B-171103, APR 19, 1971

B-171103, APR 19, 1971

BID PROTEST - BID MODIFICATIONS DECISION DENYING PROTEST AGAINST CONTRACT AWARDED BY THE DEFENSE SURPLUS SALES OFFICE, NEWPORT, R.I., TO PROTESTANT, BASED UPON THE WAY TWO LATE TELEGRAPHIC BID MODIFICATIONS WERE HANDLED. ALTHOUGH MODIFICATIONS RECEIVED AFTER BID OPENING ARE NORMALLY NOT CONSIDERED, THE IFB PROVIDED THAT A MODIFICATION WHICH MAKES THE TERMS OF AN OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME PRIOR TO AWARD AND MAY BE ACCEPTED. THEREFORE, WHILE PROTESTANT'S MODIFICATION ATTEMPTING TO WITHDRAW A HIGH BID WAS NOT CONSIDERED BECAUSE IT WAS RECEIVED AFTER BID OPENING, THE CONTRACTING OFFICER PROPERLY CONSIDERED ANOTHER LATE MODIFICATION WHICH INCREASED PROTESTANT'S SUCCESSFUL HIGH ON ANOTHER ITEM BY $3,000. ACCORDINGLY, THE PROTEST IS DENIED.

TO THE EVEREADY MACHINERY COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 18, 1970, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD MADE TO YOU BY THE DEFENSE SURPLUS SALES OFFICE, NEWPORT, RHODE ISLAND, FOR ITEMS 12 AND 39 IN SALES CONTRACT NO. 16-1020-358.

BIDS WERE SOLICITED FOR NUMEROUS ITEMS OF MACHINE TOOLS AND SHOP EQUIPMENT UNDER INVITATION FOR BIDS (IFB) NO. 16-1020 WITH BID OPENING SET FOR 1:00 P.M., SEPTEMBER 24, 1970. YOUR COMPANY SUBMITTED A BID ON A NUMBER OF ITEMS, INCLUDING ITEMS 12, 38, 39 AND 104. ITEMS 12 AND 39 WERE AWARDED TO YOU AS THE HIGHEST BIDDER ON THESE ITEMS. YOUR PROTEST IS BASED UPON THE MANNER IN WHICH TWO LATE TELEGRAPHIC MODIFICATIONS TO YOUR BID WERE HANDLED BY THE NEWPORT SALES OFFICE. UNDER THE SALES INVITATION, TELEGRAPHIC BID MODIFICATIONS WERE SPECIFICALLY AUTHORIZED.

IN A TELEGRAM DISPATCHED FROM BRIDGEPORT, CONNECTICUT, AT 11:42 A.M. ON SEPTEMBER 24, 1970, YOU ATTEMPTED TO WITHDRAW THE BID ON ITEMS 38, 39 AND 104. IN A SEPARATE TELEGRAM DISPATCHED FROM THE SAME CITY 19 MINUTES LATER, YOU INCREASED THE BID ON ITEM 12 BY $3,000.

BIDS WERE OPENED AS SCHEDULED ON SEPTEMBER 24, 1970. AT THAT TIME, NEITHER OF THE TELEGRAPHIC MODIFICATIONS HAD BEEN RECEIVED BY THE SALES OFFICE. THEY WERE BOTH RECEIVED THE NEXT DAY, SEPTEMBER 25, 1970. APPARENTLY THERE WAS SOME DELAY BY WESTERN UNION IN TRANSMITTING THE TELEGRAMS, SINCE THE RECORD INDICATES THAT THE TELEGRAMS DID NOT ARRIVE AT THE WESTERN UNION OFFICE IN NEWPORT UNTIL AFTER THE SCHEDULED BID OPENING TIME.

THE SUBJECT INVITATION INCORPORATED CERTAIN TERMS AND CONDITIONS APPEARING IN THE SALE BY REFERENCE PAMPHLET. PERTINENT TO THIS PROTEST IS ARTICLE AC WHICH PROVIDED:

"CONSIDERATION OF LATE BIDS, MODIFICATIONS, OR WITHDRAWALS. BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF, MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ANY BID, MODIFICATION, OR WITHDRAWAL RECEIVED AFTER THE TIME SET FOR BID OPENING WILL NOT BE CONSIDERED UNLESS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO AWARD, WAS MAILED (OR TELEGRAPHED WHERE AUTHORIZED) AND IN FACT DELIVERED TO THE ADDRESS SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME AND DATE SET FORTH IN THE INVITATION FOR THE BID OPENING, AND, EXCEPT FOR DELAY ATTRIBUTABLE TO PERSONNEL OF THE SALES OFFICE OR THEIR DESIGNEES WOULD HAVE BEEN RECEIVED ON TIME. IN NO EVENT WILL HAND-CARRIED BIDS OR WITHDRAWALS BE CONSIDERED IF DELIVERED TO THE SALES CONTRACTING OFFICER AFTER THE EXACT TIME AND DATE SET FOR BID OPENING. HOWEVER, A MODIFICATION WHICH MAKES THE TERMS OF THE OTHERWISE SUCCESSFUL BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED PRIOR TO AWARD AND MAY BE ACCEPTED."

RELYING UPON THE LATE BID ARTICLE, THE CONTRACTING OFFICER DISREGARDED THE TELEGRAPHIC BID WITHDRAWAL, BUT CONSIDERED THE TELEGRAPHIC MODIFICATION MAKING THE SALE PRICE ON ITEM 12 MORE FAVORABLE TO THE GOVERNMENT. THE ORIGINAL BID ON ITEM 12 IN THE AMOUNT OF $23,199.99 WAS THE HIGHEST BID RECEIVED. THE EFFECT OF THE LATE TELEGRAPHIC MODIFICATION WAS TO INCREASE THAT SUCCESSFUL BID TO $26,199.99. FURTHER, SINCE THE LATE TELEGRAPHIC WITHDRAWAL WAS NOT CONSIDERED, YOUR BID ON ITEM 39 IN THE AMOUNT OF $399.99 REMAINED THE HIGHEST RECEIVED FOR THAT ITEM.

OUR OFFICE CONSIDERS THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER WAS PROPER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION. IN THAT REGARD, EVEN WHERE A LATE TELEGRAM CONTAINED SOME PRICE MODIFICATIONS WHICH WOULD BE CONSIDERED AS FAVORABLE TERMS FROM AN OTHERWISE SUCCESSFUL BIDDER ON SOME BID ITEMS AND OTHER PRICE MODIFICATIONS THAT WOULD NOT BE CONSIDERED AS FAVORABLE TERMS FROM AN OTHERWISE SUCCESSFUL BIDDER, OUR OFFICE HELD THAT IT WAS PROPER TO ACCEPT THE FORMER MODIFICATION ONLY. 40 COMP. GEN. 466 (1961).

IN VIEW OF THE ABOVE, THE PROTEST IS DENIED.