FAILURE OF COAST GUARD TO CONSIDER BID AND LATE MODIFICATION INCLUDING PRICE FOR ADDITIVES LISTED IN AN AMENDMENT. A TELEGRAPHIC BID MODIFICATION WHICH WAS FILED ONLY 30 MINUTES PRIOR TO OPENING TIME AND WHICH DID NOT ARRIVE UNTIL ALMOST 3 HOURS AFTER OPENING MAY NOT BE REGARDED AS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION SO AS NOT TO HAVE BEEN LATE. ACCORDINGLY THE LATE TELEGRAPHIC BID MODIFICATION MAY NOT BE CONSIDERED.

TO RAY ADLER, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 23, 1969, AND SUPPLEMENTAL LETTER DATED JULY 9, 1969, WITH ENCLOSURE, PROTESTING AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. NO3-03948-69, ISSUED BY THE THIRD COAST GUARD DISTRICT, GOVERNORS ISLAND, NEW YORK.

THE INVITATION, ISSUED MAY 15, 1969, REQUESTED A LUMP-SUM BID FOR ALL WORK AND MATERIALS AS SPECIFIED IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS FOR CONSTRUCTION OF A NEW COAST GUARD STATION, CONSISTING OF A MAIN STATION BUILDING, WATER FRONT FACILITIES, AND SITE DEVELOPMENT, TO BE LOCATED AT NEW HAVEN, CONNECTICUT. AMENDMENT NO. 1 ISSUED ON MAY 23, 1969, IN ADDITION TO OTHER CHANGES, REQUIRED BIDDERS TO SUBMIT UNDER ADDITIVE 1 A LUMP-SUM PRICE FOR INSTALLATION OF CHAIN LINK FENCING; AND, A UNIT PRICE FOR OVER OR UNDERDRIVEN PILES PER LINEAR FOOT.

BIDS WERE OPENED AS SCHEDULED IN THE CONTRACT SECTION OF THE THIRD COAST GUARD DISTRICT, GOVERNORS ISLAND, NEW YORK, AT 2:00 P.M. ON JUNE 12, 1969. FOUR BIDS WERE RECEIVED. YOUR BID IN THE AMOUNT OF $1,500,000 WAS LOW BUT DID NOT INCLUDE A BID PRICE FOR THE ADDITIVES, NAMELY, A LUMP-SUM PRICE FOR INSTALLATION OF CHAIN LINK FENCING AND A UNIT PRICE FOR OVER OR UNDERDRIVEN PILES PER LINEAR FOOT.

AT 4:58 P.M. A TELEGRAPHIC MODIFICATION OF YOUR BID WAS RECEIVED IN THE COAST GUARD MESSAGE CENTER. THE MODIFICATION INCREASED YOUR BID BY $147,000 AND STATED A PRICE OF $8,500 AS THE LUMP-SUM PRICE FOR INSTALLATION OF THE CHAIN LINK FENCING, SPECIFICALLY STATING: "NO UNIT PRICE FOR PILES". THE TELEGRAM WAS FILED WITH THE STAMFORD, CONNECTICUT, OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY AT 1:30 P.M. ON THE BID OPENING DAY.

THE IFB PERMITS TELEGRAPHIC MODIFICATIONS BUT PROVIDES THAT IF SUCH A MODIFICATION IS RECEIVED AT THE OFFICE DESIGNATED IN THE IFB AFTER THE EXACT TIME SET FOR OPENING OF BIDS, IT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THIS IS CONTRARY TO EXISTING FEDERAL PROCUREMENT REGULATIONS (FPR), SECTIONS 1 2.303-4 AND 1-2.305, (FPR AMENDMENT 51, DECEMBER 1968), WHICH PROVIDE THAT A LATE TELEGRAPHIC BID OR MODIFICATION RECEIVED BEFORE AWARD SHALL NOT BE CONSIDERED FOR AWARD, REGARDLESS OF THE CAUSE OF THE LATE RECEIPT, INCLUDING DELAYS CAUSED BY THE TELEGRAPH COMPANY, EXCEPT FOR DELAYS DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT IN ITS TRANSMITTAL TO THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS FOR THE RECEIPT OF BIDS, AS PROVIDED FOR BIDS SUBMITTED BY MAIL (SEE SEC. 1 2.303-3 (A) (2) ).

IN THE INSTANT CASE, FOR THE REASONS HEREAFTER STATED, IT IS UNNECESSARY FOR US TO DECIDE WHETHER THE TERMS OF THE INVITATION OR THE CURRENT REGULATION SHOULD CONTROL.

THE PROVISION OF THE INVITATION, PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, SETS FORTH THE CONDITIONS UNDER WHICH TELEGRAPHIC MODIFICATIONS OF BIDS WOULD BE CONSIDERED WHEN RECEIVED LATE. IN INTERPRETING SIMILAR PROVISIONS OUR OFFICE STATED AS FOLLOWS IN 39 COMP. GEN. 586:

"THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS OF BIDS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. EXCEPTIONS TO THE RULE TEND TO PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND IT IS THEREFORE INCUMBENT UPON ANY BIDDER WHO SEEKS TO INVOKE AN EXCEPTION TO PROVE THAT HE IS ENTIRELY WITHOUT FAULT OR NEGLIGENCE IN TRANSMITTING A LATE MODIFICATION TO HIS BID. AS INDICATED AT 35 COMP. GEN. 426, THE LATE BIDDER'S LACK OF KNOWLEDGE OF OTHER BIDS IS NOT ENOUGH. THE TELEGRAPHIC BID MODIFICATION MUST HAVE BEEN DEPOSITED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS, AND WHERE THERE IS SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE, THE BURDEN OF PROOF OF WHICH IS PLACED UPON THE BIDDER. UNDER THIS EXCEPTION IT IS NOT SUFFICIENT FOR A LATE BIDDER TO SHOW THAT HIS MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER OPTIMUM CONDITIONS. HE MUST SHOW THAT HIS MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL, OR FORESEEABLE DELAYS, AND THAT ITS FAILURE TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION.'

THE EVIDENCE SUBMITTED IN YOUR BEHALF TO SUSTAIN THE BURDEN OF PROOF, AS STATED ABOVE, WAS A LETTER DATED JUNE 19, 1969, FROM J. J. SUPLINA, MANAGER CUSTOMER SERVICE OF THE NEW YORK OFFICE OF WESTERN UNION, WHICH IS AS FOLLOWS:

"STEVEN LOVE, ESQ., ATTORNEY FOR RAY ADLER, INC. HAS DIRECTED OUR ATTENTION TO A TELEGRAM FILED WITH WESTERN UNION AT 1:30 PM EDT JUNE 12 IN STAMFORD, CONNECTICUT BY RAY ADLER, INC., ADDRESSED TO COMMANDER, THIRD COAST GUARD DISTRICT BUILDING 125 ROOM 320 AND MARKED -RX- -RUSH- -URGENT- AND -PHONE 264-4955-. A COPY OF THIS TELEGRAM AS RECEIVED IN NEW YORK IS ANNEXED HERETO.

"1. YOU HAVE INQUIRED AS TO THE NORMAL TRANSMISSION TIME OF SUCH A MESSAGE.

"WHILE THE OVERALL TRANSMISSION TIME OF ANY MESSAGE DEPENDS UPON THE TRAFFIC LOADS EXISTING AT THE TIME THROUGHOUT THE SYSTEM, WE TRUST THAT THE FOLLOWING WILL ANSWER YOUR INQUIRY.

"WESTERN UNION'S COMPANY STANDARDS STRIVE FOR THE TRANSMISSION OF ANY FULL RATE MESSAGE FROM THE POINT OF ORIGIN WITHIN 15 MINUTES AFTER FILING. THE MESSAGE IS STAMPED WITH THE TIME OF FILING (HERE 1:30 PM) AT THE POINT OF ORIGIN AFTER THE TRANSACTION IS CONCLUDED WITH THE PATRON. THE SUBSEQUENT HANDLING AT THE ORIGIN REQUIRES A DETERMINATION OF THE ROUTING OF THE MESSAGE, THE APPROPRIATE ROUTING SYMBOL FOR AUTOMATIC TRANSMISSION, THE PUNCHING OUT OF THE MESSAGE ON TAPE AND COMPARISON OF THE TAPE WITH THE ORIGINAL. THE MESSAGE IS THEN RELEASED AND TRANSMITTED. WESTERN UNION ENDEAVORS TO GIVE PRIORITY TO MESSAGES MARKED -RX- -RUSH- OR -URGENT- AND SUCH MESSAGES WILL BE HANDLED IN THE SHORTEST POSSIBLE TIME WHICH IS GENERALLY IMMEDIATELY AFTER FILING. AFTER RELEASE, THE TRANSMISSION BETWEEN STAMFORD AND NEW YORK IS AUTOMATIC AND ALMOST INSTANTANEOUS. AT NEW YORK, THE POINT OF DESTINATION, WESTERN UNION AGAIN ATTEMPTS TO GIVE IMMEDIATE HANDLING TO MESSAGES MARKED -RX- -URGENT- OR - RUSH- AND WHERE, AS IN THIS CASE, THE MESSAGE IS MARKED -PHONE- THE MESSAGE SHOULD BE PHONED WITHIN THE SHORTEST POSSIBLE TIME.

"2. YOU INQUIRE WHEN THE MESSAGE ARRIVED IN NEW YORK. OUR RECORDS DO NOT INDICATE THE PRECISE TIME THE MESSAGE ARRIVED IN NEW YORK BUT DO REVEAL THAT IT ARRIVED AT THE TELEX TRANSMITTING POSITION AT 4:58 PM. THIS INDICATES AN ABNORMAL DELAY BUT WE HAVE NOT BEEN ABLE TO DETERMINE THE POINT OF THIS ABNORMAL DELAY OR THE REASONS THEREFOR.

"3. YOU INQUIRE WHETHER THE MESSAGE WAS PHONED. THE MESSAGE WAS NOT PHONED. WE HAVE NOT BEEN ABLE TO DETERMINE THE OPERATOR WHO HANDLED THIS MESSAGE IN NEW YORK. WE SUSPECT THAT THE MESSAGE WAS NOT PHONED BECAUSE IT ARRIVED AT THE CLOSE OF THE NORMAL BUSINESS DAY AND WAS ACCORDINGLY SENT TO THE TELEX POSITION WHICH INSURED THAT THE MESSAGE WOULD BE DELIVERED IN WRITING AND RECEIPTED FOR.'

APPLYING THESE FACTUAL EXPLANATIONS, YOUR TELEGRAM WAS FILED 30 MINUTES PRIOR TO BID OPENING. THE MESSAGE WAS RECEIVED AT THE TELEX TRANSMITTING POSITION IN NEW YORK AND SENT TO THE COAST GUARD MESSAGE CENTER AT 4:58 P.M., E.S.T., OR 2 HOURS AND 48 MINUTES AFTER THE 2:00 P.M. BID OPENING. IT IS FURTHER INDICATED THAT AN "ABNORMAL" DELAY EXISTED; AND THAT UNDER NORMAL CONDITIONS YOUR MESSAGE WAS FILED EARLY ENOUGH TO HAVE ARRIVED BY 2:00 P.M. BUT THESE STATEMENTS DO NOT ESTABLISH THAT ANY DELIVERY BEYOND 2:00 P.M. WOULD HAVE BEEN ABNORMAL AND UNFORSEEABLE. IN OTHER WORDS, THE EVIDENCE SUBMITTED BY WESTERN UNION INDICATES THAT UNDER NORMAL TRANSMISSION PROCEDURE YOUR MESSAGE WOULD HAVE ARRIVED EARLIER THAN 4:58 P.M.; AND THAT IT COULD HAVE ARRIVED BY 2:00 P.M. HOWEVER, YOU HAVE FAILED TO ESTABLISH THAT YOUR TELEGRAM, WHICH WAS FILED ONLY 30 MINUTES PRIOR TO THE TIME OF BID OPENING, WAS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.

ACCORDINGLY, WE CONCLUDE THAT YOUR LATE TELEGRAPHIC BID MODIFICATION MAY NOT BE PROPERLY CONSIDERED AND YOUR PROTEST IS DENIED.