B-148264, APR. 10, 1962

B-148264: Apr 10, 1962

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THE RECORD SHOWS THAT THE BIDS WERE OPENED AS SCHEDULED AND YOU WERE APPARENT LOW BIDDER AT A PRICE OF $167. IT WAS RECEIVED IN THE BASE PROCUREMENT OFFICE AT 2:30 P.M. THE RECORD ALSO SHOWS THAT THE TELEGRAM WAS DISPATCHED FROM PENSACOLA. WAS RECEIVED AT THE BASE COMMUNICATIONS OFFICE AT 9:45 A.M. 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 RECEIVED BEFORE AWARD AND (A) THEY ARE SUBMITTED BY MAIL (OR BY TELEGRAPH. IF AUTHORIZED) AND (B) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY.

B-148264, APR. 10, 1962

TO E. LEVY AND COMPANY:

YOUR TELEGRAM AND LETTER, WITH ENCLOSURES, DATED FEBRUARY 26 AND 27, 1962, RESPECTIVELY, PROTEST A PROPOSED AWARD BY THE ENGLAND AIR FORCE BASE, LOUISIANA, FOR REPAIRING OVERHEAD ELECTRICAL DISTRIBUTION SYSTEMS TO ANYONE OTHER THAN YOUR COMPANY.

INVITATION FOR BIDS NO. 16-600-62-25 ISSUED ON JANUARY 2, 1962, REQUESTED BIDS TO BE SUBMITTED TO THE BASE PROCUREMENT OFFICE, SALES AND SERVICES CONTRACT BRANCH, BUILDING NO. 1118, ENGLAND AIR FORCE BASE, TO BE OPENED AT 10:30 A.M., C.S.T., FEBRUARY 1, 1962. THE RECORD SHOWS THAT THE BIDS WERE OPENED AS SCHEDULED AND YOU WERE APPARENT LOW BIDDER AT A PRICE OF $167,199.

AT APPROXIMATELY 11:15 A.M., BAROCO ELECTRIC CONSTRUCTION COMPANY OF PENSACOLA, FLORIDA, HEREINAFTER REFERRED TO AS BAROCO, CALLED THE CONTRACTING OFFICER FOR A TABULATION OF BIDS. UPON BEING TOLD OF THE PRICES RECEIVED, BAROCO ADVISED THE CONTRACTING OFFICER THAT IT HAD SUBMITTED A TELEGRAPHIC MODIFICATION WHICH APPARENTLY HAD NOT BEEN RECEIVED. THE CONTRACTING OFFICER CALLED THE BASE COMMUNICATIONS OFFICE AND DISCOVERED THAT THE TELEGRAM HAD BEEN RECEIVED THERE AND HAD BEEN SENT THROUGH REGULAR DISTRIBUTION CHANNELS. IT WAS RECEIVED IN THE BASE PROCUREMENT OFFICE AT 2:30 P.M., C.S.T., FEBRUARY 1, 1962. THE TELEGRAPHIC MODIFICATION DEDUCTED $67,124 FROM BAROCO'S ORIGINAL BID OF $200,000 WHICH MADE ITS BID LOWER THAN YOURS.

THE RECORD ALSO SHOWS THAT THE TELEGRAM WAS DISPATCHED FROM PENSACOLA, FLORIDA, AT 9 A.M., C.S.T., FEBRUARY 1, 1962, AND WAS RECEIVED AT THE BASE COMMUNICATIONS OFFICE AT 9:45 A.M., C.S.T., FEBRUARY 1, 1962. SINCE THE BASE COMMUNICATIONS OFFICER FORWARDED THE TELEGRAM THROUGH REGULAR DISTRIBUTION CHANNELS RATHER THAN CALLING THE BASE PROCUREMENT OFFICE, THE ADDRESSEE OF THE TELEGRAM, THE BID MODIFICATION DID NOT REACH THE CONTRACTING OFFICER UNTIL AFTER BID OPENING.

PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS ADVISED ALL BIDDERS AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. 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 RECEIVED BEFORE AWARD AND (A) THEY ARE SUBMITTED BY MAIL (OR BY TELEGRAPH, IF AUTHORIZED) AND (B) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY, IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *"

IF THE TELEGRAPHIC MODIFICATION OF BAROCO'S BID WAS ENTITLED TO CONSIDERATION UNDER THE ABOVE PROVISION YOU WOULD HAVE NO VALID BASIS FOR PROTESTING AN AWARD TO BAROCO.

YOU URGE THAT THE LATE RECEIPT OF THE TELEGRAM WAS NOT DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AT THE GOVERNMENT INSTALLATION. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAPHIC MODIFICATION HAD BEEN MISHANDLED BY THE GOVERNMENT AND IF IT WAS NOT FOR THIS MISHANDLING IT WOULD HAVE BEEN RECEIVED IN THE OFFICE DESIGNATED FOR OPENING PRIOR TO THE OPENING OF BIDS. HE CONCLUDED THAT THE BASE COMMUNICATIONS OFFICE SHOULD HAVE CALLED HIS OFFICE ON THE TELEPHONE AND ADVISED HIM OF THE RECEIPT OF THE TELEGRAM. HAD THIS PROCEDURE BEEN FOLLOWED, THE INFORMATION IN THE TELEGRAM COULD HAVE BEEN GIVEN TO THE CONTRACTING OFFICER, AND HE IN TURN COULD HAVE DISPATCHED A SPECIAL MESSENGER TO PICK UP THE MODIFICATION. TO PRECLUDE FUTURE OCCURRENCES OF SIMILAR INCIDENTS THE BASE COMMUNICATIONS OFFICER HAS DIRECTED THAT ALL COMMUNICATIONS PERSONNEL SHALL NOTIFY THE ADDRESSEE IMMEDIATELY UPON RECEIPT OF ALL TELEGRAMS, AND IF DEEMED NECESSARY BY THE ADDRESSEE, READ THE CONTENTS OVER THE TELEPHONE.

YOU HAVE SUBMITTED NO EVIDENCE, AND THERE IS NOTHING IN THE RECORD, WHICH WOULD INDICATE THAT THE CONTRACTING OFFICER ACTED UNREASONABLY OR ARBITRARILY IN DETERMINING THAT THE LATE RECEIPT OF THE TELEGRAPHIC MODIFICATION WAS DUE SOLELY TO THE GOVERNMENT'S MISHANDLING. THE PROCURING OFFICE IS UNIQUELY KNOWLEDGEABLE OF WHICH INTERNAL PROCEDURES OUGHT TO BE USED AND AS A PRACTICAL MATTER CAN BE USED IN TRANSMITTING TELEGRAPHIC COMMUNICATIONS ADDRESSED TO BASE PERSONNEL. UNLESS SUCH PROCEDURE IS PROVEN TO BE UNREASONABLE OR UNFEASIBLE, OUR OFFICE HAS NO BASIS FOR OBJECTION.

IN OUR DECISION B-144419 OF JANUARY 12, 1961, WE HELD THAT A LATE TELEGRAPHIC MODIFICATION OF A BID WAS NOT ENTITLED TO CONSIDERATION UNDER PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS. IN THAT CASE, AS IN THIS ONE, THE COMMUNICATIONS OFFICE DID NOT TELEPHONE THE CONTRACTING OFFICER UPON RECEIPT OF THE TELEGRAM, BUT INSTEAD PLACED IT IN ONE OF THE REGULARLY SCHEDULED MESSAGE DELIVERIES. IT WAS DETERMINED BY THE INSTALLATION THERE INVOLVED THAT UNDER THE CIRCUMSTANCES THE PROCEDURE EMPLOYED WAS NOT IMPROPER. HOWEVER, WE HAVE BEEN INFORMALLY ADVISED THAT ENGLAND AIR FORCE BASE, LOUISIANA, IS SEVERAL HUNDRED TIMES SMALLER THAN THE BASE THERE INVOLVED. FURTHERMORE, IT RECEIVES ONLY TWO OR THREE TELEGRAMS A DAY, WHILE THE INSTALLATION INVOLVED IN THE CITED CASE RECEIVES HUNDREDS OF TELEGRAMS DAILY. IT IS APPARENT THAT WHILE THE PROCEDURE ADOPTED BY THE ENGLAND AIR FORCE BASE IS ENTIRELY PROPER, IT IS NOT NECESSARILY FOR APPLICATION AT ALL BASES.

YOU ALSO ARGUE THAT THE TELEGRAPHIC MODIFICATION SHOULD NOT HAVE BEEN CONSIDERED BECAUSE, CONTRARY TO THE DIRECTIONS FOR SUBMITTING BIDS CONTAINED IN STANDARD FORM 21, BID FORM, NEITHER THE TELEGRAPHIC MODIFICATION NOR THE ENVELOPE IN WHICH IT WAS CONTAINED SET FORTH THE TIME AND DATE FOR OPENING OF BIDS. THE DIRECTIONS TO WHICH YOU REFER ARE APPOSITE ONLY TO ENVELOPES CONTAINING THE BID ITSELF, AND DOCUMENTS REQUIRED TO BE SENT WITH SUCH BID. THESE DIRECTIONS DO NOT PERTAIN TO MODIFICATIONS LATER SENT BY TELEGRAMS. WHILE IT MIGHT HAVE BEEN HELPFUL IF THE BODY OF THE TELEGRAM HAD REFERRED TO THE TIME AND DATE FOR OPENING, IT WAS NOT A REQUIREMENT OF THE BID INVITATION THAT THE TELEGRAPHIC MODIFICATION CONTAIN SUCH INFORMATION.

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