B-164046, JUN. 21, 1968

B-164046, JUN. 21, 1968

TO SANDLER:

REFERENCE IS MADE TO THE LETTERS OF APRIL 26, 1968, AND JUNE 3, 1968, AND OTHER CORRESPONDENCE IN CONNECTION WITH THE PROTEST BY SANDLER, A PROPRIETORSHIP OWNED BY MR. MORRIS SANDLER, AGAINST THE PROPOSED CONSIDERATION OF A TELEGRAPHIC MODIFICATION SUBMITTED BY SOCIETY BRAND HAT COMPANY WHICH WAS RECEIVED BY THE PROCURING ACTIVITY AFTER BID OPENING.

ON MARCH 19, 1968, THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, ISSUED INVITATION FOR BIDS NO. DSA 100 -68-B-1449, FOR THE MANUFACTURE AND DELIVERY OF 40,488 BLUE, WOOL SERGE, SERVICE CAPS. BIDS WERE OPENED AS SCHEDULED AT 2:00 P.M., E.S.T., APRIL 8, 1968. SANDLER'S BID QUOTED A PRICE OF $4.75 PER CAP, LESS A PROMPT PAYMENT DISCOUNT OF 10 PERCENT, 20 DAYS, FOR A NET PRICE OF $4.275 PER CAP OR A TOTAL PRICE OF $173,086.20. THE BID OF SOCIETY BRAND HAT, AT THE TIME OF BID OPENING, QUOTED A PRICE OF $5.10 PER CAP, LESS A PROMPT PAYMENT DISCOUNT OF 10 PERCENT, 20 DAYS FOR A NET PRICE OF $4.59 PER CAP OR A TOTAL PRICE OF $185,839.92.

AT 2:34 P.M., E.S.T., APRIL 8, 1968, A TELEGRAPHIC MODIFICATION FROM SOCIETY BRAND HAT WAS DELIVERED OVER THE TIE-LINE OF THE PROCURING ACTIVITY RAISING THE DISCOUNT IN SOCIETY BRAND HAT'S BID FROM 10 PERCENT TO 17 PERCENT. THE PRICE IN SOCIETY BRAND HAT'S BID AS MODIFIED IS $4.233 PER CAP WITH A TOTAL PRICE OF $171,385.70. IF SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION MAY PROPERLY BE CONSIDERED, ITS BID BECOMES LOW BY SOME $1,700.

BY LETTER OF APRIL 9, 1968, SOCIETY BRAND HAT ADVISED THE PROCURING ACTIVITY THAT WESTERN UNION HAD BEEN CONTACTED FOR AN EXPLANATION WHY SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION WAS NOT DELIVERED UNTIL AFTER BID OPENING. THE LETTER STATES THAT WESTERN UNION HAD ADVISED SOCIETY BRAND HAT THAT UNDER NORMAL CONDITIONS THE DELIVERY OF THE MODIFICATION WOULD HAVE BEEN BEFORE BID OPENING. THE LETTER OF APRIL 9, 1968, ALSO IDENTIFIED THE WESTERN UNION OFFICIALS WHO COULD BE CONTACTED TO VERIFY SOCIETY BRAND HAT'S CONTENTIONS. THE ADMINISTRATIVE REPORT, A COPY OF WHICH WAS MADE AVAILABLE TO YOU,CONTAINS THE FOLLOWING INFORMATION:

"BY LETTER DATED 9 APRIL 1968 (ENCL 5), SOCIETY BRAND ADVISED THAT ON 8 APRIL 1968, AT 11:45 A.M., C.S.T. (12:45 E.S.T.), IT DISPATCHED A TELEGRAM (ENCL 4) OVER ITS TELEFAX MACHINE TO WESTERN UNION IN ST. LOUIS. SOCIETY BRAND STATES THAT THE TELEGRAM WAS MARKED "URGENT RUSH.' IMMEDIATELY AFTER TRANSMITTING THE WIRE, ONE OF THE SECRETARIES FROM SOCIETY BRAND TELEPHONED THE ST. LOUIS WESTERN UNION OFFICE AND ADVISED THEM OF THE URGENCY OF THE MESSAGE. SOCIETY BRAND STATES THAT IT WAS ASSURED BY WESTERN UNION THAT ITS MESSAGE WOULD BE DELIVERED TO THIS CENTER IN AN ABSOLUTE MAXIMUM TIME OF 60 MINUTES.

"BY LETTER DATED 10 APRIL 1968 (ENCL 6), THE PHILADELPHIA OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY STATES THAT ACCORDING TO THE RECORDS THE TELEGRAM DISPATCHED BY SOCIETY BRAND WAS RECEIVED BY ITS ST. LOUIS OFFICE AT 11:57 A.M., C.S.T. (12:57 P.M., E.S.T.), WHICH WAS ONE HOUR AND THREE MINUTES BEFORE BID OPENING. THIS TELEGRAM WAS DELIVERED OVER DPSC'S DIRECT TIE LINE AT 2:34 P.M., E.S.T., THIRTY FOUR MINUTES AFTER BID OPENING.'

THE LETTER FROM WESTERN UNION DATED APRIL 10, 1968, REFERRED TO IN THE ABOVE QUOTATION CONFIRMS THAT SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION WAS RECEIVED BY WESTERN UNION AT 12:57 P.M., E.S.T. THE THIRD AND FOURTH PARAGRAPHS OF WESTERN UNION'S LETTER ARE AS FOLLOWS:

"THE DELAY IN OUR HANDLING IS ATTRIBUTED TO AN ABNORMALLY HEAVY VOLUME OF TELEGRAMS PASSING OVER OUR FACILITIES DURING THIS PERIOD, FURTHER AGGRAVATED BY SOME LOCAL OFFICES HAVING TO BE CLOSED AND THEIR FILE DIVERTED TO TERMINATE IN THE PHILA. OFFICE, AND EXCESSIVE ABSENTEEISM, DUE TO THE CIVIL UNREST AND TENSION IN VARIOUS CITIES AT THIS TIME.

"IT IS OUR OPINION THAT THE TELEGRAM WAS GIVEN TO US BY THE SENDER IN AMPLE TIME FOR IT TO HAVE BEEN DELIVERED TO YOU ON OR BEFORE THE 2:00 P.M. E.S.T. DEADLINE, UNDER NORMAL HANDLING.'

THE CONTRACTING OFFICER'S REPORT STATES THAT THE STATISTICS FURNISHED BY WESTERN UNION TO THE FEDERAL COMMUNICATIONS COMMISSION FOR THE MONTH OF APRIL 1968 SHOWED THAT 95.4 PERCENT OF ALL TIE-LINE MESSAGES WERE DELIVERED BY THE PHILADELPHIA OFFICE OF WESTERN UNION WITHIN 60 MINUTES AFTER THEY WERE FILED WITH THE ORIGINATING OFFICE, THE AVERAGE TIME FOR DELIVERY BEING 39.8 MINUTES.

PAGES 5 AND 6 OF THE CONTRACTING OFFICER'S REPORT PROVIDE A DETAILED ACCOUNT OF THE EVENTS, WHICH ARE UNDISPUTED, AT WESTERN UNION'S PHILADELPHIA OFFICE, IN CONNECTION WITH THE TRANSMISSION OF SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION:

"THE MESSAGE WAS RECEIVED AT THE SWITCHING AISLE (SECOND FLOOR) OF THE PHILADELPHIA REGIONAL WESTERN UNION OFFICE AT APPROXIMATELY 12:24 P.M. CST OR 1:24 P.M. EST. IT WILL BE REMEMBERED THAT THE BID OPENING TIME WAS SCHEDULED FOR 2:00 P.M. EST. AFTER A MESSAGE HAS BEEN RECEIVED IN THE SWITCHING AISLE, IT IS SWITCHED TO THE TIE LINE SECTION ON THE FOURTH FLOOR. THE NORMAL TIME FOR SWITCHING A MESSAGE IS TWENTY MINUTES. MR. LUMSDEN STATED THAT THIS PARTICULAR MESSAGE WAS NOT SWITCHED TO THE TIE LINE SECTION UNTIL A LAPSE OF FORTY-SIX MINUTES, WHICH BY THAT TIME WAS BEYOND THE 2:00 P.M. EST BID OPENING TIME.

"MR. LUMSDEN (TRAFFIC MANAGER, PHILADELPHIA REGIONAL OFFICE, WESTERN UNION) EXPLAINED THAT THE REASON FOR THE ABNORMAL DELAY IN THE SWITCHING AISLE WAS TRIGGERED BY THE DEATH OF DR. MARTIN LUTHER KING. THE PHILADELPHIA REGIONAL WESTERN UNION OFFICE NORMALLY HAS SIX EMPLOYEES ABSENT BUT ON 8 APRIL IT HAD TWICE THAT AMOUNT OR TWELVE EMPLOYEES ABSENT. TO AGGRAVATE THE SITUATION, TWO LOCAL OFFICES HAD CLOSED OVER THE WEEKEND (ONE AT 5155 WALNUT STREET, AND THE OTHER AT 3133 NORTH BROAD STREET, PHILADELPHIA, PENNSYLVANIA), CLOSED FROM 4:00 P.M. FRIDAY, 5 APRIL TO 7:00 A.M. 8 APRIL. THE CLOSING OF THESE OFFICES NECESSITATED THEIR FILE BEING DIVERTED TO THE PHILADELPHIA REGIONAL OFFICE. IN ADDITION, THE BALTIMORE WESTERN UNION OFFICE HADFOURTEEN EMPLOYEES ABSENT. (THE PHILADELPHIA REGIONAL OFFICE IS APPROXIMATELY FOUR TIMES LARGER THAN BALTIMORE'S OFFICE, WHICH DEMONSTRATES THE HEAVY ABSENTEE RATE IN BALTIMORE.) AS A RESULT, THE PHILADELPHIA REGIONAL WESTERN UNION OFFICE AGREED TO HANDLE BALTIMORE'S NIGHT LETTER FILE.' WE ARE ALSO INFORMED THAT WESTERN UNION SUSPENDED ITS "SPEED OF SERVICE" OBJECTIVE ON APRIL 8, 1968, BECAUSE OF THE ABNORMALLY HEAVY FILE OF "PERSONAL OPINION" MESSAGES PRECIPITATED BY THE DEATH OF DR. MARTIN LUTHER KING.

BASICALLY, THE LETTERS OF APRIL 26 AND JUNE 3, 1968, ALLEGE THAT THE DELAY IN THE DELIVERY OF THE TELEGRAPHIC MODIFICATION WAS NOT ABNORMAL AND UNFORESEEABLE; CONSEQUENTLY, SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION SHOULD NOT BE CONSIDERED. OUR DECISIONS, B 150705, FEBRUARY 28, 1963; B- 151008, MARCH 27, 1963; AND 40 COMP. GEN. 290, HAVE BEEN CITED IN CONNECTION WITH THIS VIEW.

THE INVITATION AT PARAGRAPH 5 (B) OF SF-33A PERMITS TELEGRAPHIC MODIFICATIONS; PARAGRAPH 8 OF THE SAME FORM PROVIDES THAT A LATE TELEGRAPHIC MODIFICATION MAY BE CONSIDERED IF IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THESE PROVISIONS OF THE INVITATION ARE IN ACCORDANCE WITH ASPR 2-303.2 (II). IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION MAY BE CONSIDERED.

IN 40 COMP. GEN. 290, A TELEGRAPHIC MODIFICATION WHICH WAS FILED WITH WESTERN UNION 40 MINUTES BEFORE BID OPENING DID NOT ARRIVE UNTIL AFTER THE BID OPENING. IT WAS NOT ESTABLISHED THAT ANYTHING OUT OF THE ORDINARY HAPPENED AT WESTERN UNION TO DELAY THE DELIVERY OF THE TELEGRAPHIC MODIFICATION. OUR DECISION WAS THAT IN THOSE CIRCUMSTANCES IT WAS UNREASONABLE FOR A BIDDER TO BELIEVE THAT DELIVERY OF A TELEGRAM WITHIN 40 MINUTES WOULD BE PREVENTED ONLY BY ABNORMAL, UNUSUAL OR UNFORESEEABLE DELAYS. IN B-151008, MARCH 27, 1963, THE TELEGRAPHIC MODIFICATION INVOLVED PROBABLY WOULD HAVE BEEN HELD PROPER FOR CONSIDERATION BUT FOR THE FACT THAT THE MODIFICATION WAS NOT RECEIVED BY THE PROCURING OFFICE UNTIL AFTER AWARD WHICH IS AN ENTIRELY DIFFERENT SITUATION FROM THAT PRESENTED IN THIS CASE. THE OTHER DECISION, B-150705, FEBRUARY 28, 1963, CONCERNED A SITUATION WHERE A TELEGRAPHIC MODIFICATION WAS FILED WITH THE TELEGRAPH OFFICE AT LONG BEACH, CALIFORNIA, 44 MINUTES BEFORE A BID OPENING WHICH WAS TO BE AT TINKER AIR FORCE BASE, OKLAHOMA. THE MODIFICATION WAS NOT DELIVERED UNTIL AFTER BID OPENING. IN THAT CASE IT WAS NOT ESTABLISHED THAT ANYTHING OUT OF THE ORDINARY DELAYED THE TELEGRAPHIC MODIFICATION; CONSEQUENTLY, WE FOUND THAT THE MODIFICATION COULD NOT BE CONSIDERED.

OUR DECISION, B-158563, JUNE 13, 1966, CONSIDERED A SITUATION WHERE A TELEGRAPHIC MODIFICATION WAS FILED WITH THE WESTERN UNION OFFICE AT DECATUR, ILLINOIS, AT 10:07 A.M., E.S.T., APRIL 5, 1966, MARKED FOR RUSH HANDLING FOR A BID OPENING SCHEDULED FOR 11:00 A.M., E.S.T., ON THE SAME DATE AT PARIS ISLAND, SOUTH CAROLINA. THE MODIFICATION WAS NOT DELIVERED UNTIL AFTER BID OPENING. WESTERN UNION ADVISED THAT IT WOULD HAVE BEEN REASONABLE TO EXPECT DELIVERY OF A TELEGRAM MARKED FOR RUSH HANDLING BEFORE BID OPENING BUT 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. OUR DECISION FOUND THAT IN THOSE CIRCUMSTANCES THE LATE TELEGRAPHIC MODIFICATION MET THE THREEFOLD TEST FOR ACCEPTABILITY EXPOUNDED IN 40 COMP. GEN. 290; THAT THE DELAY WAS AN ABNORMAL DELAY BEYOND THAT USUALLY ENCOUNTERED UNDER NORMAL TRANSMISSION PROCEDURE; AND THAT THE TELEGRAPHIC MODIFICATION COULD PROPERLY BE CONSIDERED. A SIMILAR SITUATION WAS CONSIDERED IN B-157809, OCTOBER 15, 1965. IN THAT CASEA TELEGRAPHIC MODIFICATION WAS FILED WITH WESTERN UNION'S OFFICE AT TEMPLE, TEXAS, AT 1:44 P.M., C.S.T., SEPTEMBER 14, 1966. BID OPENING WAS ON THE SAME DATE AT 3:00 P.M., C.S.T., AT ALGIERS, LOUISIANA. THE MODIFICATION WAS NOT DELIVERED UNTIL AFTER BID OPENING. WESTERN UNION ADVISED THAT THE MESSAGE EXPERIENCED ABNORMAL DELAY IN THE SWITCHING AISLES DUE TO THE UNUSUALLY HEAVY VOLUME OF MESSAGES SENT TO THE NEW ORLEANS AREA IN THE AFTERMATH OF HURRICANE "BETSY.' WE FOUND THAT IN THOSE CIRCUMSTANCES THE DELAY IN DELIVERY WAS ONE WHICH WAS ATTRIBUTABLE TO THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND THAT THEREFORE IT WAS PROPER TO CONSIDER THE TELEGRAPHIC MODIFICATION.

IN THE INSTANT CASE THERE WERE THREE INTERWOVEN FACTORS WHICH CONTRIBUTED TO THE DELAY IN THE DELIVERY OF SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION -- EXCESSIVE ABSENTEEISM; THE DIVERSION OF VARIOUS FILES FROM OTHER WESTERN UNION OFFICES TO THE PHILADELPHIA OFFICE; AND THE NUMBER OF ,PERSONAL OPINION" MESSAGES HANDLED. ALL OF THE CAUSES OF DELAY WERE ATTRIBUTABLE TO THE DEATH OF DR. MARTIN LUTHER KING. WHILE SOCIETY BRAND HAT'S REPRESENTATIVES WERE UNDOUBTEDLY AWARE OF DR. KING'S DEATH PRIOR TO THE TIME THE TELEGRAM WAS SENT, WE CANNOT DISAGREE WITH THE CONTRACTING OFFICER'S CONCLUSION THAT THE FIRM WAS NOT UNDER A LEGAL DUTY TO FORESEE THE CONSEQUENCES ARISING THEREFROM WHICH RESULTED IN DELAYING RECEIPT OF THE TELEGRAM BEYOND THE TIME SET FOR BID OPENING. WE, THEREFORE, ADOPT THE CONTRACTING OFFICER'S POSITION THAT THE DELAY IN THE DELIVERY OF THE TELEGRAPHIC MODIFICATION WAS DUE TO ABNORMAL AND UNFORESEEABLE CAUSES FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

THE AVERAGE TIME FOR DELIVERY OF A TELEGRAPHIC MODIFICATION AS INDICATED IN THE CONTRACTING OFFICER'S REPORT FURTHER ESTABLISHES THAT SOCIETY BRAND HAT'S TELEGRAPHIC MODIFICATION WOULD HAVE BEEN DELIVERED ON TIME BY "NORMAL TRANSMISSION PROCEDURES," CF. B-153824, APRIL 22, 1964. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT THE MODIFICATION FROM SOCIETY BRAND HAT MAY PROPERLY BE CONSIDERED.