Skip to main content

B-168210 (1), JUL. 10, 1970

B-168210 (1) Jul 10, 1970
Jump To:
Skip to Highlights

Highlights

A TELEX BID MODIFICATION WHICH ARRIVED AT THE PROCURING AGENCY COMMUNICATIONS CENTER 39 MINUTES BEFORE BID OPENING BUT WAS NOT DELIVERED TO THE DESIGNATED BID OPENING OFFICE UNTIL THE NEXT DAY BECAUSE THERE WAS NO PRIORITY DESIGNATION ON THE FACE OF THE MESSAGE AND BECAUSE OF THE VOLUME OF MESSAGES RECEIVED MAY NOT HAVE THE PROCURING AGENCY'S DETERMINATION THAT THERE WAS NO MISHANDLING BY THE GOVT. TO SIMPSON ELECTRIC COMPANY: THIS IS IN REFERENCE TO A PROTEST FILED HERE BY BRUNO-NEW YORK INDUSTRIES CORPORATION (BRUNO) AGAINST THE ACCEPTANCE OF YOUR LATE TELEX BID MODIFICATION UNDER INVITATION FOR BIDS NO. THIS MATTER WAS THE SUBJECT OF YOUR LETTER DATED JUNE 10. IN WHICH ARGUMENT WAS SUBMITTED FOR OUR CONSIDERATION.

View Decision

B-168210 (1), JUL. 10, 1970

BID PROTEST -- LATE TELEX MODIFICATIONS DECISION TO SIMPSON ELECTRIC CO. LOW BIDDER, CONCLUDING THAT LATE TELEX BID MODIFICATION MAY NOT BE CONSIDERED FOR AWARD BY KELLY AIR FORCE BASE. A TELEX BID MODIFICATION WHICH ARRIVED AT THE PROCURING AGENCY COMMUNICATIONS CENTER 39 MINUTES BEFORE BID OPENING BUT WAS NOT DELIVERED TO THE DESIGNATED BID OPENING OFFICE UNTIL THE NEXT DAY BECAUSE THERE WAS NO PRIORITY DESIGNATION ON THE FACE OF THE MESSAGE AND BECAUSE OF THE VOLUME OF MESSAGES RECEIVED MAY NOT HAVE THE PROCURING AGENCY'S DETERMINATION THAT THERE WAS NO MISHANDLING BY THE GOVT. REGARDED AS ARBITRARY, CAPRICIOUS OR UNSUBSTANTIATED. THEREFORE THE LOW BID SHOULD NOT BE DISPLACED BY CONSIDERATION OF PROTESTANT'S LATE TELEX MODIFICATION.

TO SIMPSON ELECTRIC COMPANY:

THIS IS IN REFERENCE TO A PROTEST FILED HERE BY BRUNO-NEW YORK INDUSTRIES CORPORATION (BRUNO) AGAINST THE ACCEPTANCE OF YOUR LATE TELEX BID MODIFICATION UNDER INVITATION FOR BIDS NO. F41608-70-B-0682, ISSUED BY KELLY AIR FORCE BASE (KELLY AFB), TEXAS. THIS MATTER WAS THE SUBJECT OF YOUR LETTER DATED JUNE 10, 1970, IN WHICH ARGUMENT WAS SUBMITTED FOR OUR CONSIDERATION.

THE INVITATION, WHICH PERMITTED TELEGRAPHIC MODIFICATIONS OF BIDS, REQUIRED THAT THEY BE RECEIVED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION (DP&P), KELLY AFB, BY THE TIME SET FOR BID OPENING, 1:30 P.M., CST, FEBRUARY 24, 1970. THE RECORD SHOWS THAT YOU DISPATCHED A BID MODIFICATION VIA TELEX MACHINE AT 12:40 P.M. AND IT WAS TIME STAMPED AS RECEIVED AT THE COMMUNICATIONS CENTER, KELLY AFB, AT 12:51 P.M., OR 39 MINUTES BEFORE THE TIME SET FOR SUBMISSION OF BIDS. THE TELEX MESSAGE WAS PLACED IN ROUTINE MAIL DELIVERY CHANNELS IN ACCORDANCE WITH ESTABLISHED PROCEDURES AT THE BASE AND WAS RECEIVED AT THE DP&P ON THE DAY FOLLOWING THE BID OPENING AT 9:15 A.M. THIS MODIFICATION, IF CONSIDERED, WOULD MAKE YOUR BID LOW, THEREBY DISPLACING THE BRUNO BID.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-305, PROVIDES, IN PERTINENT PART, THAT MODIFICATIONS OF BIDS RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT TIME FOR OPENING ARE LATE MODIFICATIONS.

THE SUBJECT INVITATION INCORPORATED SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, JULY 1966, WHICH STATES IN PARAGRAPH 8, AS AMENDED (1968 DEC.), THAT ANY LATE TELEGRAPHIC MODIFICATION MUST NOT BE CONSIDERED UNLESS IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION, PROVIDED THAT TIMELY RECEIPT IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP OF SUCH INSTALLATION. THE PROCUREMENT REGULATIONS ARE TO THE SAME EFFECT. SEE ASPR 2-305; 2- 303.4 AND 2-303.3(A)(II).

THE QUESTION TO BE DECIDED, THEREFORE, IS WHETHER YOUR BID MODIFICATION SHOULD HAVE BEEN RECEIVED AT THE OFFICE DESIGNATED WITHIN 39 MINUTES OF ITS RECEIPT AT THE COMMUNICATIONS CENTER.

THE DEPARTMENT OF THE AIR FORCE HAS OFFICIALLY TAKEN THE POSITION IN ITS REPORT TO THIS OFFICE THAT NOTWITHSTANDING THE USE OF ROUTINE DELIVERY CHANNELS IN THIS CASE YOUR BID MODIFICATION SHOULD NOT BE ACCEPTED BECAUSE THE MESSAGE DID NOT INDICATE ON ITS FACE ANY DESIRED DELIVERY TIME OR THAT IT SHOULD BE GIVEN SPECIAL HANDLING, AND IT IS NOT REASONABLE TO EXPECT SUCH A MESSAGE TO HAVE BEEN COMMUNICATED TO THE CORRECT OFFICE WITHIN 39 MINUTES AFTER ITS RECEIPT AT THE COMMUNICATIONS OFFICE IN VIEW OF THE VOLUME OF MESSAGES PROCESSED DAILY AT THE INSTALLATION (APPROXIMATELY 1500). THE CONTRACTING OFFICER, ON THE OTHER HAND, BELIEVED THAT THE GOVERNMENT SHOULD HAVE USED A MEANS OF DELIVERY OTHER THAN ROUTINE METHODS WHICH WOULD HAVE PERMITTED THE TELEGRAPHIC MODIFICATION TO BE RECEIVED AT ITS FINAL DESTINATION WITHIN A REASONABLE PERIOD OF TIME. ALTHOUGH HE HAS NOT STATED WHAT TIME AND PROCEDURE SHOULD BE CONSIDERED REASONABLE CONSIDERING THE CONDITION EXISTING AT KELLY AFB, HE STATED THAT IT IS POSSIBLE TO TRAVEL THE DISTANCE BETWEEN THE BUILDINGS INVOLVED HERE IN LESS THAN TEN MINUTES AND, ALSO, THAT THE TELEX EQUIPMENT AT THE COMMUNICATIONS OFFICE IS CAPABLE OF COMMUNICATING DIRECTLY WITH THE TELEX FACILITY AT THE DP&P. HE THEREFORE ORIGINALLY CONCLUDED THAT YOUR MODIFICATION SHOULD BE CONSIDERED, AND RECOMMENDED THAT AWARD BE MADE TO YOU. HOWEVER, BEFORE THIS RECOMMENDATION WAS ACTED UPON THE BRUNO PROTEST WAS RECEIVED.

IT IS YOUR POSITION THAT YOUR BID MODIFICATION WAS SUBMITTED IN GOOD FAITH AND IN A TIMELY MANNER, AND YOU BELIEVE THAT SIMPSON IS COMMITTED TO COMPLY WITH ITS PROVISION IF THE GOVERNMENT CHOOSES TO ACCEPT IT. YOUR LETTER GOES ON TO EXPLAIN THAT YOU HAVE HAD PRIOR SATISFACTORY EXPERIENCES IN TRANSMITTING TELEX MODIFICATIONS TO THE IDENTICAL TELEX NUMBER AT KELLY AFB, WHICH WAS THE ONLY NUMBER AVAILABLE TO YOU AT THAT TIME. YOU STATE THAT THERE WAS NO INFORMATION AVAILABLE TO ALERT YOU OF THE POSSIBILITY THAT YOUR TELEX MODIFICATION WOULD NOT BE GIVEN PRIORITY TREATMENT, AS IS CUSTOMARY IN THE BUSINESS COMMUNITY. YOU CONCLUDE THAT THE GOVERNMENT MISHANDLED YOUR MODIFICATION AND THAT YOUR FIRM SHOULD NOT BE HELD RESPONSIBLE FOR IT.

WE HAVE ALSO NOTED THE STATEMENT IN YOUR LETTER WHICH SUGGESTS THAT YOUR TELEX MODIFICATION MAY HAVE BEEN MISHANDLED IF IT WAS NOT PLACED IN A SEALED ENVELOPE SO AS NOT TO REVEAL YOUR PRICES TO ANYONE HANDLING THE MESSAGE. WHILE THE RECORD DOES NOT INDICATE WHETHER OR NOT THIS PROCEDURE WAS FOLLOWED, WE FIND NO EVIDENCE TO SUPPORT A FINDING THAT YOUR MODIFICATION WAS REVEALED TO OTHER BIDDERS AND WE SEE NO REASON FOR ASSUMING THAT IT WAS. IN ANY EVENT SUCH A POSSIBILITY COULD READILY BE AVOIDED BY WORDING A MODIFICATION SO AS TO CITE MERELY THE AMOUNT BY WHICH THE PREVIOUSLY SUBMITTED BID IS TO BE CHANGED UP OR DOWN, WITHOUT DISCLOSING THE AMOUNT QUOTED THEREIN.

WHERE BIDS OR MODIFICATIONS ARE RECEIVED AT ONE PLACE BY THE GOVERNMENT FOR DELIVERY BY IT TO ANOTHER PLACE SPECIFIED IN THE INVITATION, OUR OFFICE HAS HELD THAT THE GOVERNMENT HAS A DUTY TO ESTABLISH PROCEDURES CALCULATED TO INSURE THAT THE PHYSICAL TRANSMISSION OF BIDS IS ACCOMPLISHED WITHIN A REASONABLE TIME AFTER RECEIPT. THE DETERMINATION OF WHAT CONSTITUTES A REASONABLE INTERNAL PROCEDURE AND TIME FOR TRANSMISSION AT ONE GOVERNMENT INSTALLATION IS NOT NECESSARILY FOR APPLICATION AT ALL INSTALLATIONS; RATHER, IT IS UNIQUELY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY INVOLVED. OUR ROLE MUST BE RESTRICTED TO DETERMINING WHETHER THE AGENCY POSITION IS ARBITRARY, CAPRICIOUS, OR UNSUBSTANTIATED. COMPARE, FOR EXAMPLE, B 144419, JANUARY 12, 1961, WITH B -148264, APRIL 10, 1962, AND MAY 17, 1962.

IN THE PRESENT CASE WE HAVE SERIOUS RESERVATIONS REGARDING THE LACK OF ANY PROCEDURE OTHER THAN ROUTINE MAIL DELIVERY AT KELLY AFB COMMUNICATIONS OFFICE FOR TRANSMITTING TELEX BID MODIFICATIONS TO DP&P. HOWEVER, WE RECOGNIZE, AS WE HAVE IN THE PAST, THAT AT INSTALLATIONS WHICH RECEIVE HUNDREDS OF TELEGRAMS DAILY IT MAY BE NECESSARY TO HANDLE TELEGRAMS WHICH ARE NOT MARKED URGENT IN A STANDARDIZED MANNER AND IN SUCH CIRCUMSTANCES THEIR IMMEDIATE TRANSMISSION TO THE PROPER OFFICE MAY NOT BE FEASIBLE. SEE B-144419, JANUARY 12, 1961. IN VIEW OF THE LARGE NUMBER OF MESSAGES PROCESSED EACH DAY AT THE KELLY AFB COMMUNICATIONS OFFICE TOGETHER WITH THE SIGNIFICANCE ATTACHED BY THE AIR FORCE TO THE LACK OF ANY PRIORITY DESIGNATION ON THE FACE OF YOUR TELEX MESSAGE, WE FIND SUFFICIENT EVIDENCE TO SUPPORT THE OFFICIAL DEPARTMENT OF THE AIR FORCE CONCLUSION THAT IT IS NOT REASONABLE TO EXPECT SUCH A MESSAGE TO HAVE BEEN COMMUNICATED TO THE PROPER OFFICE WITHIN THE 39 MINUTES BETWEEN 12:51 P.M. TO 1:30 P.M.

AS NOTED ABOVE, THE CONTRACTING OFFICER DOES NOT APPEAR TO HAVE CONSIDERED WHAT AMOUNT OF TIME IS REASONABLY NECESSARY FOR TRANSMISSION OF A TELEX MESSAGE TO THE PROPER OFFICE UNDER THE CONDITIONS EXISTING AT KELLY AFB COMMUNICATIONS OFFICE. WHILE YOU MAY NOT HAVE BEEN AWARE OF THE TIME NECESSARY FOR RECEIPT OF A TELEX MESSAGE, IT IS NEVERTHELESS THE BIDDER'S RESPONSIBILITY TO SEE THAT ITS BID OR MODIFICATION IS RECEIVED AT THE PLACE SPECIFIED PRIOR TO BID OPENING, AND WE BELIEVE THAT YOUR FAILURE TO INCLUDE IN YOUR MESSAGE ANY INDICATION OF A NEED FOR QUICK DELIVERY CONTRIBUTED MATERIALLY TO ITS LATE DELIVERY TO THE DP&P.

FOR THE REASONS STATED, IT DOES NOT APPEAR THAT YOUR TELEX MODIFICATION WAS RECEIVED LATE SOLELY BECAUSE OF THE GOVERNMENT'S MISHANDLING AND, THEREFORE, IT IS NOT ACCEPTABLE FOR CONSIDERATION.

GAO Contacts

Office of Public Affairs