B-139981, OCT. 30, 1959

B-139981, OCT. 30, 1959

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 20 AND JULY 11, 1959, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID UNDER ITEMS NOS. 1, 2, 3, AND 4 OF INVITATION FOR BIDS NO. AIV 41-014-59-188 ISSUED APRIL 29, 1959, BY THE PURCHASING AND CONTRACTING OFFICE, FORT BLISS, TEXAS. THE PROTEST IS BASED ON YOUR CONTENTION THAT YOUR BID, AS AMENDED BY A TELEGRAM, WAS THE LOWEST BID RECEIVED ON ITEMS 1, 2, 3, AND 4 OF THE INVITATION.

IN RESPONSE TO OUR REQUEST, THE DEPARTMENT OF THE ARMY HAS FURNISHED A REPORT IN THE MATTER, INCLUDING COPIES OF PERTINENT PAPERS.

UNDER THE INVITATION, BIDS WERE REQUESTED--- TO BE OPENED AT 10 A.M. MST, MAY 19, 1959--- FOR CURTAIN RODS AND RELATED ITEMS. YOU SUBMITTED A BID QUOTING UNIT PRICES OF $1.00 EACH OF ITEMS NOS. 1, 2, 3, AND 4 AND $4.50 ON ITEM NO. 5. THE EIGHT OTHER BIDS RECEIVED RANGED FROM UNIT PRICES OF $0.0475 TO $0.10 ON ITEM NO. 1; $0.1235 TO $0.20 ON ITEM NO. 2; $0.057 TO $0.10 ON ITEM NO. 3; $0.02375 TO $0.05 ON ITEM NO. 4; AND $4.17 TO $10 ON ITEM NO. 5.

PARAGRAPH 2 OF TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDED IN PART AS FOLLOWS:

"TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.'

IN ADDITIONAL BIDDING INFORMATION ATTACHED TO THE INVITATION IT IS STATED:

"BIDDERS ARE ADVISED THAT TELEGRAPHIC BIDS WILL NOT BE ACCEPTED.'

THE FILE SHOWS THAT AT 10:30 A.M. ON MAY 19 A TELEGRAM DATED MAY 18 WAS RECEIVED BY THE PURCHASING AND CONTRACTING OFFICE FROM YOU AS FOLLOWS:

"REBID NO. AIV 41-014-59-158 OPENING MAY 19, 1959 CHANGE PRICES ITEM 1 TO ?038, 2 - .0996, 3 - .0455, 4 - .025, 5 - $4.87 LETTER FOLLOWS.'

A CONFIRMING LETTER DATED MAY 18 WAS RECEIVED ON MAY 20. THERE IS NOTED THE STATEMENT IN THE LETTER OF JULY 2, 1959, FROM THE WESTERN UNION TELEGRAPH CO., COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER OF JULY 11, THAT THE TELEGRAM "WAS PROPERLY TRANSFERRED TO THE GOVERNMENT MESSENGER SERVICE AT FORT BLISS, TEX. AT 7:35 A.M. ON MAY 19TH.'

ALTHOUGH THE PRICES STATED IN THE TELEGRAM WERE THE LOWEST RECEIVED ON ITEMS NOS. 1, 2, 3, AND 4, YOUR BID WAS REJECTED AS BEING A TELEGRAPHIC BID SPECIFICALLY PROHIBITED BY THE TERMS OF THE INVITATION ON ON MAY 22 AWARD WAS MADE TO ANOTHER BIDDER ON THOSE ITEMS. IN HIS STATEMENT DATED JUNE 17, 1959, THE CONTRACTING OFFICER STATES:

"TELEGRAPHIC BID IS AS STATED THEREIN, A "REBID," RATHER THAN A BID MODIFICATION, CONSTITUTING AN ENTIRELY NEW BID ON ALL ITEMS AND THEREFORE NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. * * *"

THE DEPARTMENT OF THE ARMY EXPRESSES THE VIEW THAT THE CONTRACTING OFFICER ERRED IN TREATING YOUR TELEGRAM AS A NEW BID RATHER THAN A MODIFICATION OF THE ORIGINAL BID ON ITEMS NOS. 1, 2, 3, AND 4, WITH WITH WHICH VIEW WE AGREE. THE TELEGRAM CLEARLY WAS INTENDED AS A MODIFICATION OF THE ORIGINAL BID. THE TERM "REBID" IS COMMONLY USED IN TELEGRAMS AS MEANING "WITH REFERENCE TO BID.'

IT IS TO BE OBSERVED, HOWEVER, THAT SINCE YOUR TELEGRAM WAS NOT RECEIVED UNTIL 10:30 A.M. MAY 19 (30 MINUTES AFTER THE BID OPENING) IT DOES NOT COMPLY STRICTLY WITH THE ABOVE-QUOTED REQUIREMENT OF THE INVITATION THAT A TELEGRAPHIC MODIFICATION SHOULD BE RECEIVED "PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.' CONSEQUENTLY AND SINCE THE CONTRACTING OFFICER ACTED IN GOOD FAITH IN MAKING THE AWARD TO THE LOWEST RESPONSIBLE BIDDER SUBMITTING A TIMELY BID, THERE APPEARS NO PROPER BASIS FOR QUESTIONING THE AWARD AS MADE.