B-152288, DEC. 11, 1963

B-152288, DEC. 11, 1963

TO JONES, MURRAY AND STEWART:

WE REFER TO YOUR LETTER DATED NOVEMBER 19, 1963, ON BEHALF OF AIR COMFORT ENGINEERS, INCORPORATED, 518 N. FLORIDA STREET, MONTGOMERY 9, ALABAMA, REQUESTING THAT WE RECONSIDER OUR DECISION B-152288, OCTOBER 3, 1963, 43 COMP. GEN. - , TO THE SECRETARY OF THE AIR FORCE. IN THAT DECISION WE DIRECTED THE DEPARTMENT OF THE AIR FORCE TO CANCEL CONTRACT NO. AF 01/600/ -3954, WHICH HAD BEEN AWARDED TO AIR COMFORT ENGINEERS, INCORPORATED. CONCLUDED THAT A TELEGRAPHIC MODIFICATION FROM METCALF AND SHIVER, RECEIVED BY THE CONTRACTING OFFICER BEFORE AWARD BUT AFTER BID OPENING WHICH REDUCED THE BID OF METCALF AND SHIVER TO THE LOWEST BID RECEIVED, SHOULD HAVE BEEN CONSIDERED BY THE CONTRACTING OFFICER. WE FOUND THAT THE TELEGRAPHIC MODIFICATION WAS NOT TRANSMITTED TO THE CONTRACTING OFFICER WITHIN A REASONABLE TIME AFTER THE MODIFICATION WAS RECEIVED AT THE BASE COMMUNICATION CENTER AT MAXWELL AIR FORCE BASE, AND THAT SUCH ACTION CONSTITUTED MISHANDLING BY THE GOVERNMENT. IN THIS REGARD ARMED SERVICES PROCUREMENT REGULATIONS SEC. 2-305 AND SEC. 2-303.2 PROVIDE THAT SUCH A MODIFICATION MAY BE CONSIDERED EVEN THOUGH RECEIVED AFTER BIDS ARE OPENED.

IN YOUR LETTER YOU OFFER NO NEW FACTS OR EVIDENCE TO SUPPORT YOUR REQUEST FOR RECONSIDERATION BUT YOU ALLEGE THAT THE CONCLUSION IN OUR DECISION TO THE SECRETARY OF THE AIR FORCE WAS NOT SUPPORTED BY THE FACTS STATED IN OUR OPINION. THE RECORD ESTABLISHES THAT THE METCALF AND SHIVER TELEGRAPHIC MODIFICATION WAS RECEIVED BY THE COMMUNICATIONS CENTER AT MAXWELL AIR FORCE BASE SOME 2 1/2 HOURS BEFORE BIDS WERE OPENED. THE INVITATION FOR BIDS SPECIFICALLY PROVIDED THAT TELEGRAPHIC MODIFICATIONS WOULD BE CONSIDERED. WE WOULD FIND IT EXTREMELY DIFFICULT TO JUSTIFY THE LENGTH OF TIME BETWEEN RECEIPT AND DELIVERY OF THIS MODIFICATION ON THE BASIS THAT A ROUTINE CHANNEL OF TRANSMISSION WAS UTILIZED. CONSIDERING THE CIRCUMSTANCES INVOLVED IT WAS IMPOSSIBLE FOR THIS TELEGRAPHIC MODIFICATION, WHICH WAS RECEIVED AT THE COMMUNICATIONS CENTER WITHIN A REASONABLE TIME BEFORE BID OPENING, TO BE DELIVERED TO THE CONTRACTING OFFICER BEFORE BID OPENING IF THE ROUTINE MAIL CHANNEL WERE UTILIZED. THE RECORD INDICATES THAT THE DEPARTMENT OF THE AIR FORCE ALSO BELIEVED THE SYSTEM OF TRANSMITTAL OF THE METCALF AND SHIVER MODIFICATION WAS UNREASONABLE. IN THIS REGARD THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE PROCUREMENT POLICY, DCS/S AND L, SUGGESTED THAT INSTRUCTIONS BE ISSUED WHEREBY PROCURING ACTIVITIES WOULD MAKE APPROPRIATE ARRANGEMENTS FOR BASE COMMUNICATIONS OFFICES TO NOTIFY PROCUREMENT OFFICES BY TELEPHONE OR SPECIAL MESSENGER OF THE RECEIPT OF A TELEGRAPHIC MODIFICATION. THESE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION OUR CONCLUSIONS THAT THE METCALF AND SHIVER TELEGRAPHIC MODIFICATION WAS MISHANDLED, AND SHOULD HAVE BEEN CONSIDERED BY THE CONTRACTING OFFICER NOTWITHSTANDING THAT THE MODIFICATION WAS NOT RECEIVED BY THE CONTRACTING OFFICER UNTIL AFTER BID OPENING. SUCH IS THE CLEAR INTENT OF ARMED SERVICES PROCUREMENT REGULATIONS SEC. 2-305 AND SEC. 2-303.2.

WHILE THE CANCELLATION OF AN AWARD WHICH A BIDDER ACCEPTS IN GOOD FAITH IS UNFORTUNATE, THE ACTION OF THIS OFFICE IN DIRECTING THE CANCELLATION OF THE AWARD MADE TO AIR COMFORT ENGINEERS, INCORPORATED, WAS CONSISTENT WITH THE PROVISIONS OF 10 U.S.C. 2305 (C) WHICH PROVIDES THAT AWARDS SHALL BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.

FOR THE FOREGOING REASONS OUR DECISION B-152288, OCTOBER 3, 1963, 43 COMP. GEN. - , IS AFFIRMED.