B-160600, MAR. 30, 1967

B-160600, MAR. 30, 1967

TO COLE AND GRONER:

REFERENCE IS MADE TO YOUR LETTER AND BRIEF DATED FEBRUARY 27, 1967, AND TO YOUR LATER SUPPLEMENTAL LETTERS AND BRIEFS, REQUESTING RECONSIDERATION OF OUR DECISION B-160600, FEBRUARY 16, 1967, ON BEHALF OF FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA (FERMONT). IN THAT DECISION WE HELD THAT A LATE TELEGRAPHIC BID MODIFICATION SUBMITTED BY FERMONT WHICH WOULD HAVE MADE IT THE LOWEST BIDDER UNDER INVITATION FOR BIDS 162, ISSUED BY THE UNITED STATES MARINE CORPS, SHOULD NOT BE CONSIDERED IN THE EVALUATION OF BIDS.

THE BASES FOR OUR DECISION WERE THAT THE DELAY IN HANDLING THE BID MODIFICATION BY THE TELEGRAPH COMPANY WAS CAUSE BY HEAVY TRAFFIC AND WAS THEREFORE NOT EXCUSABLE, AND THAT THERE WAS NO MISHANDLING OF THE FERMONT TELEGRAM BY THE GOVERNMENT. THE DECISION NOTED THAT THE TELEGRAM IN QUESTION WAS PROPERLY ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS (CODE CSG-5E), HEADQUARTERS UNITED STATES MARINE CORPS, NAVY ANNEX BUILDING, WASHINGTON, D.C. 20380 (ACTUALLY ARLINGTON, VIRGINIA), AND THAT IT WAS FILED AT THE WESTERN UNION OFFICE IN ALEXANDRIA, VIRGINIA, AT 12:18 P.M. ON NOVEMBER 7, 1966, THE BID OPENING DAY. THE DECISION ALSO NOTED THAT TELEGRAMS FROM ALEXANDRIA, VIRGINIA, TO MARINE CORPS HEADQUARTERS ARE ROUTED THROUGH THE UNITED STATES NAVAL COMMUNICATIONS CENTER IN WASHINGTON, D.C. (ACTUALLY CHELTENHAM, MARYLAND). WE HELD THAT THE FACTS OF RECORD DID NOT INDICATE THAT THE TIME (82 MINUTES) REQUIRED FOR THE HANDLING OF THE TELEGRAM BY WESTERN UNION WAS DUE TO A DEPARTURE FROM THE REGULAR ROUTINE OF THE TELEGRAPH COMPANY, AND WE CONCLUDED THAT THE 20 MINUTES REMAINING AFTER RECEIPT OF THE TELEGRAM AT THE COMMUNICATIONS CENTER WERE NOT ADEQUATE TO TRANSMIT THE MESSAGE TO THE ADDRESSEE, THEREBY ELIMINATING ANY QUESTION OF MISHANDLING ON THE PART OF THE GOVERNMENT.

IT IS YOUR PRIMARY CONTENTION THAT BECAUSE THE TELEGRAM WAS NOT DELIVERED DIRECTLY TO THE ADDRESS STATED ON ITS FACE, IT WAS NOT HANDLED BY THE TELEGRAPH COMPANY IN ACCORDANCE WITH ITS NORMAL TRANSMISSION PROCEDURES AND, THEREFORE, SHOULD BE CONSIDERED AS AN ACCEPTABLE LATE TELEGRAPHIC MODIFICATION UNDER ASPR 2-303.4. YOU POINT OUT IN YOUR BRIEF THAT THE FERMONT TELEGRAM WAS PLACED BY LONG DISTANCE TELEPHONE WITH THE ALEXANDRIA, VIRGINIA, WESTERN UNION OFFICE TO ASSURE THE FASTEST POSSIBLE DELIVERY, BUT THAT UNKNOWN TO FERMONT, WESTERN UNION HAD BEEN INSTRUCTED TO DELIVER TELEGRAMS ADDRESSED TO MARINE CORPS HEADQUARTERS TO THE NAVAL COMMUNICATIONS CENTER. YOU MAINTAIN THAT FERMONT NOT ONLY WAS NOT AWARE OF THIS EXTRA TRANSMISSION STEP BUT THAT IT WAS UNDER NO DUTY TO ASCERTAIN THAT FACT, AND THAT IT WAS THIS EXTRA STEP WHICH CAUSED THE TELEGRAM TO BE LATE.

IN SUBSTANTIATION OF THIS CONTENTION, TWO LETTERS OBTAINED FROM WESTERN UNION AFTER RECEIPT OF OUR DECISION WERE SUBMITTED. IN A LETTER DATED MARCH 6, 1967, WESTERN UNION OUTLINED ITS HANDLING OF THE TELEGRAMS AS FOLLOWS:

"/1) THE TELEGRAM WAS FILED AT THE ALEXANDRIA OFFICE AT 12:18 P.M. EST NOV. 7TH BY LONG DISTANCE TELEPHONE FROM BRIDGEPORT, CONN.

"/2) TRANSMISSION FROM THE ALEXANDRIA OFFICE WAS COMPLETED AT 12:45 P.M. EST INTO THE CINCINNATI, OHIO SWITCHING CENTER. THE DELAY IN TRANSMISSION FROM THE ALEXANDRIA OFFICE WAS DUE TO THE FACT THAT IT WAS NECESSARY TO CALL THE WASHINGTON OFFICE FOR ROUTING INFORMATION. THE OFFICE MANAGER CONFIRMS THAT BECAUSE THE MESSAGE WAS ADDRESSED TO CARE OF THE NAVY ANNEX BUILDING WHICH IS LOCATED IN VIRGINIA IT CAUSED DOUBT AS HOW TO HANDLE THE MESSAGE BY MESSENGER OR VIA TELEPRINTER FACILITIES FROM WASHINGTON, D.C. INSTRUCTIONS ON FILE INDICATE THAT MESSAGES FOR ,HEADQUARTERS US MARINE CORPS" ARE TO BE ROUTED VIA NAVAL COMMUNICATIONS FACILITIES FROM OUR MESSAGE CENTER AT WASHINGTON, D.C. THE OFFICE MANAGER ESTIMATES IT TOOK APPROXIMATELY 15 MINUTES TO DEVELOP THE PROPER ROUTING INFORMATION BEFORE PLACING THE TELEGRAM WITH THE SENDING OPERATOR FOR TRANSMISSION.

"/3) THE TELEGRAM WAS SWITCHED INTO THE WASHINGTON RECEIVING OFFICE FROM THE CINCINNATI SWITCHING OFFICE AT 12:51 P.M. EST UTILIZING ONLY 6 MINUTES.

"/4) TRANSMISSION FROM THE WASHINGTON OFFICE INTO NAVAL COMMUNICATIONS WAS COMPLETED AT 1:40 P.M. EST. THE HANDING TIME IN THE WASHINGTON OFFICE AMOUNTED TO 49 MINUTES. THE EXCESSIVE TIME IN HANDLING WAS CAUSED BY CONGESTIVE DIFFICULTIES IN OUR SWITCHING CENTER AND PREVENTED US FROM SWITCHING THE MESSAGE INTO THE NAVAL FACILITIES WITHIN A NORMAL TIME SPAN.

"/5) THE OVERALL HANDLING TIME OF THE TELEGRAM WAS 82 MINUTES WHICH IS IN EXCESS OF OUR NORMAL OBJECTIVE OF 60 MINUTES FROM ORIGIN TO DESTINATION. TAKING INTO CONSIDERATION OF THE DELAY OF APPROXIMATELY 15 MINUTES IN TRANSMISSION AND THE DELAY IN THE WASHINGTON SWITCHING CENTER, UNDER NORMAL CONDITIONS THE TELEGRAM WOULD HAVE BEEN SWITCHED TO THE NAVAL FACILITIES AT A MUCH EARLIER TIME.'

AN EARLIER LETTER DATED FEBRUARY 21, 1967, STATED:

"ORDINARILY FULL RATE TELEGRAMS ARE DELIVERED TO THE ADDRESS FURNISHED BY THE SENDER, BY THE FASTEST OR MOST DIRECT METHOD AVAILABLE. HOWEVER, IN SOME CASES INSTRUCTIONS FROM PROSPECTIVE ADDRESSEES PRECLUDE NORMAL PROCEDURES AND INSTRUCTIONS FROM THE SENDERS. SUCH IS THE CASE WITH RESPECT TO MESSAGES ADDRESSED TO INDIVIDUALS AND OFFICES OF THE COMMANDANT AND HEADQUARTERS OF THE UNITED STATES MARINE CORPS, WASHINGTON, D.C. THE COMMANDING INSTRUCTIONS, CURRENTLY, AND PREVIOUSLY IN EFFECT ON NOV. 7TH, INDICATE THAT TELEGRAMS ADDRESSED TO THE ABOVE ARE TO BE ROUTED VIA NAVAL COMMUNICATIONS, WASHINGTON, D.C. FOR FORWARDING AND FINAL DELIVERY VIA NAVAL, MARINE AND/OR OTHER MILITARY FACILITIES. WE HAVE NO AUTHORITY TO SUPERCEDE THESE INSTRUCTIONS WITHOUT CONSENT FROM THE COMMANDANT'S OFFICE.' BOTH OF THESE LETTERS CONTAINED STATEMENTS TO THE EFFECT THAT UNDER NORMAL CONDITIONS THE TELEGRAM WAS FILED IN SUFFICIENT TIME FOR DELIVERY PRIOR TO 2 P.M., NOVEMBER 7, 1966.

WHILE WE DO NOT QUESTION THAT FERMONT WAS UNAWARE OF THE ADDITIONAL STEP INVOLVED IN DELIVERING ITS TELEGRAM, WE ARE OF THE OPINION THAT THE MODE OF TRANSMISSION USED IN THIS CASE BY WESTERN UNION WAS NOT A DEPARTURE FROM NORMAL ROUTINE AS CONTEMPLATED BY ASPR OR BY PRIOR DECISIONS OF THIS OFFICE, AND THAT THE DELAYS ENCOUNTERED ARE OF THE NATURE TO BE ANTICIPATED BY THE BIDDER.

THE "NORMAL TRANSMISSION PROCEDURE" (ASPR 2-303.4) FOLLOWED BY WESTERN UNION IN ALMOST EVERY CASE INVOLVING A TELEGRAM SENT TO A GOVERNMENT AGENCY IS NOT DIRECT DELIVERY TO THE ADDRESSEE. OF COURSE, DIRECT DELIVERY IS, IN YOUR WORDS, THE "FASTEST OR MOST DIRECT METHOD AVAILABLE.' BUT, IN THE CASE OF THE GOVERNMENT, TELEGRAMS ARE USUALLY DELIVERED BY WESTERN UNION EITHER BY WIRE OR MESSENGER TO THE AGENCY OR INSTALLATION INVOLVED, WHICH THEN EFFECTS DELIVERY TO THE NAMED ADDRESSEE THROUGH ITS OWN PRESCRIBED COMMUNICATION CHANNELS. THE PLACE OF RECEIPT AND THE METHOD OF DELIVERY BY WESTERN UNION OF SUCH TELEGRAMS ARE CUSTOMARILY DETERMINED BY THE AGENCY, NOT BY WESTERN UNION OR THE SENDER. THE "NORMAL TRANSMISSION PROCEDURE" OF WESTERN UNION IN A GIVEN INSTANCE IS GOVERNED BY THE AGENCY INVOLVED, AND THE FACT THAT THE PLACE DESIGNATED BY THE AGENCY FOR RECEIPT OF TELEGRAMS IS NOT AT THE SAME GEOGRAPHICAL LOCATION AS THE ADDRESSEE, IS NOT IN OUR OPINION, THE RELEVANT FACTOR IN DETERMINING WHETHER OR NOT THE TELEGRAM FOLLOWED "NORMAL" PROCEDURES. THE DECISIONS OF OUR OFFICE CITED IN YOUR BRIEFS IN THIS REGARD HELD, UNDER FACTS AND CIRCUMSTANCES SO DEMONSTRATING, THAT DEPARTURE FROM NORMAL PROCEDURE, OR FAILURE TO FOLLOW REGULAR PROCEDURE, WOULD PERMIT CONSIDERATION OF A LATE TELEGRAM. HOWEVER, THOSE CITED CASES INVOLVED SITUATIONS WHICH, UPON CAREFUL READING, DO NOT ESTABLISH PRECEDENTS THAT WOULD JUSTIFY A HOLDING HERE THAT THERE WAS IN FACT A FAILURE TO FOLLOW NORMAL PROCEDURE.

IN OUR VIEW, THE IMPORTANT CONSIDERATIONS IN THIS CASE ARE WHETHER THERE WERE ANY EXCUSABLE DELAYS IN THE HANDLING OF THE TELEGRAM BY WESTERN UNION WITHIN ITS OWN FACILITIES AND BEFORE IT COMPLETED TRANSMISSION TO THE NAVAL COMMUNICATIONS CENTER, AND WHETHER THE PROCEDURE ESTABLISHED BY THE GOVERNMENT PROVIDED FOR REASONABLY EXPEDITIOUS HANDLING OF THE TELEGRAM AFTER IT CAME UNDER GOVERNMENT CONTROL. ALSO, IF IT IS DETERMINED THAT THE GOVERNMENT PROCEDURE ITSELF IS A REASONABLE ONE, IT STILL MUST BE DETERMINED WHETHER OR NOT THERE WAS ANY GOVERNMENT MISHANDLING UNDER THAT PROCEDURE.

WITH REGARD TO THE HANDLING OF THE TELEGRAM BY WESTERN UNION, THE MARCH 6 WESTERN UNION LETTER STATES THAT A 15-MINUTE DELAY WAS ENCOUNTERED IN ALEXANDRIA WHILE ROUTING INSTRUCTIONS WERE BEING OBTAINED AND THAT THEREAFTER IT TOOK 6 MINUTES TO TRANSMIT THE MESSAGE FROM ALEXANDRIA TO WASHINGTON. TOTAL HANDLING TIME FROM ALEXANDRIA TO WASHINGTON WAS 33 MINUTES. HANDLING TIME IN WASHINGTON TOOK 49 MINUTES, WHICH, IN THE OPINION OF WESTERN UNION, WAS EXCESSIVE DUE TO ,CONGESTIVE DIFFICULTIES IN OUR SWITCHING CENTER.' WE DO NOT FEEL THAT THE TIME TAKEN TO OBTAIN ROUTING INSTRUCTIONS IN ALEXANDRIA WAS A DEPARTURE FROM ROUTINE PROCEDURES AMOUNTING TO EXCUSABLE DELAY. A "ROUTING" DETERMINATION, IN OUR VIEW, IS AN INTEGRAL PART OF ADHERENCE TO REGULAR TELEGRAPHIC PROCEDURE. HOWEVER, THIS DELAY WAS NOT THE CAUSE OF LATE DELIVERY BECAUSE EVEN IF THIS 15- MINUTE DELAY HAD NOT OCCURRED, THE TELEGRAM STILL WOULD HAVE BEEN RECEIVED LATE. THE CRUCIAL DELAY WAS ENCOUNTERED IN THE 49 MINUTES REQUIRED TO TRANSMIT THE MESSAGE FROM WASHINGTON TO THE NAVAL COMMUNICATIONS CENTER, WHICH DELAY WAS CAUSED BY THE "CONGESTIVE DIFFICULTIES" REFERRED TO IN THE MARCH 6 LETTER FROM WESTERN UNION. THE ASSUMPTION STATED IN OUR DECISION THAT ,THE VOLUME OF BUSINESS WAS SO HEAVY THAT MESSAGES COULD NOT MOVE WITH ORDINARY DISPATCH" IS SUBSTANTIALLY SUPPORTED BY THE ADDITIONAL INFORMATION PROVIDED BY WESTERN UNION. HENCE, IT IS REASONABLE TO CONCLUDE THAT THE DELAY IN TRANSMISSION BY WESTERN UNION RESULTED FROM A NORMAL CONDITION OF SERVICE WHICH THE BIDDER MUST ANTICIPATE AND FOR WHICH IT MUST BEAR THE RESPONSIBILITY. SEE B 159529, JULY 6, 1966; 46 COMP. GEN. -; 40 ID. 290; B-154451, JUNE 25, 964; B-150705, 46 COMP. GEN. --; 40 ID. 290; B-154451, JUNE 25, 1964; B-150705, FEBRUARY 28, 1963.

WHILE THE BID MODIFICATION WAS DELIVERED BY WESTERN UNION TO A DESTINATION OTHER THAN THAT NAMED IN THE INVITATION, WE DO NOT FEEL THAT THIS IS A CRITICAL CONSIDERATION IN DETERMINING WHETHER THE GOVERNMENT DISCHARGED ITS DUTY IN ESTABLISHING PROCEDURES DESIGNED TO ASSURE THAT BIDS WOULD BE TRANSMITTED TO THE BID OPENING ROOM WITHIN A REASONABLE TIME AFTER RECEIPT. OUR OFFICE HAS HELD THAT THE GOVERNMENT HAS A DUTY TO ESTABLISH REASONABLE PROCEDURES FOR THE HANDLING OF BIDS. SEE B-157176, AUGUST 30, 1965; 43 COMP. GEN. 317. HOWEVER, THESE AND OTHER SIMILAR CASES RECOGNIZE THAT IT IS NOT THE FUNCTION OF OUR OFFICE TO DIRECT THE METHOD OF TRANSMISSION BY THE GOVERNMENT IN AN INDIVIDUAL INSTANCE AND THAT SO LONG AS THE METHOD USED PROVIDES FOR DELIVERY WITHIN A REASONABLE TIME AFTER RECEIPT BY THE GOVERNMENT, IT WILL NOT BE QUESTIONED. IN THE PRESENT CASE, WE FEEL THAT THE PROCEDURES USED WERE REASONABLE AND, FOR THAT REASON, ARE NOT SUBJECT TO QUESTION BY OUR OFFICE. THE FACT THAT THE NAVAL COMMUNICATIONS CENTER IS AT A DIFFERENT LOCATION THAN THE NAVY ANNEX DOES NOT NECESSARILY MEAN THAT TRANSMISSION OF OFFICIAL TELEGRAMS WILL BE UNDULY DELAYED. THIS PROCEDURE MAY BE SIGNIFICANTLY FASTER THAN DELIVERY FROM THE ALEXANDRIA OFFICE BY MESSENGER BECAUSE WIRE TRANSMISSION INTO AND OUT OF THE NAVAL COMMUNICATIONS CENTER IS ALMOST INSTANTANEOUS. IT IS TRUE THAT THIS PROCEDURE IS FREQUENTLY SLOWED CONSIDERABLY BY HEAVY TRAFFIC BUT THIS CAN AFFECT MESSENGER SERVICE AS WELL AS WIRE SERVICE. FOR THIS REASON, THE NUMBER OF MILES BETWEEN THE ALEXANDRIA OFFICE AND THE NAVY ANNEX OR BETWEEN THE NAVAL COMMUNICATIONS CENTER AND THE NAVY ANNEX IS NOT SIGNIFICANT.

WE NOTE THAT IT IS AN OBJECTIVE OF WESTERN UNION TO EFFECT DELIVERY OF TELEGRAMS VIA DIRECT WIRE WITHIN 60 MINUTES AND WITHIN 75 MINUTES FOR TELEGRAMS DELIVERED BY MESSENGER, REGARDLESS OF DISTANCE OR THE NUMBER OF INTERMEDIATE TRANSMISSIONS REQUIRED. IN THE PRESENT CASE, THE MARINE CORPS WAS FACED WITH THE PROBLEM OF EXPEDITIOUSLY HANDLING LARGE NUMBERS OF OFFICIAL TELEGRAMS OF VARYING IMPORTANCE AND DIFFERING PRIORITIES. THE RESPONSIBILITY FOR DETERMINING THE BEST MEANS FOR HANDLING THESE MESSAGES PROPERLY LAY WITH THE MARINE CORPS AND WE CANNOT SAY, ON THE BASIS OF THE RECORD BEFORE US, THAT THE PROCEDURE CHOSEN IS UNREASONABLE.

ADDITIONALLY, WHILE IT IS POSSIBLE THAT DELIVERY WOULD HAVE BEEN TIMELY HAD THE TELEGRAM BEEN DELIVERED DIRECTLY FROM THE ALEXANDRIA WESTERN UNION OFFICE TO THE NAVY ANNEX BY MESSENGER, THAT RESULT WAS BY NO MEANS CERTAIN. THE 75-MINUTE DELIVERY TIME SCHEDULED BY WESTERN UNION FOR DELIVERY BY MESSENGER IS MORE IN THE NATURE OF A GOAL THAN A GUARANTEE, AND THAT TOO CAN BE DEFEATED BY HEAVY TRAFFIC. IN FACT, IT WOULD APPEAR THAT TIMELY DELIVERY WOULD BE LESS CERTAIN BY MESSENGER THAN BY WIRE BECAUSE OF THE MANY OUTSIDE INFLUENCES TO WHICH MESSENGER TRAFFIC IS SUBJECT. IN THE BRIEF SUBMITTED WITH YOUR LETTER OF FEBRUARY 27, 1967, YOU MAINTAIN THAT THE MARINE CORPS RECOMMENDATION THAT THE FERMONT MODIFICATION BE ACCEPTED WAS BINDING ON OUR OFFICE BECAUSE ,THERE WAS NO SUGGESTION OF FRAUD, BAD FAITH OR ARBITRARINESS ON THE PART OF THE CONTRACTING OFFICER, AND CONSIDERING ALL THE EVIDENCE, HIS DECISION WAS NOT UNREASONABLE.' IN SUPPORT OF THIS CONTENTION, YOU CITE SOUTHERN WALDRIP AND HAVRICK CO. V. UNITED STATES, 167 CT.CL. 488, 334 F.2D 245 (1964). IN THE SOUTHERN CASE THE INVITATION FOR BIDS STATED THAT THE OFFICER AWARDING THE CONTRACT WOULD BE CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE TIMELINESS OF TELEGRAPHIC BID MODIFICATIONS. THE COURT HELD THAT THIS CONTRACTUALLY REQUIRED DETERMINATION WAS NOT SUBJECT TO REVIEW BY HIGHER AUTHORITY WITHIN THE INVOLVED AGENCY OR BY THE COURT, ABSENT A SHOWING THAT IT WAS GROSSLY ERRONEOUS. THE CONTRACTING OFFICER WAS NOT CHARGED WITH A SIMILAR DUTY IN THE INSTANT CASE. HENCE, THE RATIONALE OF THE SOUTHERN CASE IS NOT APPLICABLE HERE. SEE B-159529, OCTOBER 24, 1966.

FOR THE ABOVE REASONS, OUR DECISION OF FEBRUARY 16, 1967, IS SUSTAINED.