B-181563, SEP 10, 1974

B-181563, SEP 10, 1974

TELEGRAPHIC MODIFICATION OF BID WHICH WAS HAND DELIVERED BY WESTERN UNION TO PROCURING AGENCY 5 MINUTES AFTER BID OPENING INSTEAD OF BEING SENT OVER AGENCY'S DESK-FAX BY WESTERN UNION SHOULD NOT BE CONSIDERED UNDER ASPR 2- 201(A) SECTION CXXXVI) AS THERE HAS BEEN NO SHOWING OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT OF TELEGRAM AT GOVERNMENT FACILITY.

MOORE & HANKS COMPANY:

ON JUNE 6, 1974, THE NAVAL REGIONAL PROCUREMENT OFFICE (NRPO), WASHINGTON, D.C., ISSUED INVITATION FOR BIDS (IFB) N00600-74-B-0176, WHICH WAS THE SECOND STEP OF A TWO STEP, FORMALLY ADVERTISED PROCUREMENT FOR A PREFABRICATED ENVIRONMENTAL LABORATORY UNIT. TWO FIRMS, MOORE & HANKS COMPANY (MOORE) AND PSYCHROMETRICS, INC. (PSYCHROMETRICS), WHICH WERE THE ONLY FIRMS TO SUBMIT ACCEPTABLE TECHNICAL PROPOSALS UNDER STEP ONE, WERE ISSUED THE IFB. A BID OPENING TIME OF 11:00 A.M., JUNE 20, 1974, WAS ESTABLISHED BY THE IFB.

THE FOLLOWING TWO BIDS WERE RECEIVED AT THAT TIME:

PSYCHROMETRICS $156,220.00

MOORE $275,000.00

ON JUNE 20, 1974, A HAND DELIVERED TELEGRAPHIC MODIFICATION OF MOORE'S BID WAS DELIVERED BY WESTERN UNION TO THE MAILROOM OF THE NRPO AND WAS OPENED UPON DELIVERY AND TIME STAMPED IN AT 11:05 A.M. THIS MODIFICATION REDUCED ITS BID TO $144,840. THE CONTRACTING OFFICER DETERMINED THE MODIFICATION TO BE LATE AND THEREFORE, THE $275,000 BID OF MOORE REMAINED UNCHANGED.

MOORE PROTESTED THE REJECTION OF ITS MODIFICATION TO OUR OFFICE ON JUNE 20, 1974. ON JUNE 25, 1974, THE CONTRACTING OFFICER MADE A DETERMINATION TO PROCEED WITH THE AWARD OF THE CONTRACT NOTWITHSTANDING THE PROTEST PURSUANT TO SECTION 2-407.8(B)(3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR)) AND ON JUNE 26, 1974, AWARD OF THE CONTRACT WAS MADE TO PSYCHROMETRICS.

THE REASON MOORE ADVANCES IN SUPPORT OF ITS PROTEST IS THAT WHEN THE NAVY CHANGED THE DESIGNATION OF THE NAVY PURCHASING OFFICE (NPO) TO THE NRPO, IT DID NOT ADVISE WESTERN UNION TO CHANGE THE NAME IN ITS TWX LISTINGS. THEREFORE, WHEN THE MOORE TELEGRAPHIC MODIFICATION ARRIVED AT THE WASHINGTON WESTERN UNION OFFICE AT 12:35 A.M., ON JUNE 20, 1974, WESTERN UNION WAS UNABLE TO SEND THE MESSAGE VIA TWX AND INSTEAD HAD THE MESSAGE HAND DELIVERED, ARRIVING AT THE NRPO 5 MINUTES AFTER BID OPENING.

THE CONTRACTING OFFICER HAS RESPONDED TO THIS CONTENTION BY STATING THAT NEITHER THE FORMER NPO NOR THE NRPO HAS HAD A TWX MACHINE OR A TWX CODE LISTING. NRPO HAS A WESTERN UNION DESK-FAX MACHINE AND BOTH THE NPO AND THE NRPO ARE LISTED AS BEING AT THE SAME LOCATION BY WESTERN UNION. THE CONTRACTING OFFICER STATES FURTHER THAT HE KNOWS OF NO REASONS WHY THE MESSAGE WAS HAND DELIVERED INSTEAD OF BEING SENT OVER THE DESK-FAX BECAUSE SINCE JULY 1973, THE DATE OF THE DESIGNATION CHANGE, MESSAGES ADDRESSED TO EITHER NPO OR NRPO HAVE BEEN DELIVERED PROPERLY TO NRPO AND, MOREOVER, THE JUNE 20, 1974, PROTEST TELEGRAM FROM MOORE WAS ADDRESSED TO NRPO AND WAS TRANSMITTED OVER ITS DESK-FAX MACHINE IN THE NORMAL MANNER. A REIVEW OF THE SUBJECT IFB REVEALS THAT IT CONTAINED THE CAUSE "LATE BIDS, MODIFICATIONS OF BIDS OR WITHDRAWAL OF BIDS" (1973 SEPT) (ASPR 2-201(A) SEC. C (XXXVI)) WHICH READS, IN PERTINENT PART, AS FOLLOWS: "LATE BIDS, MODIFICATIONS OF BIDS OR WITHDRAWALS OF BIDS (1973 SEP)

"(A) ANY BID RECEIVED AT THE OFFICE DESIGNATED IN THE SOLICIATION AFTER THE EXACT TIME SPECIFIED FOR RECEIPT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND EITHER:

"(II) IT WAS SENT BY MAIL (OR TELEGRAM IF AUTHORIZED) AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION.

"(B) ANY MODIFICATION OR WITHDRAWAL OF BID IS SUBJECT TO THE SAME CONDITIONS AS IN (A) ABOVE. ***"

PARAGRAPH 7(A) OF STANDARD FORM 33A, ALSO INCLUDED IN THE IFB, PERMITTED MODIFICATION OF BIDS BY TELEGRAM.

UNDER THE ABOVE-QUOTED CLAUSE, THE ONLY REASON TO PERMIT CONSIDERATION OF THE LATE TELEGRAPHIC MODIFICATION WOULD BE A SHOWING OF MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. BASED ON THE RECORD BEFORE OUR OFFICE, THIS SHOWING HAS NOT BEEN MADE. MOORE HAS PRESENTED NO EVIDENCE THAT THE TELEGRAM WAS MISHANDLED ONCE IT WAS RECEIVED AT THE NRPO AND THEREFORE, THE TELEGRAPHIC MODIFICATION WAS PROPERLY REJECTED AND THE PROTEST MUST BE DENIED.