B-169386, MAY 12, 1970

B-169386, MAY 12, 1970

BIDS--LATE--TELEGRAPHIC MODIFICATIONS--PRICE REDUCTION TELEGRAPHIC BID MODIFICATION, WHICH REDUCED BIDDER'S PRICE, RECEIVED BY BID OPENING OFFICER AT 3:08 P.M; 8 MINUTES AFTER BID OPENING AT 3 P.M. WAS PROPERLY REJECTED SINCE BOTH INVITATION AND ASPR 2-303.4 PROVIDED FOR CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATION ONLY WHEN DELAY IS DUE TO MISHANDLING ON PART OF GOVERNMENT IN TRANSMITTAL TO OFFICE DESIGNATED IN INVITATION, AND RECORD INDICATES DELAY IN TRANSMISSION OF MODIFICATION WAS CAUSED BY TELEGRAPH COMPANY.

TO SMITH, CURRIE & HANCOCK:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 24, 1970, PROTESTING ON BEHALF OF MARTIN BUILDERS, INC; MOBILE, ALABAMA, THE ACTION OF THE GULF DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, NAVAL SUPPORT ACTIVITY, NEW ORLEANS, LOUISIANA, IN REJECTING ITS LATE TELEGRAPHIC BID MODIFICATION SUBMITTED IN RESPONSE TO AN INVITATION COVERING NAVFAC SPECIFICATION NO. 08-70-0040.

THE INVITATION, ISSUED ON FEBRUARY 13, 1970, REQUESTED BIDS TO BE SUBMITTED TO THE OFFICER IN CHARGE OF CONSTRUCTION, NAVAL FACILITIES CONTRACTS, GULF DIVISION, BUILDING 16, NAVAL SUPPORT ACTIVITY, NEW ORLEANS, LOUISIANA, TO BE OPENED AT 3 P.M; C.S.T; ON MARCH 19, 1970, FOR THE CONSTRUCTION OF THE SUPPLY OPERATIONS FACILITY, U.S. NAVAL CONSTRUCTION BATTALION CENTER, GULFPORT, MISSISSIPPI.

THE RECORD SHOWS THAT BIDS WERE OPENED AT 3 P.M; C.S.T; ON MARCH 19, 1970, AS SCHEDULED. SUBSEQUENTLY, AT 3:08 P.M; THE NEW ORLEANS WESTERN UNION OFFICE TELEPHONICALLY TRANSMITTED TO THE PROCURING ACTIVITY IN NEW ORLEANS THE TELEGRAM SENT BY MARTIN BUILDERS REDUCING ITS BID PRICE BY $130,100 AND MAKING ITS BID THE LOWEST ONE RECEIVED BY THE PROCURING ACTIVITY. THE MESSAGE WAS CONFIRMED BY THE TELEGRAPH COMPANY BY SENDING A COPY OF THE TELEGRAM WHICH FORMED THE BASIS FOR THE TELEPHONE CALL. THE CONTRACTING OFFICER DETERMINED THAT SINCE MARTIN'S TELEGRAPHIC BID MODIFICATION WAS RECEIVED AT 3:08 P.M. ON MARCH 19, 1970, OR AFTER THE TIME SPECIFIED FOR OPENING OF BIDS, SUCH MODIFICATION WAS RECEIVED TOO LATE FOR CONSIDERATION IN MAKING AN AWARD. THE CONTRACTING OFFICER THEREFORE AWARDED CONTRACT NO. N62468 70-B-0040 IN THE AMOUNT OF $472,959 TO ROY ANDERSON, JR; INC; OF GULFPORT, MISSISSIPPI.

IN REGARD TO THE CAUSE OF THE DELAY IN THE TRANSMISSION OF MARTIN'S TELEGRAPHIC BID MODIFICATION, THE RECORD CONTAINS A LETTER DATED MARCH 23, 1970, IN WHICH THE MANAGER OF THE MOBILE OFFICE OF WESTERN UNION ADVISED MR. ROBERT BAGGETT OF MARTIN BUILDERS AS FOLLOWS;

"THIS IS IN REFERENCE TO TELEGRAM FILED BY YOUR COMPANY MARCH 19 1970 TO OFFICER IN CHARGE OF CONSTRUCTION NAVAL FACILITIES CONTRACTS GULF DIVISION BLDG 16 NAVAL SUPPORT ACTIVITY NEW ORLEANS, LA.

"AS I EXPLAINED TO YOU ON THE TELEPHONE THIS MORNING WE ACCEPTED THE TELEGRAM OVER THE TELEPHONE IN THE MOBILE OFFICE AT 112PCST MARCH 19 AND THIS WAS AMPLE TIME TO HAVE THE TELEGRAM DELIVERED PRIOR TO BID CLOSING AT 3P CST MARCH 19.

"AFTER INVESTIGATING THE MATTER I DISCOVERED OUR NEW ORLEANS OFFICE HAD ROUTED THE MESSAGE TO A BRANCH OFFICE WHICH RESULTED IN US NOT GETTING THE TELEGRAM DELIVERED IN TIME FOR YOUR BID TO BE HONORED.

"THE TELEGRAM WAS RETURNED FROM OUR BRANCH TO THE NEW ORLEANS CENTRAL OFFICE AT APPROXIMATELY 3PM, AND WAS TELEPHONED TO THE ADDRESSEE AT 308P CST.

"THANK YOU FOR YOUR UNDERSTANDING AND IF I CAN BE OF FURTHER SERVICE TO YOU PLEASE FEEL FREE TO CALL ON ME."

THE INVITATION CONTAINED THE FOLLOWING PROVISION:

"1B.34 STANDARD FORM 22, INSTRUCTION TO BIDDERS (CONSTRUCTION CONTRACT). DELETE PARAGRAPH 7 TITLED 'LATE BIDS, AND MODIFICATIONS OR WITHDRAWALS' AND SUBSTITUTE THE FOLLOWING:

"'7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (1968 DEC)

"(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 REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARKED) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION; * * *'"

PARAGRAPH 2-305 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) DEFINES "LATE MODIFICATIONS" AND PROVIDES THAT THE RULES AND PROCEDURES CONTAINED IN ASPR 2-303 IN REGARD TO LATE BIDS ALSO APPLY TO TELEGRAPHIC MODIFICATIONS WHICH ARE RECEIVED AFTER BID OPENING. ASPR 2 303.4 ENTITLED "TELEGRAPHIC BIDS" PROVIDES:

"A LATE TELEGRAPHIC BID RECEIVED BEFORE AWARD SHALL NOT BE CONSIDERED FOR AWARD, REGARDLESS OF THE CAUSE OF THE LATE RECEIPT, INCLUDING DELAYS CAUSED BY THE TELEGRAPH COMPANY, EXCEPT FOR DELAYS DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT IN ITS TRANSMITTAL TO THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS FOR THE RECEIPT OF BIDS, AS PROVIDED FOR BIDS SUBMITTED BY MAIL (SEE 2-303.3 (A) (II))."

THE RECORD SHOWS THAT MARTIN'S TELEGRAPHIC MODIFICATION WAS RECEIVED OVER THE TELEPHONE BY THE BID OPENING OFFICER AT 3:08 P.M; C.S.T; 8 MINUTES AFTER THE BID OPENING AT 3 P.M; C.S.T; AND THAT BUT FOR THE DELAY IN TRANSMISSION CAUSED BY THE TELEGRAPH COMPANY, SUCH MODIFICATION WOULD HAVE BEEN RECEIVED BY THE PROCUREMENT OFFICE BEFORE THE BID OPENING.

YOU STATE IN YOUR LETTER OF APRIL 8, 1970, THAT THE TELEGRAPHIC MODIFICATION, ACCORDING TO MARTIN'S BEST BELIEF, WAS TELEPHONED IN BY WESTERN UNION TO THE GOVERNMENT A FEW MINUTES PRIOR TO 3 P.M. ON MARCH 19, 1970, WHICH WAS THE TIME SET FOR OPENING OF BIDS, AND THAT MARTIN BELIEVES THAT WESTERN UNION WAS INFORMED THAT THE GOVERNMENT HAD A POLICY OF NOT ACCEPTING BIDS BETWEEN 2:55 AND 3 P.M. AND ACCORDINGLY THE ACTUAL BID MODIFICATION WAS NOT RECEIVED BY THE GOVERNMENT UNTIL 3:08 P.M. ON MARCH 19, 1970. IN SUPPORT OF YOUR ALLEGATION THAT MARTIN WAS ENTITLED TO AWARD OF THE CONTRACT, YOU CITE ASPR 2-302 AND 2-303 WHICH, IN ESSENCE, STATES THAT TELEGRAPHIC BIDS WILL NOT BE CONSIDERED IF RECEIVED LATER THAN "THE EXACT TIME SET FOR OPENING OF BIDS." YOU CONTEND THAT MARTIN WAS ENTITLED TO SUBMIT A TELEGRAPHIC BID OR MODIFICATION UP UNTIL THE "EXACT TIME" SET FOR OPENING OF BIDS AND THAT THE GOVERNMENT HAD NO AUTHORITY UNDER ASPR, OR OTHERWISE, TO REFUSE MARTIN'S TELEGRAPHIC BID MODIFICATION AT ANY TIME PRIOR TO 3 P.M; "THE EXACT TIME SET FOR OPENING OF BIDS."

IN SUPPORT OF YOUR REQUEST FOR RELIEF, YOU HAVE SUBMITTED COPIES OF WESTERN UNION'S FILE IN THIS MATTER. THE FILE CONTAINS A LETTER DATED MARCH 23, 1970, FROM A BRANCH MANAGER OF A NEW ORLEANS WESTERN UNION OFFICE TO MR. ROBERT BAGGETT OF MARTIN BUILDERS AND IN SUCH LETTER THERE APPEARS THE FOLLOWING STATEMENT: "THE TELEGRAM WAS RETURNED FROM OUR BRANCH TO THE NEW ORLEANS CENTRAL OFFICE AT APPROXIMATELY 3PM, AND WAS TELEPHONED TO THE ADDRESSEE AT 308P CST." IN CONNECTION WITH THE FOREGOING STATEMENT, WE HAVE EXAMINED A COPY OF THE CONFIRMING TELEGRAM SENT TO THE OFFICER IN CHARGE OF CONSTRUCTION AND IT INDICATES IT WAS TIME -STAMPED AS RECEIVED BY WESTERN UNION AT 3:01 P.M. ON MARCH 19, 1970, 1 MINUTE AFTER THE 3 P.M. DEADLINE FOR RECEIPT OF BIDS.

IN VIEW OF THE FOREGOING TIME STAMP AND THE STATEMENT IN WESTERN UNION'S LETTER OF MARCH 23, 1970, TO THE EFFECT THAT THE TELEGRAM WAS RETURNED BY THE BRANCH OFFICE TO THE NEW ORLEANS CENTRAL OFFICE AT APPROXIMATELY 3 P.M; WE ARE OF THE OPINION THAT THE EVIDENCE OF RECORD SUPPORTS THE CONCLUSION THAT THE NEW ORLEANS CENTRAL OFFICE OF WESTERN UNION WAS NOT IN A POSITION TO HAVE TELEPHONICALLY TRANSMITTED SUCH TELEGRAM TO THE PROCURING ACTIVITY PRIOR TO 3 P.M. ON MARCH 19, 1970. IN REGARD TO THE ALLEGED INSTRUCTION OF THE PROCURING ACTIVITY TO WESTERN UNION THAT IT SHOULD NOT TRANSMIT ANY WIRES TO THE ACTIVITY LATER THAN 2:55 P.M; THE COMMANDING OFFICER, GULF DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, NEW ORLEANS, LOUISIANA, HAS ADVISED THAT HIS OFFICE HAS AT NO TIME INSTRUCTED WESTERN UNION TO HOLD UP TRANSMISSION OF ANY WIRES TO THAT COMMAND.

SINCE BOTH THE INVITATION AND ASPR 2-303.4 PROVIDE FOR THE CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS ONLY WHEN THE DELAY IS DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT IN ITS TRANSMITTAL TO THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, AND THE RECORD INDICATES THAT THE DELAY IN TRANSMISSION OF THE MODIFICATION WAS CAUSED BY THE TELEGRAPH COMPANY, WE BELIEVE THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING MARTIN'S LATE TELEGRAPHIC BID MODIFICATION WAS PROPER AND IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION AND REGULATION. ACCORDINGLY, YOUR PROTEST IS DENIED.