B-170247, AUG 5, 1970, 50 COMP GEN 76

B-170247: Aug 5, 1970

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WHICH ALTHOUGH TIMELY RECEIVED COULD NOT BE DELIVERED BEFORE THE OPENING OF BIDS AS THE TELEPHONE LINE TO THE PROCUREMENT OFFICE WAS BUSY. BOTH THE INVITATION PROVISIONS AND PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDE FOR CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION WHEN THE DELAY IS DUE TO GOVERNMENT MISHANDLING BUT PRECLUDE CONSIDERATION OF LATE TELEGRAPHIC BIDS OR MODIFICATION WHEN THE DELAY IS CAUSED BY THE TELEGRAPH COMPANY. IS ATTRIBUTABLE TO WESTERN UNION AND THE PRICE REDUCTION MAY NOT BE CONSIDERED. 1970: REFERENCE IS MADE TO LETTER AFSPPLA OF JULY 6. IS FOR CONSIDERATION IN DETERMINING THE LOW BID. HAVE PRESENTED STATEMENTS OF PROTEST TO THE CONTRACTING OFFICE.

B-170247, AUG 5, 1970, 50 COMP GEN 76

BIDS - LATE - TELEGRAPHIC MODIFICATIONS - DELAY DUE TO WESTERN UNION A BID REDUCTION RECEIVED AT A BASE EXCHANGE TELEGRAPH OFFICE OPERATED UNDER CONTRACT FOR WESTERN UNION, WHICH ALTHOUGH TIMELY RECEIVED COULD NOT BE DELIVERED BEFORE THE OPENING OF BIDS AS THE TELEPHONE LINE TO THE PROCUREMENT OFFICE WAS BUSY, MAY NOT BE CONSIDERED IN DETERMINING THE LOW BID. BOTH THE INVITATION PROVISIONS AND PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDE FOR CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION WHEN THE DELAY IS DUE TO GOVERNMENT MISHANDLING BUT PRECLUDE CONSIDERATION OF LATE TELEGRAPHIC BIDS OR MODIFICATION WHEN THE DELAY IS CAUSED BY THE TELEGRAPH COMPANY, AND UNDER THE CONTRACT, THE POST EXCHANGE, AN INSTRUMENTALITY OF THE UNITED STATES FOR SOME PURPOSES, AND ITS EMPLOYEES ACT AS AN AGENT OF WESTERN UNION, AND THE DELAY, THEREFORE, IS ATTRIBUTABLE TO WESTERN UNION AND THE PRICE REDUCTION MAY NOT BE CONSIDERED.

TO THE SECRETARY OF THE AIR FORCE, AUGUST 5, 1970:

REFERENCE IS MADE TO LETTER AFSPPLA OF JULY 6, 1970, FROM THE CHIEF, CONTRACT PLACEMENT DIVISION, DIRECTORATE OF PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, REQUESTING A DECISION WHETHER THE LATE TELEGRAPHIC BID MODIFICATION RECEIVED FROM J. R. YOUNGDALE CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS NO. F26600-70-B-0064, ISSUED BY THE BASE PROCUREMENT DIVISION, NELLIS AIR FORCE BASE, NEVADA, IS FOR CONSIDERATION IN DETERMINING THE LOW BID.

BOTH YOUNGDALE AND LONGLEY CONSTRUCTION CO., INC., THE OTHERWISE LOW BIDDER, HAVE PRESENTED STATEMENTS OF PROTEST TO THE CONTRACTING OFFICE. YOUNGDALE HAS CONTENDED THAT THE LATE TELEGRAPHIC BID MODIFICATION SHOULD BE CONSIDERED AND LONGLEY THAT IT SHOULD NOT.

THE INVITATION FOR BIDS SCHEDULED THE BID OPENING FOR 3:30 P.M., MAY 4, 1970. THE THREE BIDS OPENED AT THAT TIME WERE AS FOLLOWS:

J. R. YOUNGDALE CONSTRUCTION CO. $200,000

LONGLEY CONSTRUCTION CO., INC. 194,498

M.M.C., INC. 194,500

AFTER THE BID OPENING, A YOUNGDALE REPRESENTATIVE INQUIRED BY TELEPHONE AS TO THE BIDS RECEIVED. AFTER BEING ADVISED OF THE AMOUNT OF THE YOUNGDALE BID AND THE OTHER BIDS, HE RESPONDED THAT HIS COMPANY HAD SENT A WIRE AT 12:05 P.M. REDUCING THE BID TO $189,766. LATER THE SAME DAY, THIS WAS CONFIRMED BY TELEPHONE BY MR. YOUNGDALE. IN VIEW OF THE REPRESENTATIONS MADE, THE NELLIS AIR FORCE EXCHANGE ANNEX WHICH OPERATES A WESTERN UNION STATION WAS CONTACTED AND IT ADVISED THAT THE TELEGRAM HAD BEEN RECEIVED. ARRANGEMENTS WERE MADE FOR THE TELEGRAM TO BE PICKED UP THE NEXT MORNING.

AN INVESTIGATION WAS MADE OF THE CIRCUMSTANCES SURROUNDING THE LATE RECEIPT OF THE TELEGRAM BY THE BASE PROCUREMENT OFFICE. THE INVESTIGATION DISCLOSED THAT THE TELEGRAM ARRIVED IN THE BASE EXCHANGE TELEGRAPH OFFICE AT 12:35 P.M. ON MAY 4, 1970, WHICH WAS ALMOST 3 HOURS BEFORE THE BID OPENING. WITHIN ABOUT THE NEXT 3 HOURS AND 10 MINUTES THE BASE EXCHANGE EMPLOYEE WHO RECEIVED THE TELEGRAM FROM THE TELEGRAPHIC EQUIPMENT ATTEMPTED TO NOTIFY THE PROCUREMENT OFFICE TWICE AND THAT EMPLOYEE'S ASSISTANT ATTEMPTED IT ONCE, BUT THE PROCUREMENT OFFICE TELEPHONE LINE WAS BUSY ON EACH OCCASION AND THEY WERE UNSUCCESSFUL IN REACHING THAT OFFICE. IN THAT CONNECTION, IT IS DISCLOSED THAT THE BASE EXCHANGE TELEGRAPH OFFICE SHARES A SINGLE TELEPHONE WITH THREE OTHER BUSY OFFICES SO THE TELEPHONE IS NOT ALWAYS AVAILABLE AND THAT THE TELEPHONE AT THE PROCUREMENT OFFICE IS A 3-LINE ROTARY, BUT ALL THREE LINES ARE OFTEN IN USE.

THE NELLIS AIR FORCE BASE EXCHANGE HAS A CONTRACT WITH WESTERN UNION TO OPERATE WITH EXCHANGE PERSONNEL A TELEGRAPH OFFICE AT THE BASE EXCHANGE ANNEX AS AN AGENT OF WESTERN UNION. IN OPERATING THE TELEGRAPH OFFICE THE EXCHANGE FOLLOWS THE SAME PROCEDURE AS WESTERN UNION IN FURNISHING TELEPHONIC NOTICE OF THE RECEIPT OF TELEGRAPHIC MESSAGES. THIS IS AS AGREED BETWEEN WESTERN UNION AND THE EXCHANGE. UNDER THE PROCEDURE, AFTER THE TELEGRAPHIC OFFICE RECEIVES A TELEGRAPHIC MESSAGE, AN ATTEMPT IS MADE TO NOTIFY THE ADDRESSEE BY TELEPHONE OF THE CONTENTS. IF UNSUCCESSFUL, REPEATED ATTEMPTS ARE MADE THROUGHOUT THE DAY. IF CONTACT IS NOT MADE BY THE END OF THE DAY THE WRITTEN TELEGRAM IS PLACED IN THE BASE DISTRIBUTION SYSTEM.

THE INVITATION FOR BIDS INCLUDED STANDARD FORM 22, "INSTRUCTIONS TO BIDDERS." ARTICLE 5(D) OF THE "INSTRUCTIONS TO BIDDERS" PROVIDED:

MODIFICATIONS OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS BY THE TIME SET FOR OPENING OF BIDS. TELEGRAPHIC MODIFICATIONS WILL BE CONSIDERED, BUT SHOULD NOT REVEAL THE AMOUNT OF THE ORIGINAL OR REVISED BID.

IN ADDITION, ARTICLE 7(A) OF THE "INSTRUCTIONS TO BIDDERS," AS REVISED BY CERTAIN DELETIONS PROVIDED IN ARTICLE 28 OF THE ADDITIONAL INSTRUCTIONS, INDICATED IN THE FOLLOWING QUOTATION OF ARTICLE 7(A) BY DASHES TYPED OVER THE DELETED WORDS, PROVIDED:

BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS 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 BIDDER 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. ***

THE DELETIONS MADE PARAGRAPH (A) CONFORM SUBSTANTIALLY TO THE PARAGRAPH PROVIDED FOR USE BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-306.

THE FOLLOWING SECTIONS OF ASPR ALSO ARE PERTINENT:

2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF IT IS RECEIVED BEFORE AWARD AND, (I) IF SUBMITTED BY MAIL, THE CIRCUMSTANCES OUTLINED IN 2-303.3 ARE APPLICABLE; OR (II) IF SUBMITTED BY TELEGRAM (WHERE AUTHORIZED), THE CIRCUMSTANCES SET FORTH IN 2-303.4 ARE APPLICABLE.

2-303.3 MAILED BIDS.

(A) CIRCUMSTANCES PERMITTING CONSIDERATION FOR AWARD OF A LATE MAILED BID. A LATE MAILED BID RECEIVED BEFORE AWARD MAY BE CONSIDERED FOR AWARD ONLY IF:

(II) 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.

2-303.4 TELEGRAPHIC BIDS. A LATE TELEGRAPHIC BID 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 2 303.3(A)(II)).

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. ***

2-305 LATE MODIFICATIONS AND WITHDRAWALS. MODIFICATIONS OF BIDS AND REQUESTS FOR WITHDRAWAL OF BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE MODIFICATIONS" AND "LATE WITHDRAWALS," RESPECTIVELY. A LATE MODIFICATION OR LATE WITHDRAWAL SHALL BE SUBJECT TO THE RULES AND PROCEDURES APPLICABLE TO LATE BIDS SET FORTH IN 2-303. ***

ARTICLE 7(A) OF THE "INSTRUCTIONS TO BIDDERS" PROVIDES FOR APPLICATION OF CERTAIN PORTIONS OF THE LATE BID PROVISIONS TO TELEGRAPHIC BIDS, MODIFICATIONS, OR WITHDRAWALS WHEN TELEGRAMS ARE AUTHORIZED FOR USE. THIS IS CONSISTENT WITH ASPR 2-303.2, PROVIDING FOR CONSIDERATION OF LATE TELEGRAPHIC BIDS WHEN TELEGRAMS ARE AUTHORIZED, AND ASPR 2-305, PROVIDING THAT THE LATE BID PROVISIONS ARE APPLICABLE TO LATE BID MODIFICATIONS. MODIFICATIONS OF BIDS BY TELEGRAM ARE AUTHORIZED BOTH BY ARTICLE 5(D) OF THE "INSTRUCTIONS TO BIDDERS" AND ASPR 2-304. SEE B159596, NOVEMBER 18, 1966, UPHOLDING THE APPLICATION OF LATE BID PROVISIONS TO TELEGRAPHIC BID MODIFICATIONS DESPITE THE CONTENTION THAT INVITATION LANGUAGE SIMILAR TO THAT USED IN THE IMMEDIATE CASE LIMITED CONSIDERATION OF TELEGRAPHIC MODIFICATIONS TO THOSE RECEIVED AT THE DESIGNATED OFFICE BY THE BID OPENING TIME.

THE ABOVE REGULATIONS AND ARTICLES READ TOGETHER ARE INTERPRETED BY US AS PROVIDING THAT A LATE TELEGRAPHIC BID MODIFICATION IS FOR CONSIDERATION WHEN THE TELEGRAPHIC MODIFICATION ARRIVES AT THE GOVERNMENT INSTALLATION BEFORE BID OPENING AND THE FAILURE TO ARRIVE ON TIME AT THE OFFICE DESIGNATED IN THE INVITATION IS DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT IN ITS TRANSMITTAL TO THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS. IN THAT REGARD, ASPR 2-303 PRECLUDES CONSIDERATION OF LATE TELEGRAPHIC BIDS OR MODIFICATIONS WHEN THE DELAY IS CAUSED BY THE TELEGRAPH COMPANY.

IN VIEW OF THE FOREGOING, THE BASIC QUESTION IS WHETHER THE LATE DELIVERY OF THE TELEGRAM WAS ATTRIBUTABLE TO DELAY BY WESTERN UNION OR TO MISHANDLING "ON THE PART OF THE GOVERNMENT." WE RECOGNIZE THAT POST EXCHANGES AND NONAPPROPRIATED FUND ACTIVITIES HAVE BEEN HELD TO BE INSTRUMENTALITIES OF THE UNITED STATES FOR SOME PURPOSES (STANDARD OIL COMPANY OF CALIFORNIA V JOHNSON, TREASURER OF CALIFORNIA, 316 U.S. 481 (1942); UNITED STATES V HOLCOMBE, 277 F. 2D 143 (1960); ELM SPRING FARM, INC. ET AL. V UNITED STATES, 127 F. 2D 920 (1942); UNITED STATES V HOWELL, 318 F. 2D 162 (1963)) BUT WE DO NOT BELIEVE THAT THE PRINCIPLE OF THOSE DECISIONS IS APPLICABLE HERE. THE CONTRACT BETWEEN THE WESTERN UNION TELEGRAPH COMPANY AND THE NELLIS AIR FORCE BASE EXCHANGE STIPULATES THAT THE AGREEMENT STEMMED FROM WESTERN UNION'S DESIRE TO FURNISH THE NECESSARY SERVICES IN CONNECTION WITH TELEGRAMS, ETC. ALSO, IT IS SPECIFICALLY PROVIDED IN THE CONTRACT THAT THE EXCHANGE IS TO "ACT AS THE AGENT" FOR WESTERN UNION AT THE BASE, AND WE THINK IT REASONABLY FOLLOWS THAT EXCHANGE EMPLOYEES LIKEWISE ARE AGENTS OF WESTERN UNION. FOR THESE REASONS WE THINK THAT THE TELEGRAPH OFFICE IN QUESTION IS A WESTERN UNION OFFICE NOTWITHSTANDING ITS LOCATION IN A BASE EXCHANGE AND ITS OPERATION BY EXCHANGE EMPLOYEES.

IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE DELAY WAS ATTRIBUTABLE TO THE TELEGRAPH COMPANY AND THEREFORE THE LATE TELEGRAPHIC BID MODIFICATION RECEIVED FROM J. R. YOUNGDALE CONSTRUCTION COMPANY SHOULD NOT BE CONSIDERED.