B-174541, APR 21, 1972

B-174541, APR 21, 1972

BID PROTEST - LATE BID MODIFICATIONS - ALLEGED GOVERNMENT MISHANDLING DECISION DENYING THE PROTEST OF A & G - LUNDGREN AND THE GHEMM COMPANY, INC., AGAINST THE REFUSAL TO CONSIDER LATE TELEGRAPHIC BID MODIFICATIONS SENT IN RESPONSE TO AN IFB ISSUED BY THE ALASKA DISTRICT CORPS OF ENGINEERS. THE RECORD FAILS TO SUPPORT PROTESTANTS' CONTENTION THAT THE LATE DELIVERY OF ITS BID MODIFICATIONS WAS DUE TO MISHANDLING BY THE GOVERNMENT. FURTHER, EVEN IF SUCH ASSUMPTION WERE ALLOWED, SINCE THE MISHANDLING DID NOT OCCUR AT THE GOVERNMENT INSTALLATION AS PROVIDED BY THE "INSTRUCTIONS TO BIDDERS" PART OF THE SOLICITATION, THE PROTEST MUST BE DENIED.

TO A&G - LUNDGREN:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 23, 1971, WITH ENCLOSURES, PROTESTING THE FAILURE TO CONSIDER TELEGRAPHIC BID MODIFICATIONS SENT BY YOUR JOINT VENTURE AND THE GHEMM COMPANY, INCORPORATED (GHEMM), IN RESPONSE TO INVITATION FOR BIDS (IFB) NO. DACA85- 72-B-0007, ISSUED AUGUST 20, 1971, BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, ALASKA DISTRICT.

ON SEPTEMBER 14, 1971, THE DATE OF BID OPENING, THE CONTRACTING OFFICER SENT A CARRIER TO THE RCA TELEGRAPHIC OFFICE IN DOWNTOWN ANCHORAGE TO PICK UP ANY TELEGRAMS SENT PRIOR TO BID OPENING. THE CARRIER LEFT THE TELEGRAPHIC OFFICE AT APPROXIMATELY 1:15 P.M. IN ORDER TO RETURN TO THE CONTRACT OFFICE IN TIME FOR THE 2:00 P.M. BID OPENING. THE TELEGRAPHIC BID MODIFICATIONS ARRIVED AT ANCHORAGE AT 1:18 P.M. (GHEMM) AND 1:48 P.M. (A&G - LUNDGREN), SEPTEMBER 14, 1971, AFTER THE CARRIER HAD LEFT THE TELEGRAPH OFFICE. THE BIDS WERE OPENED AS SCHEDULED AT 2:00 P.M. SEPTEMBER 14, 1971. THE RCA TELEGRAPH OFFICE DELIVERED THE TELEGRAMS AT 3:43 P.M., SEPTEMBER 14, 1971, BUT THEY WERE NOT ACCEPTED AS VALID BID MODIFICATIONS BY THE CONTRACT OFFICE BECAUSE OF THE LATE DELIVERY.

IN YOUR LETTER DATED DECEMBER 17, 1971, TO THE DISTRICT ENGINEER YOU ALLEGE THAT THE GOVERNMENT WAS NEGLIGENT IN FAILING TO PICK UP THESE TELEGRAPHIC BID MODIFICATIONS BECAUSE "THE GOVERNMENT HAS ACCEPTED RESPONSIBILITY FOR THE RECEIPT BY RCA IN ANCHORAGE AND THROUGH THEIR AGENT HAS ACCEPTED RESPONSIBILITY TO TRANSPORT THE TELEGRAM FROM RCA'S ANCHORAGE OFFICE TO THE CORPS OF ENGINEERS' OFFICE."

STANDARD FORM 22, "INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT)," A PART OF THE SOLICITATION READS IN PART AT PARAGRAPH 7 AS FOLLOWS:

"(A) 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: *** (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 *** ."

ALSO SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-303.4.

THE CONTRACTING OFFICER REPORTS THAT NO FORMAL OR INFORMAL ARRANGEMENTS WERE MADE WITH THE RCA TELEGRAM OFFICE TO ACCEPT RESPONSIBILITY FOR THE DELIVERY OF TELEGRAMS AND THAT NO CONTRARY INFORMATION WAS EVER GIVEN TO ANY CONTRACTOR.

UPON A REVIEW OF THE FACTS AS PRESENTED WE CANNOT CONCLUDE THAT THE RCA TELEGRAM OFFICE LOCATED IN ANCHORAGE, ALASKA, IS A GOVERNMENT INSTALLATION OR THAT THE GOVERNMENT UNDERTOOK THE RESPONSIBILITY FOR PICKING UP TELEGRAPHIC BID MODIFICATIONS. THE CLEAR LANGUAGE OF THE SOLICITATION QUOTED ABOVE PERMITS CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS ONLY WHERE THE LATE DELIVERY WAS DUE TO GOVERNMENT "MISHANDLING" AT A GOVERNMENT INSTALLATION. EVEN IF IT IS ASSUMED FOR PURPOSES OF ARGUMENT THAT THERE WAS MISHANDLING BY THE GOVERNMENT AND THE FACTS DO NOT SUPPORT SUCH AN ASSUMPTION, IT DID NOT OCCUR AT THE GOVERNMENT INSTALLATION.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED AND WE ARE RETURNING THE PAPERS YOU SUBMITTED TO THIS OFFICE.