B-160600, FEB. 16, 1967

B-160600, FEB. 16, 1967

TO THE COMMANDANT, UNITED STATES MARINE CORPS:

REFERENCE IS MADE TO LETTER CH-LED DATED JANUARY 18, 1967, REPORTING ON THE PROTEST OF THE SUN ELECTRIC CORPORATION AGAINST THE CONSIDERATION OF THE BID OF THE FERMONT DIVISION, DYNAMICS CORPORATION OF AMERICA, UNDER INVITATION FOR BIDS 162, COVERING THE FURNISHING OF GENERATOR SETS AND RELATED TECHNICAL AND PROVISIONING DOCUMENTATION AND INSTRUCTIONAL SERVICES.

SUN ELECTRIC CONTENDS THAT AN AWARD SHOULD NOT BE MADE TO FERMONT FOR EITHER OF TWO REASONS--- FIRST, BECAUSE THE TELEGRAPHIC MODIFICATION WHICH MAKES FERMONT THE APPARENT LOW BIDDER ARRIVED LATE INTO MARINE CORPS HEADQUARTERS; OR, SECOND, BECAUSE FERMONT FAILED TO SPECIFY IN THE SPACE PROVIDED ON PAGE 37 OF THE INVITATION THE RATE PER MILE FOR TRAVEL BY PRIVATE AUTOMOBILE INCIDENT TO CERTAIN TECHNICAL SERVICES TO BE PERFORMED.

THE INVITATION PROVIDED THAT BIDS SHOULD BE ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS (CODE CSG-5E), HEADQUARTERS U.S. MARINE CORPS, NAVY ANNEX BUILDING, WASHINGTON, D.C. 20380. BY AMENDMENT 4 TO THE INVITATION, THE BID OPENING TIME WAS SET FOR 2 P.M. ON NOVEMBER 7, 1966. ON THE BASIS OF THE BIDS AND MODIFICATIONS RECEIVED UP TO THAT TIME IN THE DESIGNATED OFFICE, SUN ELECTRIC WAS THE APPARENT LOW BIDDER. ABOUT 2:30 P.M. ON THAT DAY, A TELEGRAPHIC MODIFICATION WAS RECEIVED IN THE MARINE CORPS HEADQUARTERS FROM FERMONT REDUCING ITS BID BY AN AMOUNT WHICH WOULD MAKE IT THE APPARENT LOW BIDDER. IF THE FERMONT TELEGRAPHIC MODIFICATION IS CONSIDERED, ITS BID IS EVALUATED AT $1,940,580.46, WHEREAS THE SUN ELECTRIC BID IS EVALUATED AT $1,984,221.60.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-305 PROVIDES THAT MODIFICATIONS OF BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE LATE MODIFICATIONS AND ARE SUBJECT TO THE LATE BID RULES SET FORTH IN ASPR 2- 303. THE LATTER SECTION PROVIDES THAT A LATE TELEGRAPHIC BID SHALL BE CONSIDERED FOR AWARD ONLY IF IT IS RECEIVED PRIOR TO AWARD AND THE LATENESS IS DUE EITHER TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE GOVERNMENT INSTALLATION, IN THE ABSENCE OF WHICH IT WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED.

THE LATE TELEGRAPHIC MODIFICATION IN THIS CASE WAS ADDRESSED BY FERMONT TO THE OFFICE DESIGNATED IN THE INVITATION TO RECEIVE BIDS AND IT IS STATED ON ITS FACE THAT IT WAS FOR INVITATION 162 OPENING AT 2 P.M. ON NOVEMBER 7, 1966. THE TELEGRAM WAS FILED AT 12:18 P.M. AT THE WESTERN UNION OFFICE IN ALEXANDRIA, VIRGINIA. TELEGRAMS FROM ALEXANDRIA, VIRGINIA, TO THE MARINE CORPS HEADQUARTERS ARE ROUTED VIA THE WESTERN UNION PERFORATION CENTER IN CINCINNATI, OHIO, TO THE UNITED STATES NAVAL COMMUNICATIONS CENTER, WASHINGTON, D.C., WHICH, IN TURN, TRANSMITS THE TELEGRAMS TO HEADQUARTERS. FOLLOWING THIS PROCEDURE, THE FERMONT TELEGRAM WAS RECEIVED AT THE COMMUNICATIONS CENTER AT 1:40 P.M., 20 MINUTES BEFORE BID OPENING TIME, BUT THE CENTER DID NOT SEND IT FORWARD TO MARINE CORPS HEADQUARTERS UNTIL 2:30 P.M., OR 30 MINUTES AFTER BID OPENING. THE JANUARY 18 LETTER INDICATES THAT THE HEAVY VOLUME OF OFFICIAL MESSAGE TRAFFIC BROUGHT ON BY THE PRESENT WORLD CONDITIONS WAS THE REASONS FOR THE DELAYED HANDLING BY THE COMMUNICATIONS CENTER. IT IS STATED ALSO THAT THE BIDDER APPEARS TO HAVE FILED ITS TELEGRAPHIC BID MODIFICATION IN SUFFICIENT TIME TO BE RECEIVED PRIOR TO OPENING OF BIDS UNDER NORMAL CONDITIONS. IN THIS CONNECTION, MARINE CORPS REPRESENTATIVES RECENTLY HAVE ADVISED US INFORMALLY THAT A TELEGRAPHIC MESSAGE COULD BE RELAYED FROM THE COMMUNICATIONS CENTER TO THE MARINE CORPS HEADQUARTERS AND DELIVERED TO THE CODE DESIGNATED IN THE INVITATION IN A MATTER OF MINUTES. HOWEVER, THEY ALSO ADVISE THAT IT IS NOT UNUSUAL FOR TELEGRAPHIC MESSAGES BETWEEN THE COMMUNICATIONS CENTER AND HEADQUARTERS TO BE DELAYED FOR DAYS BECAUSE OF THE VOLUME OF MESSAGES AND MILITARY PRIORITIES. BASED ON THE HEAVY VOLUME CARRIED BY THE CENTER AND THE TIME WITHIN WHICH SUCH TRANSMISSION COULD BE ACCOMPLISHED BETWEEN THE CENTER AND HEADQUARTERS, IT HAS BEEN ADMINISTRATIVELY RECOMMENDED THAT FERMONT'S BID AS TELEGRAPHICALLY MODIFIED BE CONSIDERED FOR AWARD.

THE ACTUAL TRANSMISSION TIME FOR THE TELEGRAM BETWEEN THE WESTERN UNION OFFICE AND THE NAVAL COMMUNICATIONS CENTER WAS 1 HOUR AND 22 MINUTES. THERE IS NOTHING IN THE RECORD TO INDICATE THAT SUCH TRANSMISSION TIME WAS DUE TO A DEPARTURE FROM THE REGULAR ROUTINE OF THE TELEGRAPH COMPANY. ASSUME THEREFORE THAT THE VOLUME OF BUSINESS WAS SO HEAVY THAT MESSAGES COULD NOT MOVE WITH ORDINARY DISPATCH. IN B-159529, JULY 6, 1966, OUR OFFICE HELD THAT WHERE A DELAY IN DELIVERY BY WESTERN UNION OF A TELEGRAPHIC MODIFICATION WAS DUE TO THE HEAVY LOAD OF THE COMPANY'S BUSINESS, THE BIDDER HAD TO BEAR THE RESPONSIBILITY FOR THE DELAY. SINCE THERE WERE 20 MINUTES REMAINING FOR DELIVERY AFTER RECEIPT BY THE COMMUNICATIONS CENTER, THE QUESTION, THEREFORE, IS WHETHER THERE WAS MISHANDLING OF THE TELEGRAM BY THE GOVERNMENT WITH A RESULTING DELAY IN RECEIPT BY THE DESIGNATED OFFICE.

ON THE QUESTION OF GOVERNMENT HANDLING, OUR OFFICE HAS INDICATED THAT IF A BID OR MODIFICATION IS RECEIVED LATE AT THE PLACE SPECIFIED IN THE INVITATION, IT IS NOT SUFFICIENT TO SHOW THAT IT WAS RECEIVED AT SOME INTERMEDIATE GOVERNMENT POINT PRIOR TO BID OPENING. B-144419, JANUARY 12, 1961, AND B-155061, OCTOBER 9, 1964. HOWEVER, WHERE BIDS 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. 42 COMP. GEN. 508, 43 ID. 317 AND B 152545, OCTOBER 18, 1963. THUS, WHERE A TELEGRAPHIC MODIFICATION WAS RECEIVED AT A GOVERNMENT COMMUNICATIONS OFFICE 35 MINUTES BEFORE BID OPENING AND WAS RECEIVED BY THE CONTRACTING OFFICER 29 MINUTES AFTER BID OPENING--- WHEN THE AVERAGE TIME FOR THE COMMUNICATIONS OFFICE TO DELIVER A TELEGRAM TO THE PROCUREMENT OFFICE WAS 15 MINUTES--- OUR OFFICE CONCURRED WITH THE ADMINISTRATIVE VIEW THAT THE TELEGRAPHIC MODIFICATION WAS RECEIVED LATE DUE TO MISHANDLING BY THE GOVERNMENT AND THAT THE MODIFICATION SHOULD BE CONSIDERED FOR AWARD. 155247, DECEMBER 21, 1964. SEE, ALSO, B-159646, SEPTEMBER 23, 1966; B- 151063, APRIL 24, 1963; AND B-152173, OCTOBER 2, 1963. MOREOVER, WHERE THE POST OFFICE ATTEMPTED DELIVERY OF AN AIRMAIL SPECIAL DELIVERY BID ON SUNDAY, THE DAY BEFORE THE BID OPENING, AND THE INSTRUCTIONS AT THE GOVERNMENT INSTALLATION PRECLUDED GUARDS FROM ACCEPTING MAIL SO THAT THE POST OFFICE HAD TO REDELIVER THE BID THE FOLLOWING DAY AND DID NOT DO SO UNTIL AFTER BID OPENING, OUR OFFICE HELD THAT THE BID SHOULD BE CONSIDERED FOR AWARD. B-157176, AUGUST 30, 1965.

IN THE IMMEDIATE CASE, IT IS NOT NECESSARY TO PASS UPON THE QUESTION WHETHER THE GOVERNMENT MISHANDLED THE TELEGRAPHIC MODIFICATION. WE NOTE THAT THERE IS AN ABSENCE OF SPECIAL PROCEDURES AT THE NAVAL COMMUNICATIONS CENTER TO HANDLE BID MODIFICATION TELEGRAMS, AND THAT THE CENTER HANDLES AN UNUSUALLY HEAVY VOLUME OF PRIORITY MESSAGES DUE TO THE STATE OF WORLD AFFAIRS. WHILE IT HAS BEEN INDICATED INFORMALLY THAT UNDER IDEAL CONDITIONS TRANSMISSIONS BY THE GOVERNMENT COULD BE ACCOMPLISHED IN A MATTER OF MINUTES, WE CANNOT SAY, AND THE RECORD DOES NOT ESTABLISH, THAT THE PERIOD OF 20 MINUTES REMAINING TO PROCESS AND TRANSMIT THE TELEGRAM TO THE DESIGNATED OFFICE ON THE AFTERNOON OF NOVEMBER 7, 1966, WAS ADEQUATE OR REPRESENTED A NORMAL TRANSMISSION TIME UNDER THE CIRCUMSTANCES. SEE ASPR 2-303.2 (III) WHICH REQUIRES THAT EVIDENCE BE PRESENTED TO ESTABLISH THAT A TELEGRAM WOULD HAVE ARRIVED ON TIME IN THE ABSENCE OF MISHANDLING. THE RECEIVING TELEGRAPHER AT THE CENTER MUST READ THE ADDRESS AND TAKE STEPS TO REROUTE THE TELEGRAM. THE SECOND RECEIVING TELEGRAPHER MUST ALSO READ THE ADDRESS AND THEN TAKE STEPS TO SEE THAT IT IS COMMUNICATED TO THE APPROPRIATE OFFICE. AND, OF COURSE, UNDER ORDINARY CONDITIONS, THERE ARE BOUND TO BE A NUMBER OF MESSAGES ON THE TIELINES AND NOT JUST A SINGLE MESSAGE. THE AMOUNT OF VOLUME ALSO IS LIKELY TO VARY ACCORDING TO THE TIME OF DAY. ADDITIONALLY, THE SERVICE MAY WELL DEPEND UPON WHETHER THERE ARE SOME MESSAGES REQUIRING MORE EXPEDITIOUS HANDLING BECAUSE OF MILITARY PRIORITIES. IN LINE WITH THE FOREGOING, SEE B-154451, AUGUST 5, 1964, WHERE THE SENDER OF A LATE TELEGRAPHIC MODIFICATION CONTENDED THAT THE MESSAGE COULD HAVE BEEN HANDLED BY THE GOVERNMENT IN ABOUT 4 MINUTES BUT WHERE OUR OFFICE EXPRESSED DOUBT THAT 20 MINUTES WOULD HAVE BEEN AN ADEQUATE TIME SINCE ANOTHER TELEGRAPHIC MESSAGE HANDLED AROUND THE SAME TIME HAD TAKEN 26 MINUTES. IN THE FACE OF THAT DOUBT, WE FELT THAT IT WAS SOMETHING LESS THAN "CLEARLY AND CONVINCINGLY ESTABLISHED" THAT 20 MINUTES WAS ADEQUATE TIME FOR GOVERNMENT HANDLING. UNDER THOSE CIRCUMSTANCES, WE CONCLUDED THAT THE BIDDER HAD TO BEAR THE RESPONSIBILITY FOR THE LATE RECEIPT OF THE TELEGRAM. WE FEEL THAT THE SAME REASONING IS APPLICABLE HERE.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE LATE TELEGRAPHIC BID MODIFICATION FROM FERMONT SHOULD NOT BE CONSIDERED IN THE EVALUATION OF BIDS. ON THIS CONCLUSION, WE SEE NO REASON TO CONSIDER THE SECOND POINT OF PROTEST.