B-144419, JAN. 12, 1961

B-144419, JAN. 12, 1961

TO KEMP, SMITH, BROWN, GOGGIN AND WHITE:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF NOVEMBER 10, 1960, PROTESTING ON BEHALF OF GOLDBERG AND LAVIS, INCORPORATED, THE REFUSAL OF THE CONTRACTING OFFICER TO ACCEPT FOR CONSIDERATION A TELEGRAM MODIFYING A PREVIOUSLY MAILED BID.

INVITATION FOR BIDS NO. ORD-29-040-61-45, ISSUED ON SEPTEMBER 20, 1960, REQUESTED BIDS TO BE SUBMITTED TO THE PURCHASING AND CONTRACTING DIVISION, BUILDING NR. T-108, WHITE SANDS MISSILE RANGE, NEW MEXICO, TO BE OPENED AT 1:30 P.M., M.S.T., ON OCTOBER 21, 1960, FOR THE CONSTRUCTION OF WIND MEASUREMENT BUILDING AT SMALL MISSILE RANGE FOR MISSILE GEOPHYSICS. PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, AS AMENDED, ADVISED ALL BIDDERS AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF THE BIDS WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE AWARD IS MADE AND (I) ARE SUBMITTED BY MAIL (OR BY TELEGRAPH IF AUTHORIZED), AND (II) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (A) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (B) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. HOWEVER, A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED. (APR. 1960) "

THE RECORD SHOWS THAT THE BIDS WERE OPENED AT 1:30 P.M., M.S.T., ON OCTOBER 21, 1960, AS SCHEDULED. SUBSEQUENTLY, AT 2:57 P.M., THE CONTRACTING OFFICER RECEIVED A WESTERN UNION TELEGRAM FROM GOLDBERG AND LAVIS, REDUCING ITS BID PRICE BY $2,950. IF THE TELEGRAPHIC MODIFICATION OF THE BID WAS ENTITLED TO CONSIDERATION UNDER THE ABOVE PROVISION, THE BID OF GOLDBERG AND LAVIS AS MODIFIED WAS THE LOWEST RECEIVED.

THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAPHIC MODIFICATION OF THE BID WAS DISPATCHED FROM EL PASO, TEXAS, AT 12:10 P.M., M.S.T., ON OCTOBER 21, 1960 (1 HOUR AND 20 MINUTES PRIOR TO THE SCHEDULED BID OPENING), AND WAS RECEIVED AT THE COMMUNICATION CENTER, WHITE SANDS MISSILE RANGE, NEW MEXICO, AT 12:30 P.M. THE TELEGRAM REFERRED TO THE INVITATION NUMBER BUT IT DID NOT STATE THE TIME OF OPENING OR OTHERWISE INDICATE SPECIAL URGENCY OF DELIVERY. IT IS REPORTED THAT THE COMMUNICATION CENTER IS OPERATED BY THE U.S. ARMY SIGNAL CORPS ON A REIMBURSABLE BASIS UNDER CONTRACT WITH WESTERN UNION. SOMETIME AFTER12:30 P.M., THE TELEGRAM WAS TRANSMITTED TO THE AG MESSAGE CENTER, ARRIVING THERE AFTER 2:00 P.M. THE PURCHASING AND CONTRACTING OFFICE MESSENGER ON REGULARLY SCHEDULED RUNS PICKS UP MESSAGES AT THE MESSAGE CENTER AT 12:30 P.M., AND 2:30 P.M. THE TELEGRAM HAD NOT BEEN RECEIVED AT THE AG MESSAGE CENTER WHEN THE 12:30 PICK-UP WAS MADE, BUT WAS PICKED UP AT 2:30 P.M., AND DELIVERED TO THE PURCHASING AND CONTRACTING OFFICE AT 2:57 P.M., 1 HOUR AND 27 MINUTES AFTER BID OPENING. NO SPECIAL MESSENGER SERVICE IS MAINTAINED BY THE GOVERNMENT FOR WESTERN UNION TELEGRAMS AT WHITE SANDS.

BASED UPON THE ABOVE FACTS, THE CONTRACTING OFFICER CONCLUDED THAT THE DELAY IN RECEIPT OF THE TELEGRAPHIC MODIFICATION OF THE BID SUBMITTED BY GOLDBERG AND LAVIS, INCORPORATED, WAS NOT DUE TO MISHANDLING ON THE PART OF EITHER THE GOVERNMENT OR THE TELEGRAPH COMPANY, AND WAS THEREFORE NOT ACCEPTABLE FOR CONSIDERATION.

YOU PROTEST SUCH DETERMINATION ON THE BASIS THAT THE TELEGRAM WAS SENT IN SUFFICIENT TIME BEFORE THE OPENING TO HAVE BEEN RECEIVED UNLESS MISHANDLED BY THE TELEGRAPH COMPANY OR THE GOVERNMENT, AND THAT ANY LABEL PLACED UPON THE TELEGRAM WOULD HAVE BEEN SUPERFLUOUS, SINCE A TELEGRAM ITSELF CONNOTES URGENCY.

IN DECISION OF FEBRUARY 12, 1960, 39 COMP. GEN. 586, IT WAS STATED, IN PART, AS FOLLOWS:

"* * * THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS OF BIDS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. EXCEPTIONS TO THE RULE TEND TO PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND IT IS THEREFORE INCUMBENT UPON ANY BIDDER WHO SEEKS TO INVOLVE AN EXCEPTION TO PROVE THAT HE IS ENTIRELY WITHOUT FAULT OR NEGLIGENCE IN TRANSMITTING A LATE MODIFICATION TO HIS BID. AS INDICATED AT 35 COMP. GEN. 426, THE LATE BIDDER'S LACK OF KNOWLEDGE OF OTHER BIDS IS NOT ENOUGH. THE TELEGRAPHIC BID MODIFICATION MUST HAVE BEEN DEPOSITED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS, AND WHERE THERE IS SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE, THE BURDEN OF PROOF OF WHICH IS PLACED UPON THE BIDDER. UNDER THIS EXCEPTION IT IS NOT SUFFICIENT FOR A LATE BIDDER TO SHOW THAT HIS MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER OPTIMUM CONDITIONS. HE MUST SHOW THAT HIS MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL, OR FORESEEABLE DELAYS, AND THAT ITS FAILURE TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION.'

IT IS THE BIDDER'S RESPONSIBILITY TO SEE THAT HIS BID, OR MODIFICATION THERETO, IS RECEIVED AT THE PLACE SPECIFIED PRIOR TO THE TIME SET FOR THE OPENING. THE FACT THAT THERE MAY NOT BE AS GOOD MAIL OR TELEGRAPH SERVICE TO THAT PARTICULAR PLACE AS MIGHT BE DESIRED WILL NOT RELIEVE THE BIDDER OF SUCH RESPONSIBILITY.

WITH RESPECT TO THE CONTENTION THAT A TELEGRAM ITSELF CONNOTES URGENCY AND ACCORDINGLY ANY LABEL PLACED UPON THE TELEGRAM WOULD HAVE BEEN SUPERFLUOUS, WE ARE ADVISED THAT WHITE SANDS MISSILE RANGE, NEW MEXICO, EMPLOYS APPROXIMATELY 8,500 EMPLOYEES, COVERS AN AREA OF 4,000 SQUARE MILES, AND RECEIVES HUNDREDS OF TELEGRAMS DAILY. IN SUCH CIRCUMSTANCES, UNLESS A TELEGRAM IS URGENT ON ITS FACE OR IS SO INDICATED, TELEGRAMS MUST BE HANDLED ON SOME STANDARDIZED BASIS. IT IS REPORTED THAT IF THE TELEGRAM HAD BEEN ADDRESSED IN ACCORDANCE WITH THE DIRECTIONS FOR SUBMITTING BIDS AND HAD SHOWN IN ADDITION TO THE INVITATION NUMBER THE TIME WHEN THE BIDS WERE TO BE OPENED, THE INFORMATION WOULD HAVE BEEN TELEPHONED TO THE PURCHASING AND CONTRACTING OFFICE AND A SPECIAL MESSENGER DISPATCHED TO PICK IT UP. HOWEVER, THE TELEGRAM AS SENT DID NOT INDICATE ON ITS FACE A SPECIFIC TIME LIMIT FOR DELIVERY OR OTHERWISE GIVE NOTICE THAT HANDLING ON OTHER THAN THE ESTABLISHED TWO-HOUR PICK-UP SCHEDULE WAS REQUIRED.

IN VIEW OF THE FOREGOING, WE MUST AGREE WITH THE FINDINGS OF THE CONTRACTING OFFICER THAT THE DELAY IN THE RECEIPT OF THE TELEGRAPHIC MODIFICATION OF THE BID SUBMITTED BY GOLDBERG AND LAVIS, INCORPORATED, WAS NOT DUE TO EITHER OF THE EXCEPTED CAUSES STATED IN THE CLAUSE OF THE INSTRUCTIONS QUOTED ABOVE AND, THEREFORE, SINCE THE MODIFICATION WAS NOT RECEIVED PRIOR TO THE BID OPENING, IT WAS NOT ACCEPTABLE FOR CONSIDERATION.