B-158563, JUN. 13, 1966

B-158563, JUN. 13, 1966

TO B AND W MECHANICAL CONTRACTORS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1966, ADDRESSED TO THE BUREAU OF YARDS AND DOCKS (NOW DESIGNATED NAVY FACILITIES ENGINEERING COMMAND), CHARLESTON, SOUTH CAROLINA, PROTESTING THE AWARD OF CONTRACT NBY 74094, INTERIM REPAIRS TO SECOND BATTALION BARRACKS, MARINE CORPS RECRUIT DEPOT, PARRIS ISLAND, SOUTH CAROLINA.

UNDER AN EARLIER INVITATION FOR THE PROJECT, BIDS WERE SCHEDULED FOR OPENING ON JANUARY 25, 1966, AT 11:00 A.M., EASTERN STANDARD TIME. THIS DATE YOU FILED A TELEGRAM AT THE CHARLESTON, SOUTH CAROLINA, WESTERN UNION OFFICE AT 10:39 A.M., INTENDING TO REDUCE YOUR BID PRICE FOR THE WORK. THE TELEGRAM, DELAYED IN TRANSMISSION, WAS NOT RECEIVED AT THE PARRIS ISLAND COMMUNICATION CENTER UNTIL 2:10 P.M., AND DID NOT REACH THE OFFICER IN CHARGE OF BID OPENING UNTIL THE FOLLOWING MORNING. THIS MODIFICATION WOULD HAVE MADE YOU THE LOW BIDDER, BUT IT WAS DETERMINED BY THE NAVAL FACILITIES ENGINEERING COMMAND (BUREAU OF YARDS AND DOCKS), AND THE OFFICER IN CHARGE OF CONSTRUCTION, THAT THE TELEGRAM, FILED 21 MINUTES BEFORE BID OPENING, WAS NOT FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED PRIOR TO BID OPENING BY NORMAL TRANSMISSION PROCEDURES.

IN A LETTER DATED FEBRUARY 21, 1966, ADDRESSED TO OUR OFFICE, YOU PROTESTED AWARD OF THE ORIGINAL CONTRACT TO ANYONE BUT YOURSELF. IT WAS THEREAFTER DETERMINED BY THE NAVAL FACILITIES ENGINEERING COMMAND (BUREAU OF YARDS AND DOCKS) TO REJECT ALL BIDS AND READVERTISE THE PROJECT UNDER REVISED SPECIFICATIONS. AS A RESULT, WE CLOSED OUR FILE ON THE MATTER WITHOUT DECIDING WHETHER YOUR TELEGRAPHIC BID MODIFICATION SHOULD HAVE BEEN CONSIDERED.

A REVISED INVITATION WAS ISSUED ON MARCH 18, 1966. BIDS WERE OPENED AT THE SCHEDULED TIME, 1:00 A.M., EASTERN STANDARD TIME, APRIL 5, 1966, AT THE MARINE CORPS DEPOT, PARRIS ISLAND, SOUTH CAROLINA. YOU SUBMITTED THE APPARENT LOW BID OF $176,539 FOR ITEM I, AND $171,539 FOR ITEM 2. 11:35 A.M. OF THAT MORNING THE OFFICER IN CHARGE OF CONSTRUCTION TELEPHONED THE BID OPENING OFFICE FOR ADVICE THAT A TELEGRAPHIC BID MODIFICATION HAD BEEN RECEIVED AT THE MARINE CORPS COMMUNICATIONS CENTER AT 11:27 A.M. THE TELEGRAM, FROM H. L. GROHNE COMPANY (HEREAFTER GROHNE), DECATUR, ILLINOIS, REDUCED THE FIRM'S BID PRICES OF $198,730 FOR ITEM 1 AND $191,730 FOR ITEM 2 BY $60,000 AND $27,000 RESPECTIVELY, THEREBY MAKING GROHNE THE LOWEST BIDDER ON BOTH ITEMS.

THE RECORD ESTABLISHES THAT GROHNE'S TELEGRAPHIC BID MODIFICATION WAS FILED WITH THE DECATUR, ILLINOIS, OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY, AT 9:07 A.M., CENTRAL STANDARD TIME 10:07 A.M., E.S.T.). THE MANAGER OF THE WESTERN UNION OPERATING DEPARTMENT IN DECATUR, ILLINOIS, STATES THAT IT WOULD BE REASONABLE TO EXPECT DELIVERY OF THE MESSAGE, MARKED FOR RUSH HANDLING, PRIOR TO 10:00 A.M., CENTRAL STANDARD TIME (11:00 A.M., E.S.T.) AND THAT BECAUSE OF A TORNADO WHICH HAD SWEPT THROUGH FLORIDA ON APRIL 3, 1966, WESTERN UNION FACILITIES IN THE SOUTHERN STATES WERE DISRUPTED AND THE REMAINING FACILITIES WERE OVERTAXED WITH MESSAGES TO THE STRICKEN AREA. THEREFORE, DELIVERY OF GROHNE'S TELEGRAM WAS DELAYED AND WAS NOT DELIVERED UNTIL AFTER BID OPENING.

BASED UPON THIS STATEMENT OF THE WESTERN UNION COMPANY IT WAS DETERMINED BY THE NAVAL FACILITIES ENGINEERING COMMAND (BUREAU OF YARDS AND DOCKS) THAT THE MODIFICATION WAS LATE AS A RESULT OF A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND, PURSUANT TO THE INVITATION PROVISIONS, SHOULD BE ACCEPTED.

THE INVITATION CONTAINED THE FOLLOWING PROVISION:

"7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. (A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY * * * TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; * * *.'

AWARD WAS MADE TO GROHNE ON APRIL 26, 1966.

YOU HAVE ASSERTED THAT THE ACCEPTANCE OF GROHNE'S LATE TELEGRAPHIC BID MODIFICATION IS INCONSISTENT WITH THE REJECTION OF YOUR LATE TELEGRAPHIC BID MODIFICATION FOR THE INVITATION OPENED JANUARY 25, 1966. AS INDICATED PREVIOUSLY, SINCE ALL BIDS WERE REJECTED UNDER THE EARLIER INVITATION TO PERMIT READVERTISING UNDER REVISED SPECIFICATIONS, WHETHER YOUR TELEGRAM SHOULD HAVE BEEN CONSIDERED AS TIMELY FILED BECAME ACADEMIC AND UNNECESSARY TO DECIDE.

THE ONLY ISSUE BEFORE US IS WHETHER THE CONTRACTING OFFICER WAS CORRECT IN DETERMINING THAT THE GROHNE TELEGRAM, FILED 53 MINUTES BEFORE BID OPENING, WAS FILED IN SUFFICIENT TIME FOR THE TELEGRAM TO HAVE BEEN DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURES. IT SHOULD BE NOTED THAT THE GREATER DISTANCE INVOLVED IN FORWARDING THE GROHNE TELEGRAM SHOULD NOT APPRECIABLY AFFECT THE TRANSMISSION TIME.

THE TEST OF WHETHER A TELEGRAPHIC BID MODIFICATION RECEIVED LATE IS ACCEPTABLE OR NOT IS THREEFOLD. FIRST, THE BID MODIFICATION MUST HAVE BEEN FILED IN TIME FOR RECEIPT BY BID OPENING TIME BY NORMAL TRANSMISSION PROCEDURE. SECOND, THERE MUST BE A SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER. AND THIRD, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY ENCOUNTERED UNDER NORMAL TRANSMISSION PROCEDURE. SEE 40 COMP. GEN. 290 (1960); 39 COMP. GEN. 586 (1960). THUS A LATE TELEGRAPHIC MODIFICATION MUST MEET ALL THREE OF THE ELEMENTS OF THE TEST IN ORDER TO BE ACCEPTABLE. IT HAS BEEN DETERMINED THAT THE GROHNE BID MODIFICATION WAS FILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN NORMAL TRANSMISSION PROCEDURE, THAT THE DELAY WAS CAUSED SOLELY BY THE TELEGRAPH COMPANY, AND THAT THE DELAY WAS ABNORMAL.

IN VIEW OF THE FOREGOING WE FIND NO LEGAL OBJECTION TO THE DETERMINATION TO ACCEPT THE TELEGRAPHIC MODIFICATION OF H. L. GROHNE COMPANY. YOUR PROTEST MUST, THEREFORE, BE DENIED.