B-167746, SEP. 24, 1969

B-167746: Sep 24, 1969

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A TELEGRAPHIC BID MODIFICATION WHICH WAS RECEIVED AT THE MESSAGE BRANCH OF THE INSTALLATION AT PRECISE TIME OF BID OPENING BUT WHICH WAS NOT RECEIVED IN BID OPENING OFFICE UNTIL 55 MINUTES LATER WAS PROPERLY REJECTED SINCE THERE IS NO EVIDENCE THAT MISHANDLING BY GOVERNMENT PERSONNEL CAUSED DELAY AND PROCEDURES FOR TRANSMISSION OF TELEGRAPHIC BID MODIFICATIONS APPEAR CALCULATED TO EFFECT DELIVERY AT INSTALLATION IN EXPEDITIOUS MANNER. TO INTERSTATE MANUFACTURING CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. WHEN BIDS WERE OPENED AT THE SCHEDULED TIME IT WAS DETERMINED THAT YOUR BID WAS NOT LOW. A TELEGRAPHIC MODIFICATION OF YOUR BID WAS RECEIVED AT 10 A.M. THE COMPOUND IN WHICH DISC IS PHYSICALLY LOCATED.

B-167746, SEP. 24, 1969

BID PROTEST - LATE TELEGRAPHIC BID MODIFICATIONS DECISION TO INTERSTATE MANUFACTURING CORPORATION DENYING PROTEST AGAINST REJECTION OF LOW BID FOR FURNISHING NYLON CARGO SHIPS UNDER INVITATION FOR BIDS ISSUED BY DEFENSE INDUSTRIAL SUPPLY CENTER BECAUSE LATE TELEGRAPHIC BID MODIFICATION COULD NOT BE CONSIDERED. A TELEGRAPHIC BID MODIFICATION WHICH WAS RECEIVED AT THE MESSAGE BRANCH OF THE INSTALLATION AT PRECISE TIME OF BID OPENING BUT WHICH WAS NOT RECEIVED IN BID OPENING OFFICE UNTIL 55 MINUTES LATER WAS PROPERLY REJECTED SINCE THERE IS NO EVIDENCE THAT MISHANDLING BY GOVERNMENT PERSONNEL CAUSED DELAY AND PROCEDURES FOR TRANSMISSION OF TELEGRAPHIC BID MODIFICATIONS APPEAR CALCULATED TO EFFECT DELIVERY AT INSTALLATION IN EXPEDITIOUS MANNER.

TO INTERSTATE MANUFACTURING CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1969, PROTESTING AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DSA 500-70-B -0221, ISSUED BY THE DEFENSE SUPPLY AGENCY ON JULY 14, 1969, FOR THE PROCUREMENT OF 2,200 EACH SLING, CARGO, NET, NYLON WEBBING, FSN 3940-892- 4375. THE IFB PROVIDED THAT BIDS WOULD BE RECEIVED AT THE BID OPENING ROOM, BUILDING NO. 36, OF THE DEFENSE INDUSTRIAL SUPPLY CENTER (DISC), 700 ROBBINS AVENUE, PHILADELPHIA, PENNSYLVANIA 19111, ATTENTION: DISC 7611, UNTIL 10 A.M., JULY 29, 1969. WHEN BIDS WERE OPENED AT THE SCHEDULED TIME IT WAS DETERMINED THAT YOUR BID WAS NOT LOW; HOWEVER, A TELEGRAPHIC MODIFICATION OF YOUR BID WAS RECEIVED AT 10 A.M., JULY 29, 1969, IN THE MESSAGE BRANCH OF THE NAVAL PUBLICATIONS AND FORMS CENTER (NPFC), THE COMPOUND IN WHICH DISC IS PHYSICALLY LOCATED, AND WAS RECORDED AS RECEIVED IN THE BID OPENING ROOM AT 10:55 A.M. OF THE SAME DAY. THIS MODIFICATION, IF PROPER FOR CONSIDERATION, WOULD MAKE YOUR OFFER THE LOWEST ONE SUBMITTED. IN REGARD TO TELEGRAPHIC MODIFICATIONS THE IFB SET FORTH THE FOLLOWING PERTINENT PROVISIONS:

1. PARAGRAPH 26 (C), ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS, DISC FORM 877:

"TELEGRAPHIC MODIFICATIONS, AND, IF AUTHORIZED, TELEGRAPHIC OFFERS, SHOULD BE DISPATCHED IN SUFFICIENT TIME TO BE RECEIVED AT THE NAVAL PUBLICATIONS AND FORMS CENTER (NPFC) MESSAGE BRANCH, WHICH MESSAGE BRANCH SERVICES DEFENSE INDUSTRIAL SUPPLY CENTER (DISC), AT LEAST ONE HOUR BEFORE THE DEADLINE SPECIFIED IN THE SOLICITATION FOR RECEIPT OF OFFERS IN ORDER TO ALLOW TIME FOR RETRANSMISSION TO THE BID ROOM OF DISC. (NPFC WESTERN UNION TELEX NO. 834295) NOTE: TELEGRAPHIC OFFERS ON ANY SOLICITATION WILL NOT BE CONSIDERED UNLESS OTHERWISE AUTHORIZED BY THE SOLICITATION.'

2. SOLICITATION INSTRUCTIONS AND CONDITIONS NO. 8 (A), LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS, AS MODIFIED BY PARAGRAPH 2 OF CLAUSE 7- 105.1, PAGE 20 OF THE IFB:

"/A) OFFERS AND MODIFICATIONS OF OFFERS (OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED) IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT. HOWEVER, A MODIFICATION OF AN OFFER WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL OFFER MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

PROCURING ACTIVITY PERSONNEL DETERMINED THAT YOUR MODIFICATION COULD NOT BE CONSIDERED UNDER THE ABOVE QUOTED PROVISIONS BECAUSE THERE WAS NO EVIDENCE THAT THE DELAYED RECEIPT OF YOUR TELEGRAPHIC MODIFICATION AT THE BID OPENING ROOM WAS CAUSED BY GOVERNMENT MISHANDLING AFTER ITS RECEIPT AT NPFC. THIS CONCLUSION WAS BASED ON AN EVALUATION OF THE TIME STAMPS APPEARING ON THE FACE OF THE TELEGRAM, WHICH ESTABLISHED THAT YOUR TELEGRAM WAS NOT RECEIVED AT NPFC UNTIL 10 A.M. ON JULY 29, THEREBY PRECLUDING THE POSSIBILITY THAT IT COULD HAVE BEEN FORWARDED TO DISC BY THE TIME SCHEDULED FOR OPENING OF BIDS. SINCE THE IFB EXCLUDED CONSIDERATION OF ANY OTHER CAUSES FOR THE DELAYED RECEIPT OF YOUR TELEGRAM, YOU WERE ADVISED BY THE PROCURING ACTIVITY IN A LETTER DATED JULY 30, 1969, THAT YOUR TELEGRAPHIC MODIFICATION COULD NOT BE CONSIDERED. THIS LETTER ERROEOUSLY STATED THAT YOUR TELEGRAM WAS RECEIVED AT NPFC AT 9:11 A.M. ON JULY 29, 1969. THE PROCURING ACTIVITY HAS ADVISED US THAT THE PREPARER OF THE LETTER APPARENTLY COPIED THIS TIME FROM THE FIRST LINE OF THE WIRE MESSAGE, AND THAT THE TIME ACTUALLY REFERS TO THE HOUR THE WIRE WAS PLACED ON THE MACHINE IN THE PHILADELPHIA OFFICE OF THE WESTERN UNION TELEGRAPHIC COMPANY FOR DIRECT TRANSMISSION OVER THE NPFC TIE LINE.

YOU MAINTAIN THAT PARAGRAPH 26 (C) OF THE ADDITIONAL SOLICITATION INSTRUCTIONS, QUOTED ABOVE, IS INCONSISTENT WITH THE PROVISIONS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION 2-304 (A), QUOTED BELOW, AND THAT YOUR TELEGRAPHIC MODIFICATION SHOULD BE CONSIDERED FOR BID EVALUATION PURPOSES UNDER A PROPER INTERPRETATION OF THAT REGULATION:

"2-304 MODIFICATION OR WITHDRAWAL OF BIDS.

"/A) BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE SUBMITTED SO AS TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. TELEGRAPHIC MODIFICATION OR WITHDRAWAL OF A BID RECEIVED IN SUCH OFFICE BY TELEPHONE FROM THE RECEIVING TELEGRAPH OFFICE NOT LATER THAN THE TIME SET FOR OPEINING OF BIDS SHALL BE CONSIDERED IF SUCH MESSAGE IS CONFIRMED BY THE TELEGRAPH COMPANY BY SENDING A COPY OF THE TELEGRAM WHICH FORMED THE BASIS FOR THE TELEPHONE CALL. MODIFICATIONS RECEIVED BY TELEGRAM INCLUDING A RECORD OF THOSE TELEPHONED BY THE TELEGRAPH COMPANY SHALL BE SEALED IN AN ENVELOPE BY A PROPER OFFICIAL WHO SHALL WRITE THEREON THE DATE AND TIME OF RECEIPT AND BY WHOM, THE INVITATION FOR BID NUMBER, AND HIS SIGNATURE. NO INFORMATION CONTAINED HEREIN SHALL BE DISCLOSED PRIOR TO THE TIME SET FOR BID OPENING. SEE 2 401 FOR RECEIPT AND SAFEGUARDING OF MODIFICATIONS.' THE UNDERLINED PORTION OF THE CITED REGULATION CLEARLY PERMITS ANY PROCURING ACTIVITY TO DESIGNATE A PARTICULAR OFFICE FOR RECEIPT OF BIDS, AS IS SET FORTH IN PARAGRAPH 26 (C) OF THE ADDITIONAL SOLICITATION INSTRUCTIONS AND IN BLOCK 9, PAGE ONE OF THE IFB. WE ARE THEREFORE UNABLE TO CONCLUDE THAT THE LISTING OF THE BID OPENING ROOM OF DISC, DESIGNATED BY CODE DISC 7611, ON PAGE 1, BLOCK 8 OF THE IFB, AS THE FACILITY WHERE BIDS WERE TO BE TIMELY RECEIVED WAS IMPROPER. THE FURTHER ADVICE TO BIDDERS CONTAINED IN PARAGRAPH 26 (C) IN REGARD TO THE TIME NEEDED FOR TRANSMISSION OF OFFERS FROM NPFC TO THE BID OPENING ROOM WOULD APPEAR TO CONSTITUTE AN ADEQUATE WARNING OF THE DELAY ATTENDING SUCH TRANSFER, AND CANNOT BE VIEWED AS CONFLICTING WITH THE ABOVE CITED REGULATION.

WE HAVE CONSTRUED THE PROVISIONS OF SOLICITATION INSTRUCTIONS NO. 8 (A), LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS, AS AUTHORIZING THE CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS OR BIDS WHICH ARRIVED AT AN 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 DID NOT REACH THE DESIGNATED BID OPENING OFFICE UNTIL AFTER BID OPENING. 46 COMP. GEN. 771; 43 ID. 317. SINCE THERE IS NO EVIDENCE THAT MISHANDLING BY GOVERNMENT PERSONNEL CAUSED THE DELAYED RECEIPT OF YOUR MODIFICATION AT THE BID OPENING ROOM, AND AS THE PROCEDURES ESTABLISHED FOR TRANSMITTING TELEGRAPHIC BID MODIFICATIONS FROM NPFC TO DISC APPEAR REASONABLY CALCULATED TO EFFECT SUCH DELIVERY IN AN EXPEDITED MANNER, WE CANNOT CONSIDER THE REJECTION OF YOUR TELEGRAPHIC MODIFICATION AS IMPROPER.