B-181862, OCT 22, 1974

B-181862: Oct 22, 1974

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LATE TELEGRAPHIC MODIFICATION MAY NOT BE CONSIDERED FOR AWARD WHERE TIME INTERVAL BETWEEN RECEIPT AT AGENCY COMMUNICATIONS CENTER AND RETRANSMITTAL TO BID ROOM BUILDING NOT SO GREAT UNDER EXISTING PROCEDURES AND CIRCUMSTANCES AS TO ESTABLISH THAT LATE DELIVERY WAS ATTRIBUTABLE SOLELY TO MISHANDLING BY AGENCY AFTER RECEIPT. STACK-ON PRODUCTS COMPANY ONTARIOVILLE METAL PRODUCTS: INVITATION FOR BIDS (IFB) FPWP-C2-55282-A-6-24-74 WAS ISSUED MAY 23. WHICHEVER IS LATER. BIDS WERE OPENED JULY 8. THE LOCATION TO WHICH BIDDERS WERE INSTRUCTED BY THE IFB TO ADDRESS THEIR BIDS. AT ISSUE IS THE ELIGIBILITY FOR CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION BY ONTARIOVILLE METAL PRODUCTS WHICH DISPLACED STACK-ON PRODUCTS COMPANY AS THE LOW BIDDER FOR ITEM 15.

B-181862, OCT 22, 1974

LATE TELEGRAPHIC MODIFICATION MAY NOT BE CONSIDERED FOR AWARD WHERE TIME INTERVAL BETWEEN RECEIPT AT AGENCY COMMUNICATIONS CENTER AND RETRANSMITTAL TO BID ROOM BUILDING NOT SO GREAT UNDER EXISTING PROCEDURES AND CIRCUMSTANCES AS TO ESTABLISH THAT LATE DELIVERY WAS ATTRIBUTABLE SOLELY TO MISHANDLING BY AGENCY AFTER RECEIPT.

STACK-ON PRODUCTS COMPANY ONTARIOVILLE METAL PRODUCTS:

INVITATION FOR BIDS (IFB) FPWP-C2-55282-A-6-24-74 WAS ISSUED MAY 23, 1974, BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR A CONTEMPLATED REQUIREMENTS CONTRACT FOR THE SUPPLY OF VARIOUS TOOL CHESTS, CABINETS AND BOXES COVERING THE PERIOD FROM OCTOBER 1, 1974, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH SEPTEMBER 30, 1975. BIDS WERE OPENED JULY 8, 1974, AT 2:30 P.M. (E.D.T.) AT THE BID ROOM AT 7TH AND D STREETS, SW., WASHINGTON, D.C., THE LOCATION TO WHICH BIDDERS WERE INSTRUCTED BY THE IFB TO ADDRESS THEIR BIDS.

AT ISSUE IS THE ELIGIBILITY FOR CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION BY ONTARIOVILLE METAL PRODUCTS WHICH DISPLACED STACK-ON PRODUCTS COMPANY AS THE LOW BIDDER FOR ITEM 15. BY LETTER OF JULY 23, ONTARIOVILLE WAS NOTIFIED THAT GSA HAD DETERMINED THE MODIFICATION TO HAVE BEEN TIMELY RECEIVED AND IT WAS SO ENTERED ON THE ABSTRACT OF BIDS. SUBSEQUENTLY, HOWEVER, STACK-ON PROTESTED THE ACCEPTABILITY OF THE MODIFICATION, AND THE RECORD FURNISHED OUR OFFICE INCLUDES A RECONSTRUCTION BY GSA OF THE CIRCUMSTANCES SURROUNDING THE RECEIPT OF THE TELEGRAPHIC MODIFICATION.

IT IS REPORTED THAT THE TELEGRAPHIC MODIFICATION WAS RECEIVED AT THE GSA COMMUNICATIONS CENTER IN THE GSA BUILDING, 18TH AND E STREETS, NW., WASHINGTON, D.C. AT 2:00 P.M. E.D.T. INASMUCH AS THE COMMUNICATIONS CENTER OPERATES ON EASTERN STANDARD TIME (E.S.T.), THE TELEGRAM WAS TIME-STAMPED AT 1:00 P.M. E.S.T., JULY 8, 1974.

IT IS FURTHER REPORTED THAT THE PROCEDURES ESTABLISHED BY GSA FOR THE HANDLING BY THE COMMUNICATIONS CENTER OF BID MESSAGES WHICH ARE DESTINED FOR THE BID ROOM (ROOM 1701) AT 7TH AND D STREETS, SW., ARE THAT FOLLOWING THE SORTING OUT OF VARIOUS TELEGRAPHIC COMMUNICATIONS RECEIVED AT THE CENTER, THE TEXT OF THE MESSAGE IS RETRANSMITTED OVER A SPECIAL LINE (RESERVED PRIMARILY FOR BID MESSAGES) TO A FASCIMILE MACHINE SITUATED AT A COMMUNICATIONS POINT (ROOM 6307) ON THE 6TH FLOOR OF THE BUILDING AT 7TH AND D STREETS, SW. UPON RECEIPT OF THE BID MESSAGE AT THE LATTER COMMUNICATIONS POINT, THE OPERATOR OF THE FASCIMILE MACHINE TELEPHONICALLY REQUESTS THAT A MESSENGER BE SENT FROM THE BID ROOM (1701) ON THE 1ST FLOOR TO PICK UP THE MESSAGE. THE MESSENGER MAKES A ROUND TRIP BETWEEN THE TWO ROOMS LOCATED RESPECTIVELY ON THE 1ST AND 6TH FLOORS. THE MESSAGE, UPON ITS RECEIPT AT THE BID ROOM, IS THEN TIME-STAMPED BY BID ROOM PERSONNEL.

WITH REGARD TO THE ROUTING OF THE TELEGRAM AT ISSUE, GSA REPORTS THAT UPON COMPLETION OF THE SORTING PROCESS, THE TEXT OF THE TELEGRAM WAS RETRANSMITTED IN ITS ENTIRETY AT 2:25 P.M. E.D.T. OVER THE SPECIAL LINE TO THE FASCIMILE MACHINE AT 7TH AND D STREETS, SW. IT IS STATED THAT THE PEAK LOAD TRAFFIC PERIOD AT THE COMMUNICATIONS CENTER IS FROM APPROXIMATELY 11:00 A.M. UNTIL 6:30 P.M. DAILY, AND IT IS ESTIMATED THAT APPROXIMATELY 30 TO 40 MINUTES ARE REQUIRED TO DELIVER A BID MESSAGE TO THE COMMUNICATIONS POINT IN THE BID ROOM BUILDING DURING THIS PEAK LOAD PERIOD. ACCORDINGLY, THE 25 MINUTE RETRANSMISSION PROCESS WAS CONSIDERED NORMAL WITHIN THE FOREGOING TIME FRAME.

WHEN THE RETRANSMITTED MESSAGE ARRIVED AT THE COMMUNICATIONS POINT ON THE 6TH FLLOOR OF THE 7TH AND D STREET BUILDING, NO MORE THAN FIVE MINUTES REMAINED UNTIL BID OPENING. IT DOES NOT APPEAR FROM THE RECORD THAT THE FASCIMILE MACHINE OPERATOR NOTIFIED THE BID ROOM OF THE RECEIPT OF THE MESSAGE BEFORE BID OPENING, AND WE NOTE THAT THE MESSAGE WAS NOT PHYSICALLY DELIVERED TO THE BID ROOM UNTIL 4:06 P.M. SINCE ONTARIOVILLE'S MESSAGE WAS NOT RECEIVED IN THE BID ROOM PRIOR TO BID OPENING, GSA HAS PROPOSED TO MAKE AWARD TO STACK-ON AS THE LOW BIDDER PROVIDED THAT FIRM IS DETERMINED TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR PURSUANT TO THE PROVISIONS OF FPR SEC. 1-1.12 (1964 ED.).

ONTARIOVILLE DISPUTES THE STATEMENT OF GSA THAT THE TELEGRAPHIC MODIFICATION WAS "RECEIVED" AT THE COMMUNICATIONS CENTER AT 2:00 P.M. E.D.T. ONTARIOVILLE ALLEGES THAT THE TELEGRAM WAS TRANSMITTED AT 1:10 E.D.T ON ITS TELEX MACHINE DIRECTLY TO THE TELEX MACHINE AT THE COMMUNICATIONS CENTER, AND NOT THROUGH AN INTERCEDING INSTRUMENTALITY SUCH AS WESTERN UNION. ACCORDINGLY, TRANSMISSION AND RECEIPT ARE VIRTUALLY SIMULTANEOUS. MOREOVER, IT IS ALLEGED THAT THE TELEX MACHINES IN THE COMMUNICATIONS CENTER AT GSA ARE NOT EQUIPPED WITH AUTOMATIC TIMING AND DATING SERVICE, THEREBY REQUIRING MANUAL PERFORMANCE OF THIS TASK. INASMUCH AS SUCH MESSAGES ARE NOT RECORDED UNTIL AN OPERATOR REMOVES THEM FROM THE MACHINES, ONTARIOVILLE CONTENDS THAT THE STAMPED TIME OF RECEIPT MAY NOT PROPERLY BE CONSTRUED AS THE TIME OF ACTUAL RECEIPT.

WE HAVE BEEN ADVISED BY GSA THAT THE COMMUNICATIONS CENTER IS EQUIPPED WITH SEVEN INCOMING CIRCUITS FOR WHICH THERE IS USUALLY ONLY ONE OPERATOR ON DUTY TO EXTRACT AND MANUALLY TIME STAMP THE MESSAGES. ACCORDINGLY, IT IS NOT CONSIDERED UNUSUAL BY GSA FOR MESSAGES TO REMAIN ON THE MACHINES AT PEAK LOAD PERIODS FOR UP TO AN HOUR BEFORE THEIR MANUAL EXTRACTION AND CHRONOLOGICAL RECORDATION, AND GSA DOES NOT CONSIDER THE ALLEGED LAPSE OF 50 MINUTES BETWEEN TIME OF PURPORTED TRANSMISSION AND TIME OF RECORDATION TO BE INCONSISTENT WITH NORMAL HANDLING AFTER RECEIPT.

INCORPORATED BY REFERENCE INTO THE IFB WAS GSA FROM 1424 (REV. 7-73) WHICH, AT PARAGRAPH 61, SETS FORTH THE VARIOUS CONDITIONS UNDER WHICH LATE BIDS AND LATE MODIFICATIONS MAY BE CONSIDERED FOR AWARD. IN PERTINENT PART, SECTIONS (A)(2) AND (B) PROVIDE THAT, IN INSTANCES OF RECEIPT AFTER BID OPENING BUT PRIOR TO AWARD BY THE OFFICE DESIGNATED IN THE SOLICITATION, CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS IS PERMITTED ONLY WHERE IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.

IN DETERMINING WHETHER OR NOT THERE HAS BEEN MISHANDLING AT THE GOVERNMENT INSTALLATION, OUR OFFICE WILL DEVOTE PRIMARY EMPHASIS TO THE PROCEDURES ADOPTED FOR FURTHER TRANSMITTAL OF THE MESSAGE TO FINAL DESTINATION AND, WHERE SUCH MEANS OF TRANSMITTAL ARE CALCULATED TO EFFECT DELIVERY WITHIN A REASONABLE TIME, OUR OFFICE WILL FURTHER CONSIDER ANY SPECIAL CIRCUMSTANCES WHICH MIGHT AFFECT THE DELIVERY PERIOD. SEE 43 COMP. GEN. 317 (1963); B-168210(1), JULY 10, 1970. THE DETERMINATION OF WHAT CONSTITUTES A REASONABLE INTERVAL FOR PROCESSING AT ONE GOVERNMENT INSTALLATION IS NOT NECESSARILY FOR APPLICATION AT ALL INSTALLATIONS; RATHER IT IS UNIQUELY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY INVOLVED. B-168210(1), SUPRA.

IN VIEW THEREOF, AND OF THE PROCEDURES OUTLINED IN THE FOREGOING DISCUSSION, WE ARE OF THE OPINION THAT THE RETRANSMISSION BY THE COMMUNICATIONS CENTER OF MESSAGES TO THE 7TH AND D STREET BUILDING BY SPECIAL LINE TO A FASCIMILE MACHINE THEREIN WAS A METHOD CALCULATED TO EFFECT A REASONABLY EXPEDITIOUS RETRANSMISSION. IN DETERMINING WHETHER DELIVERY UNDER SUCH A METHOD ENTAILED AN ABNORMAL LENGTH OF TIME, OUR OFFICE CANNOT IGNORE ANY SPECIAL CIRCUMSTANCES UNIQUE TO THE AGENCY INVOLVED WHICH MIGHT HAVE AN EFFECT ON THE RESTRANSMITTAL PERIOD.

IN THIS REGARD, WE HAVE RECOGNIZED THAT CERTAIN INSTALLATIONS ARE FACED WITH THE PROBLEM OF EXPEDITIOUSLY PROCESSING VOLUMINOUS NUMBERS OF TELEGRAMS DAILY, AND FREQUENTLY THEIR IMMEDIATE TRANSMISSION TO THE PROPER OFFICE IS NOT ALWAYS FEASIBLE. SEE B-168210(1), SUPRA; B 160600, MARCH 30, 1967. THUS, IN INSTANCES OF HEAVY VOLUME AT A COMMUNICATIONS CENTER, A LAPSE OF 39 MINUTES IN RETRANSMISSION AFTER RECORDATION OF RECEIPT IS NOT CONSIDERED TO BE UN UNREASONABLE TIME EVEN WHERE THE TELEX EQUIPMENT AT THE CENTER IS CAPABLE OF DIRECT COMMUNICATION WITH A SIMILAR FACILITY AT THE BID ROOM SITE. B 168210(1), SUPRA.

UNDER THE CIRCUMSTANCES OF THE INSTANT CASE, WHICH APPEAR SOMEWHAT SIMILAR, WE CANNOT CONCLUDE THAT A 25 MINUTE PERIOD BETWEEN RECORDATION AND RETRANSMISSION WAS ABNORMAL UNDER THE CIRCUMSTANCES OUTLINED. MOREOVER, IN VIEW OF THE INFORMATION PROVIDED BY GSA PERSONNEL THAT IT IS NOT ABNORMAL FOR MESSAGES TO REMAIN ON THE MACHINES FOR UP TO AN HOUR BEFORE EXTRACTION AND RECORDATION DURING PEAK LOAD PERIODS, AND SUCH PEAK LOAD PERIOD FOR GSA EXISTED FROM 11:00 A.M. THROUGH 6:30 P.M. DAILY, WE CANNOT CONCLUDE THAT A DELAY OF 50 MINUTES BETWEEN THE PROTESTER'S ALLEGED TRANSMISSION AT 1:10 P.M. E.D.T. AND THE RECORDATION AT 2:00 P.M. E.D.T. CONSTITUTED MISHANDLING BY GSA.

THE FASCIMILE MACHINE OPERATOR ON THE 6TH FLOOR OF THE 7TH AND D STREET BUILDING HAD BEEN INSTRUCTED TO TELEPHONICALLY ADVISE THE BID ROOM ONLY OF THE RECEIPT OF MESSAGES AND NOT THEIR CONTENTS. WE REALIZE THAT A BID MODIFICATION MAY BE ACCEPTED IF, BEFORE BID OPENING AND AT THE BIDDER'S REQUEST, A RECEIVING TELEGRAPH OFFICE NOTIFIES THE BID ROOM BY TELEPHONE OF THE CONTENTS OF A TELEGRAM AND LATER SUPPLIES A CONFIRMING WRITTEN COPY. FEDERAL PROCUREMENT REGULATIONS SEC. 1 2.304(A) (1964 ED. AMEND. 118); 51 COMP. GEN. 831 (1972). IN THIS CASE, HOWEVER, WE ARE UNABLE TO CONCLUDE THAT THE CONTENTS OF THE BID MESSAGE COULD HAVE BEEN TELEPHONICALLY TRANSMITTED TO THE BID ROOM PRIOR TO BID OPENING SINCE IT IS NOT CLEAR FROM THE EVIDENCE THAT THE GSA OPERATOR REASONABLY COULD HAVE RELAYED THE MESSAGE WITHIN THE FIVE MINUTES REMAINING BETWEEN ITS RECEIPT AND THE TIME OF BID OPENING. IN VIEW OF THE LACK OF TIME AVAILABLE AND THE ABSENCE OF PROCEDURES REQUIRING HIM TO DO SO, WE DO NOT BELIEVE IT CONSTITUTED MISHANDLING FOR THE FASCIMILE MACHINE OPERATOR TO FAIL TO ADVISE THE BID ROOM BY TELEPHONE OF THE MESSAGE'S CONTENTS. HOWEVER, WE ARE RECOMMENDING TO THE GSA THAT THE FEASIBILITY OF REQUIRING SUCH A PROCEDURE BE CONSIDERED IN THE INTEREST OF INCREASING COMPETITION IN FUTURE PROCUREMENTS.

AFTER CONSIDERING THESE CIRCUMSTANCES IN THEIR ENTIRETY, WE CANNOT CONCLUDE THAT THE FAILURE OF THE MODIFICATION TO REACH THE CONTRACTING OFFICER BY BID OPENING WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT. ONTARIOVILLE'S ATTEMPTED BID MODIFICATION WAS THEREFORE LATE AND INELIGIBLE FOR CONSIDERATION.