B-152288, OCT. 3, 1963, 43 COMP. GEN. 317

B-152288, OCT. 3, 1963, 43 COMP. GEN. 317

BIDS - LATE - TELEGRAPHIC MODIFICATION - MISHANDLING BY GOVERNMENT A TELEGRAPHIC BID MODIFICATION TIMELY RECEIVED AT THE INSTALLATION AND QUALIFYING THE BID AS THE LOW BID, WHICH WAS NOT DELIVERED TO THE CONTRACTING OFFICER UNTIL AFTER THE BIDS WERE OPENED DUE TO THE DELAY IN THE ROUTINE MAIL CHANNELS USED BY THE INSTALLATION TO FORWARD THE TELEGRAM TO HIM, IS FOR CONSIDERATION, THE DELAY CONSTITUTING MISHANDLING PER SE ON PART OF THE GOVERNMENT BECAUSE OF THE FAILURE TO USE A FACILITY OF TRANSMITTAL THAT WOULD HAVE PERMITTED THE TELEGRAPHIC MODIFICATION TO BE DELIVERED TO THE CONTRACTING OFFICER WITHIN A REASONABLE TIME AFTER THE MODIFICATION WAS RECEIVED AT THE INSTALLATION AND, THEREFORE, UNDER THE AUTHORITY IN PARAGRAPHS 2-303 AND 2-305, ARMED SERVICES PROCUREMENT REGULATION, THE BID AS MODIFIED SHOULD BE CONSIDERED FOR AWARD AND THE PREVIOUS AWARD MADE UNDER THE INVITATION CANCELED.

TO THE SECRETARY OF THE AIR FORCE, OCTOBER 3, 1963:

WE REFER TO A LETTER DATED SEPTEMBER 13, 1963 (AFSPPCA) FROM HEADQUARTERS, DEPARTMENT OF THE AIR FORCE, REFERRING TO THIS OFFICE A LETTER FROM AIR COMFORT ENGINEERS, INCORPORATED, 518 N. FLORIDA ST., MONTGOMERY 9, ALABAMA, PROTESTING THE DECISION BY HEADQUARTERS, DEPARTMENT OF THE AIR FORCE TO CANCEL CONTRACT NO. AF 01/600/-3954 AWARDED TO THE ABOVE CONCERN BY THE BASE PROCUREMENT OFFICE, MAXWELL AIR FORCE BASE, ALABAMA.

ON MAY 21, 1963, THE BASE PROCUREMENT OFFICE, MAXWELL AIR FORCE BASE ISSUED INVITATION FOR BIDS NO. 01-600-63-96 TO SOLICIT BIDS FOR THE PERFORMANCE OF ALL WORK FOR AIR CONDITIONING TWO GUEST HOUSES, BUILDINGS 902 AND 903, LOCATED ON THE ABOVE BASE. IN RESPONSE TO THE INVITATION FOUR BIDS WERE RECEIVED AS FOLLOWS:

TABLE

1. METCALF AND SHIVER -------------------------------------- $40,000

2. TOM NEVILLE, INCORPORATED ------------------------------- 25,925

3. J. E. SNIPES COMPANY ------------------------------------ 24,410

4. AIR COMFORT ENGINEERS, INCORPORATED --------------------- 23,788

THE GOVERNMENT'S ESTIMATE FOR THIS PROJECT WAS $25,000.

BIDS WERE OPENED AT 1:00 P.M. ON JUNE 20, 1963 AS SCHEDULED IN THE INVITATION. ON JUNE 20, 1963, AT 10:13 A.M., METCALF AND SHIVER SENT A TELEGRAPHIC MODIFICATION FROM DOTHAN, ALABAMA, TO THE BASE PROCUREMENT OFFICE AT MAXWELL AIR FORCE BASE REDUCING ITS BID BY $16,256. THE METCALF AND SHIVER BID AS MODIFIED WAS $23,744 OR $44 LOWER THAT THE BID SUBMITTED BY AIR COMFORT ENGINEERS, INCORPORATED. THE TELEGRAPHIC MODIFICATION ARRIVED AT THE MAXWELL AIR FORCE COMMUNICATION CENTER (BUILDING NO. 929) AT 10:45 A.M., AND WAS DISPATCHED THROUGH ROUTINE MAIL CHANNELS TO THE BASE PROCUREMENT OFFICE (BUILDING NO. 853) ARRIVING THERE AT 2:30 P.M. OR SOME ONE AND A HALF HOURS AFTER BID OPENING. THE CONTRACTING OFFICER REFUSED TO CONSIDER THE TELEGRAPHIC MODIFICATION SUBMITTED BY METCALF AND SHIVER AS A LATE BID AND CONTRACT NO. AF 01/600/-3954 WAS AWARDED TO AIR COMFORT ENGINEERS, INCORPORATED, ON THE BASIS OF ITS BID OF $23,788. THIS REGARD THE CONTRACTING OFFICER DETERMINED THAT THERE WAS NO DELAY ON THE PART OF THE TELEGRAPH COMPANY IN TRANSMITTING THE TELEGRAM TO MAXWELL AIR FORCE BASE AND THAT THERE WAS MISHANDLING BY THE GOVERNMENT AFTER RECEIPT OF THE TELEGRAM AT MAXWELL AIR FORCE BASE AS THE TELEGRAM WHICH WAS PLACED IN NORMAL MAIL CHANNELS REACHED THE BASE PROCUREMENT OFFICE AS WAS SCHEDULED BY THIS METHOD OF DELIVERY.

ON JUNE 21, 1963, METCALF AND SHIVER SENT A TELEGRAM TO THE MAXWELL AIR FORCE BASE PROCUREMENT OFFICE PROTESTING THE ACTION OF THE CONTRACTING OFFICER IN MAKING AN AWARD TO AIR COMFORT ENGINEERS, INCORPORATED, AND CONTENDING THAT THE METCALF AND SHIVER BID SHOULD HAVE BEEN CONSIDERED AS MODIFIED. PURSUANT TO AIR FORCE PROCUREMENT INSTRUCTIONS 2-407.9 WHICH PROVIDES THAT A CONTRACTING OFFICER MAY SUBMIT A PROTEST TO HIGHER AUTHORITY FOR REVIEW IF DESIRABLE, THIS PROTEST WAS SUBMITTED TO HEADQUARTERS, DEPARTMENT OF THE AIR FORCE, WASHINGTON 25 D.C., FOR A DECISION. UPON REVIEW OF THE METCALF AND SHIVER PROTEST, HEADQUARTERS, DEPARTMENT OF THE AIR FORCE CONCLUDED THAT A DELIVERY OF A TELEGRAM THROUGH THE USE OF ROUTINE MAIL FACILITIES CONSTITUTED MISHANDLING PER SE ON THE PART OF THE GOVERNMENT AND MAXWELL AIR FORCE BASE WAS INSTRUCTED TO CANCEL THE AWARD TO AIR COMFORT ENGINEERS, INCORPORATED AND TO MAKE AWARD OF THIS CONTRACT TO METCALF AND SHIVER IF OTHERWISE PROPER. ON AUGUST 5, 1963, AIR COMFORT ENGINEERS, INCORPORATED PROTESTED THIS DECISION BY AIR FORCE HEADQUARTERS AND ON AUGUST 14, 1963, AIR FORCE HEADQUARTERS REFERRED THE MATTER TO THIS OFFICE. THE DEPARTMENT OF THE AIR FORCE STATES THAT THE AWARD TO AIR COMFORT ENGINEERS, INCORPORATED WILL NOT BE CANCELED UNTIL THIS MATTER IS RESOLVED BY THIS OFFICE.

WE ARE INFORMED THAT THE MAXWELL AIR FORCE BASE POST OFFICE (BUILDING NO. 807) HAS REGULARLY SCHEDULED PICK-UPS FOR THE BASE COMMUNICATION CENTER WHICH LEAVE THE POST OFFICE AT 8:00 A.M., 0:30 A.M., 1:00 P.M. AND 3:00 P.M. THIS MAIL IS BROUGHT BACK TO THE POST OFFICE AND IF ADDRESSED TO THE BASE PROCUREMENT OFFICE LEAVES THE POST OFFICE FOR DELIVERY TO THIS PROCUREMENT OFFICE AT :00 A.M., 9:00 A.M., AND 2:00 P.M. IN THIS INSTANCE THE METCALF AND SHIVER TELEGRAPHIC MODIFICATION ADDRESSED TO THE BASE PROCUREMENT OFFICE WHICH ARRIVED AT THE BASE COMMUNICATION CENTER AT 10:45 A.M. AND WAS PLACED IN ROUTINE MAIL CHANNELS WAS NOT PICKED UP UNTIL THE 1:00 P.M. SCHEDULED DEPARTURE FROM THE POST OFFICE AND DID NOT LEAVE THE POST OFFICE FOR THE BASE PROCUREMENT OFFICE UNTIL THE REGULARLY SCHEDULED DEPARTURE TIME AT 2:00 P.M., ARRIVING AT THE BASE PROCUREMENT OFFICE AT APPROXIMATELY 2:30 P.M. THE CONTRACTING OFFICER STATES THAT ALL OFFICIAL TELEGRAMS ARE DELIVERED THROUGH NORMAL MAXWELL AIR FORCE BASE MAIL CHANNELS. TO AVOID REPETITION OF THIS SITUATION IN FUTURE PROCUREMENTS, MAXWELL AIR FORCE BASE NOW REQUIRES OPERATORS OF WESTERN UNION TELETYPE MACHINES ON THIS BASE TO TELEPHONE TO THE BASE PROCUREMENT OFFICE THE CONTENTS OF ANY TELEGRAM ADDRESSED TO THAT OFFICE.

CLAUSE 5 (D), INSTRUCTIONS TO BIDDERS, OF THIS INVITATION PROVIDES THAT TELEGRAPH MODIFICATIONS WILL BE CONSIDERED. CLAUSE 12 OF THESE SAME INSTRUCTIONS PROVIDES:

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: (A) THEY ARE RECEIVED BEFORE AWARD IS MADE; (B) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED; AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED, FOR WHICH THE BIDDER WAS NO RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION * * *.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-305 DEFINES "LATE MODIFICATION" AND PROVIDES THAT THE RULES AND PROCEDURES CONTAINED IN ASPR 2-303 IN REGARD TO LATE BIDS ALSO APPLY TO TELEGRAPHIC MODIFICATIONS WHICH ARE RECEIVED AFTER BID OPENING. ASPR 2-303.2 ENTITLED ,CONSIDERATION FOR AWARD" PROVIDES:

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(I) IT IS RECEIVED BEFORE AWARD; AND EITHER

(II) IT WAS SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3). OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(III) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. * * *

FROM A REVIEW OF THIS RECORD WE FIND THAT THE CONTRACTING OFFICER RECEIVED THE METCALF AND SHIVER MODIFICATION BEFORE AWARD, AND THAT THERE WAS NO DELAY BY THE TELEGRAPH COMPANY IN THE TRANSMITTAL OF THIS MODIFICATION. IN REGARD TO THE QUESTION WHETHER THERE WAS MISHANDLING BY THE GOVERNMENT AFTER THE TELEGRAM WAS RECEIVED AT THE MAXWELL AIR FORCE BASE WE HAVE THE FOLLOWING COMMENTS. AT MANY GOVERNMENT INSTALLATIONS AS AT MAXWELL AIR FORCE BASE, A TELEGRAPHIC MODIFICATION IS NOT RECEIVED DIRECTLY BY THE CONTRACTING OFFICER FROM THE TELEGRAPH COMPANY BUT MUST BE DELIVERED TO THE CONTRACTING OFFICER AFTER ITS RECEIPT AT THE INSTALLATION. VARIOUS MEANS OF TRANSMITTAL ARE PRESENTLY BEING USED FOR THIS PURPOSE AND IN THIS REGARD IT IS NOT THE FUNCTION OF THIS OFFICE TO SUGGEST WHICH OF THESE MEANS IS BEST SUITED FOR ANY PARTICULAR INSTALLATION. HOWEVER, THE GOVERNMENT MUST USE A FACILITY OF TRANSMITTAL WHICH WILL PERMIT A TELEGRAPHIC MODIFICATION TO BE DELIVERED WITHIN A REASONABLE TIME AFTER ITS RECEIPT AT AN INSTALLATION. IN THE CIRCUMSTANCES PRESENTED HERE WE DO NOT BELIEVE THAT THE DELIVERY OF THIS TELEGRAPHIC MODIFICATION WAS ACCOMPLISHED WITHIN A REASONABLE TIME AFTER THE MODIFICATION WAS RECEIVED AT THIS INSTALLATION, AND IN THESE CIRCUMSTANCES THERE IS NO QUESTION THAT THERE WAS MISHANDLING BY THE GOVERNMENT. CONSEQUENTLY, WE FIND THAT PURSUANT TO AUTHORITY CONTAINED IN ASPR 2-303 AND APSR 2-305 THE METCALF AND SHIVER BID AS MODIFIED PROPERLY SHOULD HAVE BEEN CONSIDERED FOR AWARD.

WE CONCLUDE, THEREFORE, THAT THE AWARD TO AIR COMFORT ENGINEERS, INCORPORATED, SHOULD BE CANCELED AND AWARD MADE TO METCALF AND SHIVER.