B-159596, NOV. 18, 1966

B-159596, NOV. 18, 1966

TO MR. SAMUEL F. SCHWAG:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1966, REQUESTING A RECONSIDERATION OF OUR DECISION B-159596 OF AUGUST 25, 1966, WHEREIN WE DENIED THE PROTEST OF LAND MANUFACTURING, INCORPORATED, BY HOLDING THAT THE TELEGRAPHIC MODIFICATION SENT BY GENTEX CORPORATION LOWERING ITS BID PRICE WHICH WAS RECEIVED AFTER THE SPECIFIED BID OPENING TIME COULD BE THE BASIS OF AN AWARD TO THAT FIRM UNDER THE USUAL LATE BID RULE.

YOU NOW CONTEND THAT TELEGRAPHIC MODIFICATION SHOULD BE ACCORDED LATE BID TREATMENT ONLY WHEN TELEGRAPHIC BIDS ARE PERMISSIBLE, AND THAT ANY OTHER INTERPRETATION OF THE PERTINENT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION IS MISTAKEN, NOTWITHSTANDING PRECEDENT TO THE CONTRARY.

PARAGRAPH 2-304 OF ASPR PROVIDES THAT LATE BID MODIFICATIONS ARE TO BE TREATED IN THE SAME MANNER AS LATE BIDS "* * * SUBJECT TO THE PROCEDURES APPLICABLE TO LATE BID SET FORTH IN 2-303 * * *.'

THE APPLICABLE PART OF THAT PARAGRAPH, 2-303.2 (II), PERMITS THE CONSIDERATION OF LATE TELEGRAPHIC BIDS WHERE THE USE OF TELEGRAM IS AUTHORIZED AND THE DELAY IS DUE SOLELY TO THE TELEGRAPH COMPANY.

PROVISION 3 OF THE DD FORM 1490, INCLUDED IN THE INVITATION, PERMITTED THE TELEGRAPHIC MODIFICATION OF BIDS IN THESE WORDS:

"/A) IF THIS SOLICITATION IS ADVERTISED, OFFERS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED PRIOR TO THE EXACT HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS. * * *.'

THIS PROVISION IS AN IMPLEMENTATION OF PARAGRAPH 2-304 OF ASPR WHICH SIMILARLY STATES:

"/A) BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. * * *.'

YOU SUGGEST THIS SHOULD BE COMPARED TO THE LANGUAGE OF PARAGRAPH 2 302. "TIME OF BID SUBMISSION," WHICH READS IN PART:

"BIDS SHALL BE SUBMITTED SO AS TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS.'

IN LIGHT OF THE BROADER LANGUAGE IN 2-302 STRESSING THE TIME OF SENDING RATHER THAN THE TIME OF RECEIPT, YOU WOULD INTERPRET 2-304 AS STANDING FOR A LIMITED GRANT OF AUTHORITY TO USE TELEGRAPHIC MODIFICATION, NAMELY, THOSE MESSAGES "RECEIVED PRIOR TO THE EXACT HOUR AND DATE SPECIFIED.'

WE AGREE THAT THE DIFFERENCE IN THE WORDING OF THESE TWO PARAGRAPHS IN ASPR, 2-302 AND 2-304, MAY BE ARGUED TO SUPPORT YOUR CONTENTION THAT THESE PROVISIONS OF ASPR WERE DRAFTED WITH THE INTENTION TO LIMIT TELEGRAPHIC MODIFICATIONS, IN THOSE CASES WHERE TELEGRAPHIC BIDS WERE NOT PERMITTED, TO TELEGRAPHIC MODIFICATIONS ACTUALLY RECEIVED PRIOR TO BID OPENING.

HOWEVER, WE FEEL THAT AN EXAMINATION OF THE HISTORY OF THESE PROVISIONS SHOWS THAT THE LONG STANDING INTERPRETATION OF THIS OFFICE ACCORDS WITH THE EXPRESSED INTENTION OF THE WRITERS OF ASPR.

THE FIRST SERVICE-WIDE PROCUREMENT REGULATION, THE ARMY PROCUREMENT REGULATION, REVISION OF NOVEMBER 1, 1947, ADOPTED AS THE JOINT PROCUREMENT REGULATION ON JANUARY 15, 1948, PROVIDED IN PARAGRAPH 3 107 FOR THE TELEGRAPHIC MODIFICATION OF BIDS "* * * IF RECEIVED PRIOR TO THE HOUR FOR OPENING," AND IN PARAGRAPH 3-114 PROVIDED FOR CONSIDERATION OF LATE MAILED BIDS WHEN IT WAS SHOWN THE LATENESS WAS "DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.' THE REGULATION DID NOT PERMIT NOR MENTION LATE BID TREATMENT IN THE CASE OF LATE TELEGRAPHIC MODIFICATIONS.

A PROVISION, COUCHED IN LANGUAGE WHICH TAKEN ALONE WOULD PROHIBIT MODIFICATIONS NOT RECEIVED PRIOR TO BID OPENING, HAS REMAINED SUBSTANTIALLY UNCHANGED EVEN THOUGH ASPR HAD BEEN REVISED TO INCLUDE A PARAGRAPH WHICH EXPRESSLY PROVIDES FOR LATE BID TREATMENT OF TELEGRAPHIC MODIFICATIONS AND WITHDRAWALS. THE REVISION WHICH EFFECTED THIS CHANGE, REVISION NO. 49 OF THE 1955 EDITION OF ASPR, ISSUED OCTOBER 1, 1959, IN PARAGRAPH 2-304 RETAINED THE OLD LANGUAGE PROHIBITING CONSIDERATION OF MODIFICATIONS WHICH WERE NOT RECEIVED PRIOR TO BID OPENING, EVEN THOUGH IT INCLUDED, FOR THE FIRST TIME, PARAGRAPH 2-305, EXPLICITLY AUTHORIZING UNDER STATED CIRCUMSTANCES THE CONSIDERATION OF BOTH LATE TELEGRAPHIC AND LATE MAIL MODIFICATIONS AND WITHDRAWALS.

THE TRANSMITTAL SHEET COVERING THIS REVISION STATED THAT ASPR "* * * HAS BEEN REWRITTEN TO REFLECT AGREEMENT WITH RESPECT TO PROVISIONS OF GSA GENERAL REGULATION NO. 22, DATED FEBRUARY 2, 1959, WHICH RELATION TO THE TREATMENT OF LATE BIDS, MODIFICATIONS AND WITHDRAWALS.'

THE REFERENCED GSA REGULATION, IN PARAGRAPH 2 (A) (2) PERMITTED CONSIDERATION OF TELEGRAPHIC BIDS WHICH WERE LATE DUE TO:

"DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT, ON THE PART OF THE BIDDER. PROVIDED, THAT THE INVITATION FOR BIDS SPECIFICALLY AUTHORIZED TELEGRAPHIC BIDS: OR * * *.'

THIS WOULD INDICATE THAT CONSIDERATION OF LATE TELEGRAPHIC BIDS WAS LIMITED TO THE CONDITION STATED, THAT IS, THOSE CASES WHERE TELEGRAPHIC BIDS WERE SPECIFICALLY AUTHORIZED. HOWEVER, PARAGRAPH 9.A (2) (B) PERMITTED CONSIDERATION OF LATE TELEGRAPHIC MODIFICATIONS OR WITHDRAWALS WITHOUT REFERENCE TO ANY LIMITING PROVISO WHEN THE TELEGRAPHIC MODIFICATION WAS LATE DUE TO:

"DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER: OR * * *.'

WE FEEL THAT SINCE THE ASPR REVISION WAS DRAFTED TO REFLECT AGREEMENT WITH THIS GSA REGULATION, ASPR SHOULD BE READ IN LIGHT OF THIS LANGUAGE PERMITTING LATE BID TREATMENT FOR TELEGRAPHIC MODIFICATION WITHOUT MENTION OF WHETHER TELEGRAPHIC OFFERS WERE AUTHORIZED. FOR THIS REASON THE RETENTION OF LANGUAGE WHICH MIGHT LEAD TO AN OPPOSITE CONCLUSION APPEARS TO BE AN OVERSIGHT. THIS CONCLUSION ACCORDS WITH THE CONSISTENT INTERPRETATION GIVEN TO THIS PARAGRAPH BY THIS OFFICE EVER SINCE REVISION 49 OF THE 1955 EDITION OF ASPR. SEE 39 COMP. GEN. 386, 588 AND 40 COMP. GEN. 290, 292-93.

AS A PRACTICAL MATTER, TREATING LATE MODIFICATIONS AS IF THEY WERE LATE BIDS SEEMS BOTH REASONABLE AND WORKABLE, AND WE ARE NOT AWARE OF ANY ADMINISTRATIVE OBJECTIONS TO THE PRESENT PROCEDURE.

AS INDICATED ABOVE, WE RECOGNIZE THE MISLEADING EFFECT OF THE ALTERNATIVE INTERPRETATION YOU SUGGEST FOR THE ASPR PROVISIONS REGARDING TELEGRAPHIC MODIFICATION AND WE HAVE WRITTEN A LETTER TO THE DEPARTMENT OF THE AIR FORCE POINTING OUT THE DIFFICULTY AND SUGGESTING THE LANGUAGE BE CHANGED TO ELIMINATE THE PROBLEM.

AS TO YOUR FURTHER CONTENTION THAT, BECAUSE THE GOVERNMENT HAS SELECTED THE MAILS AS ITS MODE OF TRANSMISSION, BIDDERS WHO ELECT TO USE TELEGRAPHIC TRANSMISSION ARE RESPONSIBLE FOR ALL DELAYS IN THAT METHOD BECAUSE ITS USE IS ONLY PERMISSIVE, WE DO NOT AGREE. THIS CONTENTION MIGHT BE ARGUABLE UNDER DIFFERENT CIRCUMSTANCES BUT IT IS UNTENABLE HERE WHERE THE APPLICABLE REGULATION GOVERNING THE SUBJECT, PARAGRAPH 2-304 OF ASPR, DOES NOT DRAW SUCH A DISTINCTION BETWEEN MAILED MODIFICATIONS AND TELEGRAPHIC MODIFICATIONS.

FINALLY, WE FIND NO BASIS TO DISTURB THE FACTUAL DETERMINATION OF THE CONTRACTING OFFICER THAT GENTEX CORPORATION'S TELEGRAPHIC BID MODIFICATION WAS LATE DUE TO DELAY IN TRANSMISSION FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.