B-168210, AUG. 26, 1970

B-168210: Aug 26, 1970

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UPHOLDING THE POSITION OF THE DEPARTMENT OF THE AIR FORCE THAT PROTESTANT'S TELEX BID MODIFICATION WAS NOT ACCEPTABLE FOR CONSIDERATION. TO SIMPSON ELECTRIC COMPANY: THIS IS IN REPLY TO LETTERS DATED JULY 25 AND 31. UPHOLDING THE POSITION OF THE DEPARTMENT OF THE AIR FORCE THAT YOUR TELEX BID MODIFICATION WAS NOT ACCEPTABLE FOR CONSIDERATION. YOUR ATTORNEYS ARGUE THAT SEVERAL FACTUAL FINDINGS STATED BY THE AIR FORCE ARE ERRONEOUS AND. ITS DECISION NOT TO ACCEPT YOUR BID MODIFICATION FOR CONSIDERATION IS ARBITRARY. IT IS SUBMITTED THAT. THE RECORD SHOWS THAT YOUR TELEX BID MODIFICATION WAS STAMPED AS RECEIVED AT THE COMMUNICATIONS CENTER. WAS PLACED IN ROUTINE MAIL DELIVERY CHANNELS IN ACCORDANCE WITH ESTABLISHED PROCEDURES AT THE BASE AND WAS RECEIVED AT THE DP&P ON THE DAY FOLLOWING THE BID OPENING AT 9:15 A.M.

B-168210, AUG. 26, 1970

BID PROTEST -- LATE BID MODIFICATION -- DECISION RECONSIDERATION REAFFIRMATION OF DECISION OF JULY 10, 1970, UPHOLDING THE POSITION OF THE DEPARTMENT OF THE AIR FORCE THAT PROTESTANT'S TELEX BID MODIFICATION WAS NOT ACCEPTABLE FOR CONSIDERATION. DISTINGUISHING SOUTHERN, WALDRIP AND HARVICK V U.S., 334 F. 2D 245 (1964).

TO SIMPSON ELECTRIC COMPANY:

THIS IS IN REPLY TO LETTERS DATED JULY 25 AND 31, 1970, FROM YOUR ATTORNEYS REQUESTING THAT WE RECONSIDER OUR DECISION B-168210 DATED JULY 10, 1970, UPHOLDING THE POSITION OF THE DEPARTMENT OF THE AIR FORCE THAT YOUR TELEX BID MODIFICATION WAS NOT ACCEPTABLE FOR CONSIDERATION.

BASICALLY, YOUR ATTORNEYS ARGUE THAT SEVERAL FACTUAL FINDINGS STATED BY THE AIR FORCE ARE ERRONEOUS AND, THEREFORE, ITS DECISION NOT TO ACCEPT YOUR BID MODIFICATION FOR CONSIDERATION IS ARBITRARY, CAPRICIOUS, AND UNSUBSTANTIATED. MOREOVER, IT IS SUBMITTED THAT, AS A MATTER OF LAW, THE GOVERNMENT MUST ACCEPT THE CONTRACTING OFFICER'S RECOMMENDATION IN FAVOR OF ACCEPTING YOUR LATE MODIFICATION BECAUSE OF MISHANDLING BY THE GOVERNMENT.

AS STATED IN OUR PRIOR DECISION, THE SUBJECT INVITATION, WHICH PERMITTED TELEGRAPHIC BID MODIFICATIONS, REQUIRED THAT THEY BE RECEIVED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION (DP&P), KELLY AIR FORCE BASE (KELLY AFB), BY THE TIME SET FOR BID OPENING, 1:30 P.M., CST, FEBRUARY 24, 1970. THE RECORD SHOWS THAT YOUR TELEX BID MODIFICATION WAS STAMPED AS RECEIVED AT THE COMMUNICATIONS CENTER, KELLY AFB AT 12:51 P.M., OR 39 MINUTES BEFORE THE TIME SET FOR SUBMISSION OF BIDS TO DP&P. THIS TELEX MODIFICATION, WHICH WOULD MAKE YOUR BID LOW IF CONSIDERED, WAS PLACED IN ROUTINE MAIL DELIVERY CHANNELS IN ACCORDANCE WITH ESTABLISHED PROCEDURES AT THE BASE AND WAS RECEIVED AT THE DP&P ON THE DAY FOLLOWING THE BID OPENING AT 9:15 A.M.

WE CONCLUDED IN OUR DECISION THAT YOUR TELEX MODIFICATION WAS NOT ACCEPTABLE FOR CONSIDERATION SINCE IT DID NOT APPEAR THAT IT WAS RECEIVED LATE AT THE DP&P SOLELY BECAUSE OF THE GOVERNMENT'S MISHANDLING, WHICH WAS THE CRITERION ESTABLISHED IN THE INSTRUCTIONS INCORPORATED IN THE INVITATION. IN VIEW OF THE LARGE NUMBER OF MESSAGES (1500) PROCESSED EACH DAY AT THE KELLY AFB COMMUNICATIONS OFFICE TOGETHER WITH THE SIGNIFICANCE ATTACHED BY THE AIR FORCE TO THE LACK OF ANY PRIORITY DESIGNATION ON THE FACE OF YOUR TELEX MESSAGE, WE FOUND SUFFICIENT EVIDENCE TO SUPPORT THE CONCLUSION BY THE AIR FORCE THAT SUCH A MESSAGE COULD NOT REASONABLY HAVE BEEN COMMUNICATED TO THE PROPER OFFICE WITHIN THE 39 MINUTES BETWEEN 12:51 P.M. AND 1:30 P.M.

IT IS YOUR POSITION THAT THE AIR FORCE HAS ERRONEOUSLY HELD YOU ACCOUNTABLE FOR KNOWINGLY CHOOSING THE TELEX NUMBER FOR THE COMMUNICATIONS OFFICE RATHER THAN THE NUMBER FOR DIRECT CONTACT WITH THE DP&P. YOU CONTEND THAT YOU NEITHER KNEW NOR COULD HAVE KNOWN OF ANY OTHER TELEX NUMBER SINCE AT THE TIME OF BID OPENING THE DIRECTORY SHOWING THE TELEX NUMBER FOR THE DP&P HAD NOT BEEN DISTRIBUTED.

AS STATED IN OUR DECISION, THE BASIC QUESTION WAS WHETHER YOUR BID MODIFICATION AS SENT COULD REASONABLY HAVE BEEN RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION WITHIN 39 MINUTES OF ITS RECEIPT AT THE COMMUNICATIONS CENTER. THE FACT THAT YOU DID NOT MAKE USE OF THE TELEX FACILITY LOCATED IN THE DP&P, FOR WHATEVER REASON, IS NOT RELEVANT TO THIS BASIC QUESTION AND EVEN THOUGH THE AIR FORCE ERRONEOUSLY IMPUTED KNOWLEDGE TO YOU OF THE TELEX FACILITY AT DP&P, SUCH ERROR COULD NOT HAVE AFFECTED THE DETERMINATION AS TO WHETHER THE MESSAGE AS SENT SHOULD HAVE BEEN RECEIVED AT DP&P WITHIN 39 MINUTES OF ITS RECEIPT AT THE COMMUNICATIONS CENTER.

YOUR ATTORNEYS ALSO ARGUE THAT YOU SHOULD NOT BE CHARGED WITH KNOWLEDGE OF THE PECULIAR PRACTICE AT KELLY AFB OF HANDLING TELEGRAPHIC MESSAGES AS ROUTINE MAIL, INASMUCH AS THE USAGE HAD NOT BEEN BROUGHT TO YOUR ATTENTION, BUT THAT YOU SHOULD BE PERMITTED TO RELY UPON THE USUAL CUSTOM AND PRACTICE IN BUSINESS OF HANDLING TELEGRAPHIC MESSAGES EXPEDITIOUSLY. COUNSEL SUBMITS THAT THE SIGNIFICANCE ATTACHED BY THE AIR FORCE TO THE LACK OF ANY PRIORITY DESIGNATION ON THE FACE OF YOUR TELEX MESSAGE IS CONTRARY TO THE GENERAL CUSTOM AND USAGE OF TELEGRAMS IN THE FIELD OF COMMERCE, AND THAT IT THEREFORE FOLLOWS THE AIR FORCE MISHANDLED YOUR MESSAGE.

IN OUR DECISION OF JULY 10 WE RECOGNIZED THAT IT MAY BE NECESSARY AT INSTALLATIONS RECEIVING HUNDREDS OF TELEGRAMS DAILY TO HANDLE THOSE TELEGRAMS WHICH ARE NOT MARKED URGENT IN A STANDARDIZED MANNER. IN SUCH CIRCUMSTANCES THEIR IMMEDIATE TRANSMISSION TO THE PROPER OFFICE MAY NOT BE FEASIBLE. IN VIEW THEREOF, WE FEEL THE LACK OF PRIORITY DESIGNATION ON YOUR TELEGRAM CONTRIBUTED TO THE MISHANDLING AND THE LATE RECEIPT IN THIS CASE.

WE HAVE NOTED THE ALTERNATIVES SUGGESTED BY YOUR COUNSEL BY WHICH TIMELY RECEIPT MIGHT HAVE BEEN EFFECTED, AND THE IMPLICATION THAT THE FAILURE TO FOLLOW ANY OF THESE ALTERNATIVES EVIDENCES MISHANDLING BY THE GOVERNMENT. IT HAS BEEN SUGGESTED THAT THE TELEX OPERATOR AT THE COMMUNICATIONS CENTER EITHER COULD HAVE TELEPHONED DP&P AND GIVEN ADVICE OF THE BID MODIFICATION RECEIVED OR COULD HAVE COMMUNICATED DIRECTLY WITH DP&P VIA TELEX. ALSO, COUNSEL NOTES THAT YOU PHONED THE GOVERNMENT TELEX OPERATOR SOMETIME AFTER YOUR TRANSMISSION OF THE MESSAGE; THAT YOU OBTAINED FROM HIM THE TIME APPEARING ON THE TIME STAMP PLACED ON YOUR MODIFICATION; AND THAT HE FAILED AT THAT TIME TO MENTION THE TELEX NUMBER FOR DP&P, OR ANY EXPECTED DELAY IN THE DELIVERY OF THE MESSAGE. THESE SUGGESTIONS AND CRITICISMS ARE BASED, HOWEVER, UPON THE PRESUMPTION THAT THE OPERATOR AT THE COMMUNICATIONS OFFICE WAS OR SHOULD HAVE BEEN AWARE OF THE NECESSITY FOR PRIORITY HANDLING OF THE PARTICULAR MESSAGE. SUCH A PRESUMPTION IS UNSUBSTANTIATED IN THE ABSENCE OF EITHER AN ESTABLISHED EXPEDITED PROCEDURE FOR HANDLING ALL TELEGRAPHIC MODIFICATIONS AT THAT OFFICE OR THE PLACEMENT OF A PRIORITY DESIGNATION (OR OTHER CLEAR AND TIMELY INDICATION OF URGENCY) ON THE FACE OF THE MODIFICATION.

COUNSEL ALSO CONTENDS THAT PRIOR TO BID OPENING THE CONTRACTING OFFICER SHOULD HAVE INQUIRED OF THE COMMUNICATIONS OFFICE WHETHER ANY TELEGRAPHIC BID MODIFICATIONS HAD BEEN RECEIVED, SINCE DURING THE COURSE OF A TELEPHONE CONVERSATION EARLIER IN THE DAY CONCERNING OTHER MATTERS YOUR REPRESENTATIVE ALSO INQUIRED OF THE CONTRACTING OFFICER WHETHER A TELEGRAPHIC MODIFICATION WOULD BE ACCEPTABLE FOR THE SUBJECT PROCUREMENT. IN THIS REGARD, WE ARE NOT CONVINCED THAT ON THE BASIS OF SUCH A CONVERSATION THE CONTRACTING OFFICER MAY BE CHARGED WITH ANY AFFIRMATIVE DUTY TO INSURE TIMELY RECEIPT OF THE TELEGRAPHIC MODIFICATION WHICH MIGHT BE SENT THEREAFTER, SO AS TO NULLIFY YOUR RESPONSIBILITY FOR ALLOWING SUFFICIENT TIME FOR DELIVERY TO THE OFFICE STATED IN THE INVITATION.

COUNSEL'S LETTER OF JULY 31 CITES THE DECISION OF THE COURT OF CLAIMS IN SOUTHERN, WALDRIP AND HARVICK V UNITED STATES, 334 F. 2D 245 (1964), FOR THE PROPOSITION THAT THE DETERMINATION REGARDING TIMELINESS OF TELEGRAPHIC BIDS IS TO REST WITH THE CONTRACTING OFFICER. SINCE THE CONTRACTING OFFICER IN THE PRESENT CASE BELIEVES THAT 39 MINUTES IS A REASONABLE TIME TO DELIVER A TELEGRAPHIC MODIFICATION FROM THE COMMUNICATIONS OFFICE TO DP&P, IT IS SUBMITTED BY COUNSEL THAT HIS DECISION MUST BE ACCEPTED IN ACCORDANCE WITH THE ABOVE CITED COURT DECISION.

IN THAT CASE THE COURT BASED ITS DECISION ON A PROVISION IN THE INSTRUCTIONS TO BIDDERS THAT THE DETERMINATION OF TIMELINESS OF TELEGRAPHIC BID MODIFICATIONS WOULD REST WITH THE OFFICER AWARDING THE CONTRACT. THIS PROVISION WAS CONSIDERED, IN EFFECT, AN AGREEMENT BETWEEN THE GOVERNMENT AND PROSPECTIVE CONTRACTORS, AND WAS THEREFORE REQUIRED TO BE STRICTLY OBSERVED. THE PRESENT CASE, HOWEVER, IS CLEARLY DISTINGUISHABLE, SINCE THERE WAS NO SIMILAR PROVISION IN THE INSTRUCTIONS TO BIDDERS.

UNDER THE CIRCUMSTANCES WE ARE UNABLE TO CONCLUDE THAT THE LATE RECEIPT OF YOUR TELEGRAPHIC MODIFICATION CAN BE ATTRIBUTED SOLELY TO THE GOVERNMENT'S MISHANDLING AND, THEREFORE, WE MUST AFFIRM OUR DECISION OF JULY 10 THAT YOUR LATE TELEX MODIFICATION WAS NOT FOR CONSIDERATION.