B-163760, MAY 16, 1968

TO LEWIS, MACDONALD AND VARIAN:

REFERENCE IS MADE TO YOUR BRIEF SUBMITTED TO OUR OFFICE ON MARCH 20, 1968, PROTESTING, ON BEHALF OF STEWART AVIONICS, INC. (STEWART), AGAINST THE CONTEMPLATED AWARD OF A CONTRACT TO HENRY SPEN AND CO., INC. (SPEN), UNDER INVITATION FOR BIDS NO. N00383-68-B-0617, ISSUED BY THE DEPARTMENT OF THE NAVY, AVIATION SUPPLY OFFICE (ASO), PHILADELPHIA, PENNSYLVANIA.

THE INVITATION, ISSUED JANUARY 30, 1968, SOLICITED BIDS FOR THE PURCHASE OF 52 UNITS EACH DESCRIBED AS,"ENCLOSURE-GTE85-1" (ITEM 1), AND ACCOMPANYING "HANDBOOK OF OPERATION, SERVICE AND OVERHAUL INSTRUCTION" (ITEM2). THE INVITATION PROVIDED THAT AWARD WOULD BE MADE TO THE OVERALL LOW BIDDER UNDER ITEMS 1 AND 2, AND THAT BIDS WERE TO BE OPENED AT 10:00 A.M., E.S.T., ON FEBRUARY 29, 1968.

THE RECORD INDICATES THAT THE FOLLOWING TWO BIDS WERE SUBMITTED BY THE PRESCRIBED TIME IN RESPONSE TO THE INVITATION:

BIDDER ITEM 1 ITEM 2 TOTAL

------- ------ ------ ----- HENRY SPEN AND CO., INC.

$4,000 $1,250 $209,250 STEWART AVIONICS, INC. 3,311 350

172,522

BY TELEGRAM DATED FEBRUARY 28, 1968, SPEN REDUCED ITS UNIT PRICE OF ITEM 1 BY $846, THEREBY MAKING ITS MODIFIED TOTAL BID PRICE OF $165,258 THE LOWEST BID RECEIVED UNDER THE INVITATION.

YOU CONTEND THAT SPEN'S TELEGRAPHIC MODIFICATION SHOULD NOT BE CONSIDERED IN EVALUATION OF BIDS BECAUSE IT WAS NOT RECEIVED BY THE PROCURING AGENCY UNTIL 7:22 P.M. ON FEBRUARY 29, 1968, ALMOST 9 AND ONE-HALF HOURS AFTER BID OPENING, AND THAT THE LATE RECEIPT OF THE MODIFICATION WAS DUE TO NO FAULT OR MISHANDLING BY THE PROCURING AGENCY. YOUR CONTENTIONS ARE AS FOLLOWS:

"/A) BY DISPATCHING THE TELEGRAM AFTER BUSINESS HOURS, SPEN AND CO. KNEW THAT IT WOULD NOT GET INTO THE AGENCY CHANNELS OF TRANSMISSION UNTIL SOMETIME IN THE MORNING OF 29 FEBRUARY 1968, THE DATE OF BID OPENING. VIEW OF THE FACT THAT BID OPENING WAS SET FOR 1000 HOURS (10:00 A.M.) THAT DATE, SPEN AND CO. DID NOT ALLOW SUFFICIENT TIME TO ABSORB THE NORMAL DELAYS IN TRANSMISSION AT THE AGENCY;

"/B) THE FAILURE IN -/A/- ABOVE WAS COMPOUNDED BY SPEN AND CO.'S FAILURE TO PROPERLY DESIGNATE THE TELEGRAM UPON ITS FACE AS A BID MODIFICATION AND IN FAILING TO ADDRESS IT DIRECTLY TO THE BUILDING NUMBER AND BID OPENING ROOM NUMBER SPECIFIED IN THE IFB, THUS FAILING TO OBTAIN FOR IT WHATEVER SPECIAL TRANSMISSION PROCEDURES THE AGENCY MIGHT OTHERWISE EMPLOY IN THE CASE OF BID MODIFICATIONS. INSTEAD THE TELEGRAM WAS ADDRESSED TO THE BUYER AND WAS, THROUGH NO FAULT OF THE AGENCY, HANDLED AS ROUTINE CORRESPONDENCE.'

YOU ARGUE, ACCORDINGLY, THAT SPEN'S LATE TELEGRAPHIC BID MODIFICATION IS NOT PROPER FOR CONSIDERATION BECAUSE ITS LATENESS IS NOT EXCUSABLE UNDER DECISIONS OF OUR OFFICE. ASPR 2-305 PROVIDES THAT A LATE MODIFICATION OF A BID IS SUBJECT TO THE RULES AND PROCEDURES PRESCRIBED BY ASPR 2-303. THAT PROVISION READS IN PERTINENT PART AS FOLLOWS:

"2-303LATE BIDS.

"2-303.1 GENERAL. BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE LATE BIDS,- EVEN THOUGH RECEIVED ONLY ONE OR TWO MINUTES LATE. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.

"2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

"/I) IT IS RECEIVED BEFORE AWARD; AND * * *

"/III) IF SUBMITTED BY MAIL (OR BY TELEGRAM WHERE AUTHORIZED), IT WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SET FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED. THE ONLY EVIDENCE ACCEPTABLE TO ESTABLISH TIMELY RECEIPT AT THE GOVERNMENT INSTALLATION IS THAT WHICH CAN BE ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT AT SUCH INSTALLATION (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.'

WE HAVE BEEN ADVISED AS FOLLOWS BY THE PROCUREMENT ACTIVITY OF THE CIRCUMSTANCES INVOLVED IN THE RECEIPT AND HANDLING OF THE SPEN TELEGRAM:

"THE MESSAGE WAS RECEIVED AT 6:00 PM AND WAS SUBSEQUENTLY DATE/TIME STAMPED AT 1922 HOURS (7:22 PM) ON 28 FEBRUARY 1968 IN THE COMMUNICATIONS OFFICE (TELETYPE ROOM), ROOM 1054, BUILDING 1, U.S. NAVY, AVIATION SUPPLY OFFICE, 700 ROBBINS AVENUE, PHILADELPHIA, PA. 19111. * * *

"BID OPENING WAS THE FOLLOWING MORNING 29 FEBRUARY 1968, 10 AM. THE TELEGRAPHIC MODIFICATION DID NOT REACH THE BID OPENING ROOM UNTIL 2:30 PM, 29 FEBRUARY 1968. THE BID OPENING ROOM IS ROOM 203, BUILDING 1, U.S. NAVY, AVIATION SUPPLY OFFICE, 700 ROBBINS AVENUE, PHILADELPHIA, PA. 19111. BOTH THE TELETYPE ROOM AND THE BID OPENING ROOM ARE IN THE SAME BUILDING, AND IT TAKES APPROXIMATELY FIVE (5) MINUTES TO WALK FROM ONE ROOM TO THE OTHER.

"ALL MESSAGES ARE RECEIVED IN THE COMMUNICATIONS OFFICE (ROOM 1054) BUILDING 1. IF RECEIVED AT NIGHT, THEY ARE PICKED UP THE FOLLOWING MORNING BETWEEN 7:50 AND 8:00 AM BY THE MAIL CLERK AND TAKEN TO THE ASO MAIL ROOM, ROOM 1042, BUILDING 1. ROOM 1042 IS ADJACENT TO ROOM 1054. MESSAGES ARE SORTED IN ROOM 1042, AND THE MAIL CLERKS NOTE ON THE MESSAGES THE CODES OF THE APPROPRIATE DESTINATIONS. THOSE THAT CONCERN THE PURCHASE DIVISION ARE THEN DELIVERED TO ROOM 2023 (ASO PURCHASE DIVISION MAIL ROOM), BUILDING 1 (THE SAME BUILDING). TRIPS ARE MADE AT LEAST EVERY HOUR FROM ROOM 1042 TO ROOM 2023, AND NORMALLY THE FIRST DELIVERY IN THE MORNING TO ROOM 2023 WOULD BE BEFORE 8:45 AM. THE MESSAGES CODED FOR PURCHASE DIVISION DESTINATIONS ARE PROMPTLY SORTED AND DELIVERED TO THEIR RESPECTIVE DESTINATIONS. MESSAGES MODIFYING BIDS ARE DELIVERED TO THE BID OPENING ROOM NOT LATER THAN 9:30 AM OF THAT DAY.

"IN THIS CASE, THE CLERK IN THE ASO MAIL ROOM (ROOM 1042) CODED THE MESSAGE -PGB2- * * * WHICH IDENTIFIED ITS DESTINATION AS THE BUYING SECTION WHICH HAD INITIATED IFB N00383-68-B-0617. THIS CODING WAS ERRONEOUSLY AT VARIANCE WITH INSTRUCTIONS THAT MESSAGES WHICH MODIFY BIDS BE CODED -PGS11- TO IDENTIFY THEIR DESTINATION AS THE BID OPENING ROOM. THE MESSAGE WAS DELIVERED TO THE BUYING SECTION WHICH HAD INITIATED THE IFB, AND UPON DISCOVERY OF THE ERROR WAS DELIVERED TO THE BID OPENING ROOM. HAD THE MESSAGE BEEN CODED PROPERLY BY GOVERNMENT PERSONNEL, IT WOULD HAVE BEEN RECEIVED IN BID OPENING ROOM PRIOR TO BID OPENING. IT WAS RECEIVED IN THE BID OPENING ROOM AT :30 PM ON 29 FEBRUARY 1968.'

UNDER THE REFERENCED ASPR PROVISIONS AND THE INVITATION FOR BIDS PROVISIONS RESPECTING LATE MODIFICATIONS (CLAUSE 8, STANDARD FORM 33A), A TELEGRAPHIC BID MODIFICATION RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION AFTER THE EXACT HOUR AND DATE SPECIFIED FOR BID OPENING WILL NOT BE CONSIDERED UNLESS IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. WE HAVE CONSTRUED SUCH PROVISIONS AS AUTHORIZING THE CONSIDERATION OF LATE MODIFICATIONS OF BIDS WHICH ARRIVED AT THE PROCURING AGENCY IN SUFFICIENT TIME PRIOR TO THE SCHEDULED BID OPENING TO HAVE BEEN TIMELY DELIVERED TO THE PLACE DESIGNATED IN THE INVITATION UNDER ESTABLISHED PROCEDURES BUT NEVERTHELESS DID NOT REACH THE DESIGNATED BID OPENING OFFICE UNTIL AFTER BID OPENING. THE DELAY IN SUCH CASES WAS REGARDED AS HAVING BEEN ATTRIBUTABLE TO MISHANDLING ON THE PART OF THE PROCURING AGENCY. SEE 42 COMP. GEN. 508; 43 ID. 317; 46 ID. 771.

THE RECORD BEFORE US ESTABLISHES THAT SPEN'S TELEGRAPHIC BID MODIFICATION, BEARING THE INVITATION ADDRESS OF THE BID OPENING OFFICE, ARRIVED AT THE ASO COMMUNICATIONS OFFICE AT LEAST 14 HOURS AND 38 MINUTES BEFORE THE SCHEDULED TIME OF BID OPENING; THAT UNDER THE STANDARD PROCEDURES GOVERNING OPERATIONS OF THE ASO COMMUNICATIONS OFFICE THE TELEGRAM WOULD HAVE BEEN DELIVERED TO THE BID OPENING ROOM NO LATER THAN ONE-HALF HOUR PRIOR TO THE SCHEDULE OPENING; AND THAT, EVEN THOUGH PROPERLY ADDRESSED, THE SPEN TELEGRAPHIC BID MODIFICATION DID NOT REACH THE BID OPENING ROOM UNTIL 4 AND ONE-HALF HOURS AFTER BID OPENING BECAUSE OF FAULTY TRANSMISSION PROCEDURES WITHIN ASO. UNDER THE CIRCUMSTANCES, IT IS OUR VIEW THAT THERE WAS MISHANDLING BY THE GOVERNMENT WITHIN THE MEANING OF THE INVITATION AND ASPR PROVISIONS. IT IS EVIDENT THAT THE DELAY IN DELIVERY OF SPEN'S TELEGRAM WAS NOT CAUSED BY THE HOUR AT WHICH IT WAS SENT, AN INADEQUATE ADDRESS, OR ANY OTHER DEFICIENCY RELATING TO ITS TRANSMISSION. THEREFORE, THE BID MODIFICATION OFFERED BY SPEN MAY NOT BE ELIMINATED FROM CONSIDERATION ON THE BASIS THAT IT WAS INEXCUSABLY RECEIVED LATE.

WE HAVE CAREFULLY CONSIDERED THE OFFICE DECISIONS CITED BY YOU BUT THEY ARE NOT APPLICABLE HERE WHERE THE RECORD CLEARLY ESTABLISHES THAT THE LATE RECEIPT WAS NOT THE FAULT OF SPEN BUT THAT OF GOVERNMENT PERSONNEL IN FAILING TO FOLLOW PRESCRIBED PROCEDURES FOR THE DELIVERY OF MESSAGES TO THE BID OPENING ROOM. MOREOVER, THE RECORD SHOWS THAT THE TELEGRAM WAS PROPERLY ADDRESSED AND CITED THE INVITATION BY NUMBER. THERE WAS NO NECESSITY, IN VIEW OF THIS INFORMATION, FOR THE TELEGRAM TO BE DESIGNATED AS A BID MODIFICATION.