B-174528, JAN 12, 1972

B-174528, JAN 12, 1972

BID PROTEST - LATE TELEGRAPHIC MODIFICATION DECISION DENYING PROTEST OF ALLEN'S OF FLORIDA, INC., AGAINST AWARD TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY HOMESTEAD AFB, FLA., FOR REPAIR TO AN OVERHEAD PRIMARY DISTRIBUTION LINE. A TELEGRAPHIC MODIFICATION OF PROTESTANT'S BID WAS RECEIVED AFTER BIDS WERE PUBLICLY OPENED AT THE APPOINTED TIME. ARTICLE 7(A) OF STANDARD FORM 22, AS WELL AS PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATIONS, PRECLUDE CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS WHERE THE DELAY WAS NOT DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AT THE RECEIVING STATION. THE COMP. GEN. HAS CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR LATE BID MODIFICATIONS MUST BE BORNE BY THE BIDDER. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO ALLEN'S OF FLORIDA, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1971, PROTESTING AN AWARD OF A CONTRACT TO ANY OTHER BIDDER ON THE BASIS OF THE BIDS RECEIVED IN RESPONSE TO INVITATION FOR BIDS NO. F08621-72-B 0019, ISSUED BY HOMESTEAD AIR FORCE BASE, FLORIDA, FOR REPAIR TO THE OVERHEAD PRIMARY DISTRIBUTION LINE AT THE BASE.

THE FOUR BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE PUBLICLY OPENED AT THE APPOINTED TIME, 3:30 P.M. EASTERN TIME, ON NOVEMBER 4, 1971. YOUR BID WAS THE HIGHEST OF THE FOUR. SUBSEQUENTLY, AT APPROXIMATELY 3:45 P.M. A TELEPHONE CALL WAS RECEIVED FROM THE WESTERN UNION OFFICE, HOMESTEAD, FLORIDA, GIVING NOTICE OF A TELEGRAPHIC MODIFICATION OF YOUR BID. THE MODIFICATION, IF PROPER FOR CONSIDERATION, WOULD MAKE YOUR BID THE LOWEST.

BY LETTER DATED NOVEMBER 5, 1971, THE CONTRACTING OFFICER ADVISED YOU OF THE LATE RECEIPT OF THE TELEGRAPHIC MODIFICATION AND THAT UNDER THE CIRCUMSTANCES IT COULD NOT BE CONSIDERED. IT WAS STATED THAT INFORMATION RECEIVED FROM WESTERN UNION INDICATED THAT THE TELEGRAM WAS DISPATCHED FROM MELBOURNE, FLORIDA, AT 11:48 A.M. ON NOVEMBER 4, 1971, RECEIVED IN THE HOMESTEAD WESTERN UNION OFFICE AT 1:35 P.M. AND TELEPHONED TO THE HOMESTEAD AFB PROCUREMENT OFFICE AT 3:45 P.M.

IN YOUR LETTER OF NOVEMBER 9, 1971, PROTESTING THE ACTION PROPOSED BY THE CONTRACTING OFFICER, IT WAS STATED THAT YOU WERE INVESTIGATING THE CAUSE OF THE DELAY IN THE TELEGRAPHIC MODIFICATION REACHING THE HOMESTEAD AFB PROCUREMENT OFFICE. WE HAVE NOT HEARD ANYTHING FURTHER FROM YOU.

THE INVITATION FOR BIDS INCLUDED STANDARD FORM 22, "INSTRUCTIONS TO BIDDERS." ARTICLES 5(D) IN THE STANDARD FORM AND 7(A) AS AMENDED BY CONTINUATION SHEET RELATE IN PERTINENT PART TO BID MODIFICATIONS AND CONFORM SUBSTANTIALLY TO THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IN SUM, ARTICLE 7(A) AND ASPR 2-303.4 AND ASPR 2-305 PRECLUDE CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS UNLESS RECEIVED PRIOR TO AWARD AND DELAY WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AT THE RECEIVING INSTALLATION. UNDER ASPR 2-304(A) A TELEPHONED TELEGRAPHIC MODIFICATION WILL BE CONSIDERED ONLY IF TELEPHONED BY THE RECEIVING TELEGRAPH OFFICE TO THE BID RECEIVING OFFICE PRIOR TO THE EXACT TIME SET FOR BID OPENING.

THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT THE BIDDERS MUST BEAR THE RESPONSIBILITY OF THE LATE ARRIVAL OF A BID OR A MODIFICATION THEREOF. 46 COMP. GEN. 13 (1966); 50 COMP. GEN. 76. IN THE INSTANT CASE THE INVITATION CONTAINED THE NOTICE PRESCRIBED BY ASPR THAT A TELEGRAPHIC MODIFICATION RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE TIME SET FOR THE OPENING OF THE BIDS WOULD NOT BE CONSIDERED UNLESS IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. SINCE THE RECORD INDICATES THAT NOTICE OF THE TELEGRAPHIC MODIFICATION WAS NOT RECEIVED FROM WESTERN UNION UNTIL 3:45 P.M., OR AFTER THE OPENING OF THE BIDS, THERE IS NO QUESTION OF MISHANDLING BY THE GOVERNMENT. THEREFORE, IN ACCORDANCE WITH THE TERMS OF THE INVITATION FOR BIDS AND ASPR THERE IS NO BASIS FOR CONSIDERATION OF THE LATE TELEGRAPHIC MODIFICATION OF YOUR BID.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ACTION PROPOSED BY THE CONTRACTING OFFICER AND YOUR PROTEST MUST BE DENIED.