B-169842, JUL. 14, 1970

B-169842, JUL. 14, 1970

BID PROTEST -- LATE TELEGRAPHIC BID DECISION TO STAR TOOL AND DIE WORKS, INC. (NOT LOW OFFEROR), DENYING PROTEST AGAINST REJECTION OF LATE TELEGRAPHIC BID SUBMITTED TO TINKER AIR FORCE BASE, OKLAHOMA. OFFEROR WHOSE TELEGRAPHIC BID WAS TRANSMITTED ONE DAY AFTER THE DEADLINE FOR SUBMISSION OF OFFERS BECAUSE OF ERRORS IN TELEGRAPHIC TRANSMISSION WAS NOT ENTITLED TO HAVE LATE OFFER CONSIDERED SINCE UNDER ASPR 2-303.4 DELAYS CAUSED BY TELEGRAPHIC COMPANY ARE NO LONGER REASONS FOR CONSIDERATION.

TO STAR TOOL AND DIE WORKS, INCORPORATED:

THIS CONCERNS YOUR PROTEST BY LETTER OF MAY 15, 1970, AGAINST THE REFUSAL OF THE CONTRACTING OFFICER TO CONSIDER YOUR TELEGRAPHIC BID SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS NO. F34601-70-Q-7272, ISSUED BY TINKER AIR FORCE BASE, OKLAHOMA.

A TELEGRAPHIC REQUEST FOR PROPOSALS WAS ISSUED ON MARCH 16, 1970. TELEGRAPHIC AND WRITTEN PROPOSALS WERE PERMITTED UNDER THE SOLICITATION AND PROPOSALS WERE REQUIRED TO BE SUBMITTED BY APRIL 6, 1970. SUBSEQUENTLY, THE SOLICITATION WAS AMENDED TWICE AND APRIL 13, 1970, WAS SET AS THE FINAL DATE FOR SUBMISSION OF PROPOSALS. STAR TOOL AND DIE WORKS, AFTER BEING ADVISED VERBAL OFFERS WERE UNACCEPTABLE, SUBMITTED A TELEGRAPHIC PROPOSAL ON APRIL 13, 1970. HOWEVER, DUE TO ERRORS IN TRANSMISSION BY THE TELEGRAPH COMPANY THE PROPOSAL BY STAR TOOL AND DIE WORKS HAD TO BE RESENT TWICE. THE TELEGRAPHIC PROPOSAL OF STAR TOOL AND DIE WORKS WAS FINALLY TRANSMITTED TO THE TINKER AIR FORCE BASE CONTRACTING OFFICE ON APRIL 14, 1970, ONE DAY AFTER THE DEADLINE FOR SUBMISSION OF OFFERS. SINCE THE DELAY IN RECEIPT OF STAR TOOL AND DIE WORKS' PROPOSAL WAS CAUSED BY THE TELEGRAPH COMPANY, NOT THE GOVERNMENT, THE CONTRACTING OFFICER CONSIDERED THE PROPOSAL LATE AND UNACCEPTABLE.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH IMPLEMENTS THE STATUTE PURSUANT TO WHICH THIS PROCUREMENT WAS AUTHORIZED, RECOGNIZES THAT SOMETIMES A PROPOSAL MAY BE RECEIVED LATE DUE TO NO FAULT OF THE OFFEROR AND HAS THEREFORE PROVIDED FOR CONSIDERATION OF SUCH LATE PROPOSALS IN SPECIFIC CIRCUMSTANCES. ASPR 2-303.4 FORMERLY PROVIDED FOR CONSIDERATION OF LATE TELEGRAPHIC BIDS RECEIVED BEFORE AWARD WHERE THE BIDDER DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE, SUBSTANTIATED BY THE TELEGRAPH COMPANY, THAT THE BID WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN TIMELY DELIVERED BY NORMAL TRANSMISSION PROCEDURE. HOWEVER, BECAUSE OF THE DIFFICULTY IN DETERMINING WHAT DELAYS BY THE TELEGRAPH COMPANY WERE ABNORMAL AND WHAT DELAYS SHOULD HAVE BEEN ANTICIPATED BY THE BIDDER WHEN FILING HIS TELEGRAPHIC BID AND THE DETRIMENTAL EFFECT ON THE PROCUREMENT SYSTEM CAUSED BY WITHHOLDING AWARDS UNTIL SUCH QUESTIONS COULD BE RESOLVED, THE REGULATION WAS REVISED ON AUGUST 29, 1969. ASPR 2-303.4 NOW STATES:

"TELEGRAPHIC BIDS. 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 TELEGRAPHIC 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))". WHILE THIS PROCUREMENT WAS NEGOTIATED RATHER THAN FORMALLY ADVERTISED, ASPR 3-506 APPLIES THE LATE BID STANDARDS SET FORTH IN ASPR 2-303 TO LATE PROPOSALS. THEREFORE, THE CONTRACTING OFFICER ACTED PROPERLY IN ACCORDANCE WITH THE REGULATION IN REFUSING TO CONSIDER YOUR PROPOSAL WHICH WAS DELAYED BY THE TELEGRAPH COMPANY. WE ALSO NOTE THAT YOUR COMPANY WOULD NOT HAVE BEEN IN LINE FOR AWARD IN ANY EVENT SINCE YOUR PROPOSAL WAS NOT THE LOW OFFER RECEIVED.

ACCORDINGLY, YOUR PROTEST IS DENIED.