B-159596, AUG. 25, 1966

B-159596, AUG. 25, 1966

TO LAND MANUFACTURING, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 30 AND LETTER OF JULY 1, 1966, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT UNDER DEPARTMENT OF THE AIR FORCE INVITATION FOR BIDS NO. 41-608-66-1730, TO ANY OTHER BIDDER.

THE INVITATION, ISSUED ON MAY 27, 1966, SOLICITED BIDS UNDER THE ADVERTISED PROCUREMENT PROCEDURES FOR THE FURNISHING OF HGU-2A/P FLYING HELMETS OF TWO SIZES UNDER ITEMS 1 AND 2 AND SET ASIDE EQUIVALENT QUANTITIES OF EACH ITEM FOR EXCLUSIVE PROCUREMENT PARTICIPATION BY SURPLUS LABOR CONCERNS.

ON THE REVERSE SIDE OF DD FORM 1490 OF THE INVITATION, THE FOLLOWING PROVISIONS WERE SET FORTH:

"2. SUBMISSION OF OFFERS.

"/B) IF THIS SOLICITATION IS ADVERTISED, TELEGRAPHIC OFFERS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE SOLICITATION; HOWEVER, OFFERS MAY BE MODIFIED BY TELEGRAPHIC NOTICE, PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO HOUR AND DATE SPECIFIED FOR RECEIPT. * * *.

"3. MODIFICATION OR WITHDRAWAL OF OFFERS.

"/A) IF THIS SOLICITATION IS ADVERTISED, OFFERS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED PRIOR TO THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS. * * *.

"4. LATE OFFERS AND MODIFICATIONS OR WITHDRAWALS.

"/A) OFFERS (AND MODIFICATIONS OR WITHDRAWALS THEREOF, IF THIS SOLICITATION IS ADVERTISED) RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICITATION AFTER THE EXACT HOUR * * * AND DATE SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS:

"/I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (II) THEY ARE SENT BY * * * TELEGRAPH IF AUTHORIZED; AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY * * * BY THE TELEGRAPH COMPANY FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; * * *.'

FOUR BIDS WERE RECEIVED AND OPENED AT THE PROCURING ACTIVITY AT THE SCHEDULED BID OPENING TIME OF 1:30 P.M., CST, JUNE 27, 1966, AS PROVIDED IN THE INVITATION. AT 1:37 P.M., CST, ON THE SAME DATE THE CONTRACTING OFFICER RECEIVED A TELEGRAPHIC MODIFICATION COVERING CHANGES IN THE PRICES OF THE BID OF THE GENTEX CORPORATION. AS A RESULT OF THIS MODIFICATION YOUR FIRM WAS DISPLACED AS THE LOW BIDDER.

IT IS YOUR CONTENTION THAT SINCE TELEGRAPHIC BIDS WERE NOT AUTHORIZED BY THE INVITATION THE PROVISIONS OF PARAGRAPH 4 (A) OF THE INVITATION WERE NOT APPLICABLE AND THAT TELEGRAPHIC MODIFICATIONS WERE FOR CONSIDERATION ONLY UNDER PARAGRAPH 3 (A) WHICH PRECLUDED CONSIDERATION OF TELEGRAPHIC MODIFICATIONS RECEIVED SUBSEQUENT TO BID OPENING.

WHILE WE AGREE THAT TELEGRAPHIC BIDS WERE NOT AUTHORIZED, PARAGRAPH 2 (B), QUOTED ABOVE, SPECIFICALLY AUTHORIZES THE TELEGRAPHIC MODIFICATION OF OFFERS OTHERWISE ACCEPTABLE. THE USE OF TELEGRAMS FOR MODIFICATION OF SUCH OFFERS IS CONFIRMED BY PARAGRAPH 3 (A). THIS BEING TRUE, CONTRARY TO YOUR CONTENTION, WE THINK THAT THE PROVISIONS OF PARAGRAPH 4 (A) ARE FOR CONSIDERATION. THAT PARAGRAPH, AS WELL AS SECTION 2.305 OF THE ARMED SERVICES PROCUREMENT REGULATION, SPECIFICALLY PROVIDES THAT MODIFICATIONS OF BIDS RECEIVED AFTER THE EXACT HOUR SPECIFIED FOR RECEIPT MAY BE CONSIDERED IF THEY ARE RECEIVED BEFORE THE AWARD IS MADE AND IF IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE.

IN THAT REGARD, THE RECORD SHOWS THAT THE OFFEROR FURNISHED THE TELEGRAM CONCERNED TO THE SCRANTON OFFICE OF WESTERN UNION AND THAT OFFICE DISPATCHED THE TELEGRAM AT 12:15 P.M., EDT, ON JUNE 27, 1966, TWO HOURS AND FIFTEEN MINUTES PRIOR TO THE SCHEDULED TIME FOR BID OPENING. HOWEVER, THE WESTERN UNION OFFICE AT SAN ANTONIO, TEXAS, DID NOT TRANSMIT THE TELEGRAM TO THE PROCUREMENT ACTIVITY UNTIL SIX MINUTES AFTER THE SCHEDULED TIME FOR BID OPENING. THE LATTER OFFICE SPECIFICALLY STATES THAT THE MESSAGE WAS DELAYED INADVERTENTLY IN ITS TIME SENDING SEQUENCE TO THE PROCUREMENT ACTIVITY. IT HAS BEEN DETERMINED BY THE CONTRACTING OFFICER THAT THIS TELEGRAM WAS FILED WITH WESTERN UNION INSUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL PROCEDURES SO AS NOT TO HAVE BEEN LATE. THE RECORD SUPPORTS THIS DETERMINATION AND WE AGREE WITH THE CONCLUSION OF THE CONTRACTING OFFICER.

IN VIEW OF THE FOREGOING WE SEE NO LEGAL BASIS FOR OBJECTING TO THE CONSIDERATION OF THE BID OF GENTEX CORPORATION AS MODIFIED BY THE TELEGRAM.