B-153792, APR. 10, 1964

B-153792, APR. 10, 1964

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MARCH 23, 1964, FROM THE OFFICE OF THE CHIEF OF ENGINEERS, FILE ENGGC-M, IN REGARD TO A PROTEST BY OTTO RANDOLPH, INC., AGAINST THE POSSIBLE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ENG-04-353-64-16, COVERING THE INSTALLATION OF WATER LINES, ETC., AT THE ARMY ELECTRONIC PROVING GROUND, FORT HUACHUCA, ARIZONA.

THE INVITATION FOR BIDS WAS ISSUED ON DECEMBER 5, 1963, BY THE UNITED STATES ARMY ENGINEER DISTRICT, LOS ANGELES, CALIFORNIA, AND THE BIDS WERE TO BE OPENED AT 1 P.M., P.S.T., JANUARY 9, 1964. NINE BIDS WERE RECEIVED. THE APPARENT LOW BIDDER IS BURN CONSTRUCTION COMPANY, INC., WHICH SUBMITTED A BID TOTALING $139,471.39 FOR THE 17 ITEMS OF WORK. OTTO RANDOLPH, INC., TUCSON, ARIZONA, SUBMITTED A BID IN THE AMOUNT OF $249,662. THE LATTER FIRM SUBMITTED A TELEGRAPHIC MODIFICATION OF ITS BID REDUCING ITS BID BY $113,866.60, BUT THIS MODIFICATION WAS NOT RECEIVED AT THE CONTRACTING OFFICE UNTIL 1:47 P.M., P.S.T., OR 47 MINUTES AFTER THE TIME SET FOR BID OPENING. THE QUESTION PRESENTED IS WHETHER THE TELEGRAPHIC MODIFICATION CAN BE CONSIDERED IN MAKING AWARD OF THE CONTRACT.

WITH RESPECT TO LATE TELEGRAPHIC BIDS, PARAGRAPH 2-303.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES AS FOLLOWS:

"A LATE TELEGRAPHIC BID SHALL BE PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE RECEIVED IN TIME, EXCEPT WHERE THE BIDDER DEMONSTRATES BY CLEAR AND CONVINCING EVIDENCE, WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY, THAT THE BID, AS RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.'

PARAGRAPH 2-305 OF SAID REGULATION ALSO PROVIDES THAT "A LATE MODIFICATION OR LATE WITHDRAWAL SHALL BE SUBJECT TO THE RULES AND PROCEDURES APPLICABLE TO LATE BIDS SET FORTH IN 2-303.'

THE RECORD SHOWS THAT OTTO RANDOLPH, INC., FILED ITS TELEGRAPHIC MODIFICATION WITH THE WESTERN UNION OFFICE AT TUCSON, ARIZONA, AT 1:21 P.M., M.S.T., JANUARY 9, 1964. THE TELETYPE WAS RELEASED BY THE LOS ANGELES WESTERN UNION OFFICE FOR DELIVERY AT 1:39 P.M., P.S.T., AND WAS DELIVERED TO THE LOS ANGELES DISTRICT OFFICE (THE CONTRACTING OFFICE) AT 1:47 P.M., P.S.T., OR 47 MINUTES AFTER THE TIME SET FOR THE BID OPENING. THE PROTESTING BIDDER (RANDOLPH)ALLOWED ONLY 39 MINUTES FROM THE TIME OF FILING ITS TELEGRAM IN TUCSON FOR TRANSMISSION AND DELIVERY OF ITS TELEGRAPHIC MODIFICATION.

IN SUPPORT OF ITS CONTENTION THAT THE TELEGRAPH COMPANY TOOK AN ABNORMALLY LONG TIME IN DELIVERING THE INVOLVED TELEGRAM, RANDOLPH POINTS OUT THAT THE TELEGRAM ARRIVED IN THE COMPANY'S LOS ANGELES OFFICE IN 15 MINUTES OR BY 12:36 P.M., P.S.T., LEAVING 24 MINUTES FOR DELIVERY PRIOR TO THE SCHEDULED BID OPENING TIME. THE QUESTION, HOWEVER, IS WHETHER THE COMPANY TOOK AN ABNORMALLY LONG TIME AFTER THE FILING OF A TELEGRAM TO MAKE ACTUAL DELIVERY AND WHETHER THE BIDDER DEPOSITED ITS MESSAGE WITH THE TELEGRAPH COMPANY SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL OR FORESEEABLE DELAYS. IN REGARD TO THE TIME ELAPSING BETWEEN THE FILING OF THE MESSAGE WITH THE COMPANY AND THE TIME OF DELIVERY, THE COMPANY HAS STATED ON TWO OCCASIONS THAT THE MAXIMUM TIME OF 75 MINUTES THEREFOR HAS BEEN ESTABLISHED BY THE REGULATORY BODIES. FURTHERMORE, THE LOS ANGELES OFFICE OF WESTERN UNION HAS ADVISED THE CONTRACTING OFFICE IN A LETTER DATED MARCH 11, 1964, THAT THE AVERAGE TIME FOR HANDLING MESSAGES FOR THE PAST FOUR MONTHS HAS BEEN 52.8 MINUTES. ACCORDINGLY, THE CONTRACTING OFFICER HAS CONCLUDED THAT SINCE RANDOLPH ALLOWED 39 MINUTES ONLY BETWEEN THE TIME IT FILED THE MESSAGE IN TUCSON FOR TRANSMISSION AND DELIVERY OF THE TELEGRAPHIC MODIFICATION IT HAS FAILED TO DEMONSTRATE "BY CLEAR AND CONVINCING EVIDENCE" THAT IT FILED ITS MESSAGE "IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.'

SINCE THE PROTESTING BIDDER HAS FAILED TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT ITS TELEGRAPHIC MODIFICATION "WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE" AS REQUIRED BY ASPR 2- 303.4 TO RECEIVE CONSIDERATION, THE TELEGRAPHIC MODIFICATION BY RANDOLPH SHOULD BE DISREGARDED IN MAKING AWARD. SEE 39 COMP. GEN. 586 AND 40 ID. 290.

THE ORIGINAL BIDS AND BID BONDS OF OTTO RANDOLPH, INC., AND THE BURN CONSTRUCTION COMPANY, NC., ARE RETURNED HEREWITH.