B-148264, MAY 17, 1962

B-148264: May 17, 1962

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IN WHICH WE HELD THAT A LATE TELEGRAPHIC MODIFICATION OF A BID COULD BE CONSIDERED IN EVALUATING BIDS FOR AWARD BECAUSE THE LATE RECEIPT WAS SOLELY DUE TO MISHANDLING BY ENGLAND AIR FORCE BASE. THAT THE CIRCUMSTANCES UNDER WHICH THE TELEGRAPHIC MODIFICATION WAS THERE RECEIVED. ARE SUBSTANTIALLY IDENTICAL TO THOSE IN THE INSTANT CASE. THAT THE MODIFICATION SHOULD NOT HAVE BEEN CONSIDERED IN MAKING AWARDS. IT IS TRUE THAT THE FAILURE OF THE COMMUNICATIONS OFFICE AT ENGLAND AIR FORCE BASE TO TELEPHONE THE CONTRACTING OFFICER UPON RECEIPT OF THE TELEGRAM WAS NOT A VIOLATION OF THEIR THEN ESTABLISHED POLICY. THAT IS NOT THE QUESTION AT ISSUE. THE QUESTION IS WHETHER OR NOT THE ESTABLISHED POLICY WAS REASONABLE.

B-148264, MAY 17, 1962

TO E. LEVY AND COMPANY:

THE LETTER OF YOUR ATTORNEY, DATED APRIL 16, 1962, REQUESTS REVIEW OF OUR DECISION DATED APRIL 10, 1962, IN WHICH WE HELD THAT A LATE TELEGRAPHIC MODIFICATION OF A BID COULD BE CONSIDERED IN EVALUATING BIDS FOR AWARD BECAUSE THE LATE RECEIPT WAS SOLELY DUE TO MISHANDLING BY ENGLAND AIR FORCE BASE.

YOU URGE THAT OUR DECISION B-144419, DATED JANUARY 12, 1961, CITED BY US AND DISCUSSED IN THE DECISION NOW UNDER REVIEW, SHOULD NOT BE DISTINGUISHED ON THE FACTS. YOU POINT OUT, AS WE DID, THAT THE CIRCUMSTANCES UNDER WHICH THE TELEGRAPHIC MODIFICATION WAS THERE RECEIVED, AND LATER TRANSMITTED THROUGH PROCEDURES ESTABLISHED BY WHITE SANDS MISSILE RANGE, ARE SUBSTANTIALLY IDENTICAL TO THOSE IN THE INSTANT CASE. YOU CONCLUDE THAT WE SHOULD HOLD, AS WE DID IN B 144419, THAT THE MODIFICATION SHOULD NOT HAVE BEEN CONSIDERED IN MAKING AWARDS.

IT IS TRUE THAT THE FAILURE OF THE COMMUNICATIONS OFFICE AT ENGLAND AIR FORCE BASE TO TELEPHONE THE CONTRACTING OFFICER UPON RECEIPT OF THE TELEGRAM WAS NOT A VIOLATION OF THEIR THEN ESTABLISHED POLICY. HOWEVER, THAT IS NOT THE QUESTION AT ISSUE. THE QUESTION IS WHETHER OR NOT THE ESTABLISHED POLICY WAS REASONABLE. THE GOVERNMENT CANNOT AVOID A CHARGE OF NEGLIGENCE SIMPLY ON THE GROUNDS THAT ITS PERSONNEL HAD FOLLOWED SOME PROCEDURE WHICH HAD IN TURN BEEN CREATED BY SUCH PERSONNEL. THE PROCEDURE OF WHICH WE SPEAK IS NOT, OF COURSE, A PUBLISHED REGULATION WHICH ALL BIDDERS ARE DIRECTED TO FOLLOW, NOR IS IT A SUBJECT OF THE CONTRACT OR INVITATION FOR BIDS. AS POINTED OUT IN OUR EARLIER LETTER, IT IS AN INTERNAL PROCEDURE, THE REASONABLENESS OF WHICH IS UNIQUELY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY.

BY B-144419, WE NOTED THAT WE WERE DEALING WITH A RELATIVELY LARGE BASE WHICH RECEIVED HUNDREDS OF TELEGRAMS A DAY. THEREFORE, WE CONCLUDED THAT THE ADMINISTRATIVE DETERMINATION NOT TO HAVE REQUIRED THE TELEPHONING OF THE CONTRACTING OFFICER UPON RECEIPT OF ALL TELEGRAMS WAS NOT UNREASONABLE. IN OUR PREVIOUS LETTER TO YOU, WE NOTED THAT WE ARE DEALING WITH A RELATIVELY SMALL BASE WHICH RECEIVES ONLY A FEW TELEGRAMS A DAY. THEREFORE, WE CONCLUDED THAT THE DETERMINATION BY THE ADMINISTRATIVE AGENCY THAT IT SHOULD HAVE REQUIRED THE TELEPHONING OF THE CONTRACTING OFFICER UPON RECEIPT OF ALL TELEGRAMS WAS NOT UNREASONABLE. IN BOTH CASES, THE DETERMINATION OF WHAT CONSTITUTED A REASONABLE PROCEDURE FOR TRANSMITTING THE CONTENTS OF TELEGRAMS WAS CONSIDERED AN INTERNAL MATTER OF THE ADMINISTRATIVE AGENCY. OUR COMPETENCE IS RESTRICTED TO DETERMINING WHETHER SUCH INTERNAL PROCEDURE, WHEN IT ADVERSELY AFFECTS BIDDERS, IS ARBITRARY, CAPRICIOUS OR UNREASONABLE. YOU HAVE NOT ALLEGED, AND HAVE NOT ATTEMPTED TO PROVE, THAT THE DETERMINATION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN NOTIFIED OF ANY INCOMING TELEGRAM WAS ARBITRARY, CAPRICIOUS OR UNREASONABLE. ON THE BASIS OF THE PRESENT RECORD, WE CAN SEE NO REASON FOR SUCH A CONCLUSION.

YOU ALLEGE THAT YOU FEEL SURE THAT THE PERSONNEL IN THE COMMUNICATIONS OFFICE OF THE TWO CAMPS WAS PROPORTIONATE AND, THEREFORE, THE NUMBER OF TELEGRAMS RECEIVED HAS NO BEARING ON THE RELATIVE BURDEN OF REQUIRING THE COMMUNICATIONS OFFICE TO TELEPHONICALLY ADVISE THE CONTRACTING OFFICER OF THEIR RECEIPT. AGAIN, YOU SUBMIT NO PROOF TO SUPPORT THIS ALLEGATION. BUT, THE ALLEGATION IS IMPLICITLY DENIED BY THE ADMINISTRATIVE DETERMINATION ITSELF, AND IT IS A LONG-ESTABLISHED RULE OF THIS OFFICE THAT WHERE QUESTIONS OF FACT ARE DISPUTED, WE SHALL USUALLY ACCEPT AS TRUE THOSE FACTS REPORTED BY THE ADMINISTRATIVE AGENCY. SEE 37 COMP. GEN. 568. FURTHERMORE, EVEN IF WE ASSUME THAT THE COMMUNICATIONS PERSONNEL AT THE TWO BASES IS IN EQUAL PROPORTION RELATIVE EITHER TO THE NUMBER OF TELEGRAMS RECEIVED OR THE TOTAL WORKLOAD, WE MIGHT STILL CONCLUDE THAT FAILURE TO REQUIRE TELEPHONING TO THE CONTRACTING OFFICER AT ENGLAND AIR FORCE BASE CONSTITUTES AN UNREASONABLE PROCEDURE, NOTWITHSTANDING THAT THE LACK OF SUCH REQUIREMENT AT WHITE SANDS MISSILE RANGE WAS NOT CONSIDERED UNREASONABLE. IF THE SAME PROPORTIONATE AMOUNT OF TELEGRAMS IS RECEIVED AT BOTH BASES, IT MAY YET BE THAT THE COMMUNICATIONS OFFICE AT ENGLAND AIR FORCE BASE HAS A PROPORTIONATELY SMALLER TOTAL WORKLOAD; WHILE ON THE OTHER HAND, IF IT HAS THE SAME PROPORTIONATE WORKLOAD, IT MAY RECEIVE PROPORTIONATELY LESS TELEGRAMS. THIS LATTER ALTERNATE WOULD APPEAR TO BE QUITE LIKELY, IN VIEW OF THE FACT THAT ONLY TWO OR THREE TELEGRAMS ARE RECEIVED EACH DAY AT ENGLAND AIR FORCE BASE.

FOR THE FOREGOING REASONS, OUR DECISION OF APRIL 10, 1962, IS AFFIRMED.

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