B-170906, NOV. 9, 1970

B-170906, NOV. 9, 1970

BID PROTEST - LATE TELEGRAPHIC MODIFICATION DENIAL OF PROTEST AGAINST REFUSAL OF DEFENSE SURPLUS SALES OFFICE TO CONSIDER AS TIMELY TELEGRAPHIC BID MODIFICATION. A TELEGRAPHIC MODIFICATION WHICH WAS TRANSMITTED FROM LOS ANGELES BY WESTERN UNION, 57 MINUTES AFTER BID OPENING AND RECEIVED IN THE SALES OPENING OFFICE 10 MINUTES LATE, WAS PROPERLY REFUSED SINCE EVEN THOUGH THE MESSAGE MAY HAVE BEEN TELEPHONED TO THE WESTERN UNION OFFICE THE PRECEDING DAY, IT WAS NOT TRANSMITTED TO THE SALES OFFICE UNTIL AFTER BID OPENING AND THE DELAYED RECEIPT CAN IN NO WAY BE ATTRIBUTED TO THE GOVERNMENT.

TO SURPLUS TIRE SALES:

THIS IS IN REPLY TO YOUR TELEFAX OF SEPTEMBER 29, 1970, AND LETTER OF OCTOBER 3, 1970, WITH ENCLOSURES, PROTESTING THE REFUSAL OF THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA, TO CONSIDER AS TIMELY YOUR TELEGRAPHIC BID MODIFICATION UNDER INVITATION FOR BIDS NO. 44-1032.

THE INVITATION REQUESTED SUBMISSION OF BIDS FOR THE SPECIFIED SURPLUS GOVERNMENT PROPERTY BY 10:00 A.M., SEPTEMBER 24, 1970. PARAGRAPH 19 OF THE IFB'S ADDITIONAL GENERAL INFORMATION AND INSTRUCTIONS PROVIDES THAT ANY TELEGRAPHIC MODIFICATIONS OF BIDS ARE TO BE SENT TO THE SALES CONTRACTING OFFICER, DEFENSE SURPLUS SALES OFFICE, FAX, FML, OAKLAND, CALIFORNIA, "AND MUST BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING." THE INVITATION ALSO INCORPORATED BY REFERENCE SPECIAL SEALED BID CONDITIONS (DLSC FORM 437 (REV.), MARCH 69), AND ARTICLE AC THEREOF PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ARTICLE AC: CONSIDERATION OF LATE BIDS, MODIFICATIONS, OR WITHDRAWALS. BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF, MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING. ANY BID, MODIFICATION, OR WITHDRAWAL RECEIVED AFTER THE TIME SET FOR BID OPENING WILL NOT BE CONSIDERED UNLESS RECEIVED BY THE SALES CONTRACTING OFFICER PRIOR TO AWARD, WAS MAILED (OR TELEGRAPHED WHERE AUTHORIZED) AND IN FACT DELIVERED TO THE ADDRESS SPECIFIED IN THE INVITATION FOR BIDS IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME AND DATE SET FORTH IN THE INVITATION FOR THE BID OPENING, AND, EXCEPT FOR DELAY ATTRIBUTABLE TO PERSONNEL OF THE SALES OFFICE OR THEIR DESIGNEES WOULD HAVE BEEN RECEIVED ON TIME."

AT 7:42 P.M. ON THE EVENING PRECEDING THE BID OPENING DATE YOU REQUESTED THE LOS ANGELES WESTERN UNION OFFICE BY TELEPHONE TO DISPATCH A TELEGRAM (NIGHT LETTER) TO THE ADDRESS SPECIFIED IN THE INVITATION. YOUR TELEGRAM REQUESTED MODIFICATION OF YOUR PREVIOUS BIDS FOR ITEMS 85 AND 97 FROM INDIVIDUAL LINE ITEM BIDS TO AN ALL-OR-NONE BID FOR BOTH ITEMS.

THE RECORD SHOWS THAT THE OAKLAND SALES OFFICE IS EQUIPPED WITH A MACHINE FURNISHED BY WESTERN UNION DESIGNED FOR THE DIRECT RECEIPT OF TELEGRAPHIC MESSAGES. AN EXAMINATION OF THE TELEGRAPHIC MESSAGE IN QUESTION AS TRANSMITTED BY WESTERN UNION, A COPY OF WHICH HAS BEEN PROVIDED YOUR FIRM, INDICATES THAT THE MESSAGE WAS TRANSMITTED FROM LOS ANGELES BY WESTERN UNION AT 10:57 A.M., SEPTEMBER 24, 1970, OR 57 MINUTES AFTER BID OPENING, AND WAS RECEIVED BY THE GOVERNMENT AT 11:07 A.M.

IT IS YOUR POSITION THAT YOUR TELEGRAM SHOULD BE ACCEPTED AS A TIMELY MODIFICATION OF YOUR BID SINCE YOU ALLOWED SUFFICIENT TIME FOR TRANSMISSION. TO DEMONSTRATE THAT YOU ALLOWED SUFFICIENT TIME FOR TRANSMISSION, YOU SENT A TRIAL TELEGRAM FROM LOS ANGELES AT 8:00 P.M. ON SEPTEMBER 29, 1970, WHICH WAS RECEIVED AT THE OAKLAND OFFICE AT 8:16 A.M. THE NEXT MORNING. YOU ALSO SUGGEST THE POSSIBILITY THAT THE TELEGRAPH MACHINE AT THE OAKLAND OFFICE MAY HAVE BEEN OUT OF ORDER AND INCAPABLE OF RECEIVING MESSAGES ON THE MORNING OF THE BID OPENING. MOREOVER, IT IS ARGUED THAT EVEN IF YOUR TELEGRAPHIC MODIFICATION WAS RECEIVED AFTER BID OPENING IT WAS A MINOR FAULT WHICH THE CONTRACTING OFFICER SHOULD HAVE WAIVED SINCE THE MODIFICATION WAS RECEIVED PRIOR TO AWARD AND YOUR BID DEPOSIT WAS SUFFICIENT IN AMOUNT TO COVER THE BID AS MODIFIED.

IN CONNECTION WITH YOUR SUGGESTION THAT THE RECEIVING MACHINE MAY NOT HAVE BEEN OPERATING ON THE MORNING OF SEPTEMBER 24, THE SALES OFFICE ADVISES THAT THE EVIDENCE DOES NOT SUPPORT THIS SUGGESTION, SINCE OTHER TELEGRAPHIC MESSAGES WERE RECEIVED ON THAT DATE PRIOR TO BID OPENING.

UNDER THE ABOVE QUOTED PROVISION OF ARTICLE AC OF THE SPECIAL SEALED BID CONDITIONS, A MODIFICATION RECEIVED BY THE SALES CONTRACTING OFFICER AFTER THE TIME SET FOR BID OPENING, BUT BEFORE AWARD, COULD BE CONSIDERED ONLY UPON EVIDENCE ESTABLISHING THAT IT WAS IN FACT DELIVERED TO THE PLACE SPECIFIED IN THE INVITATION FOR BIDS (SALES OFFICE) IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER BY THE TIME SET FOR BID OPENING, AND BUT FOR THE DELAY ATTRIBUTABLE TO SALES PERSONNEL OR THEIR DESIGNEES WOULD HAVE BEEN ON TIME. NO ALLOWANCE IS MADE FOR OTHER POSSIBLE DELAYS; SUCH AS, SLOW OR NEGLIGENT HANDLING BY TELEGRAPH OFFICES.

IN THE PRESENT CASE THE TELEFAX WAS NOT TRANSMITTED BY WESTERN UNION TO THE SALES OFFICE UNTIL AFTER BID OPENING AND THE DELAYED RECEIPT, THEREFORE, CAN IN NO WAY BE ATTRIBUTED TO THE SALES OFFICE PERSONNEL OR THEIR DESIGNEES.

THE OMISSION OF AN ALLOWANCE IN ARTICLE AC FOR OTHER POSSIBLE DELAYS IS PURPOSELY DESIGNED TO AVOID THE LENGTHY PERIOD OF TIME REQUIRED TO DETERMINE WHETHER THE LATENESS OF A PARTICULAR LATE BID, MODIFICATION, OR WITHDRAWAL IS EXCUSABLE AND THE RESULTING DELAY IN AWARD AND REMOVAL OF SURPLUS PROPERTY. OUR OFFICE HAS PREVIOUSLY CONSIDERED AND ACCEPTED THESE REASONS AS JUSTIFICATION FOR THIS STRINGENT RULE, SEE B-162560, NOVEMBER 9, 1967. MOREOVER, IN FAIRNESS TO OTHER BIDDERS AND IN ORDER TO PROTECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, THE FACT THAT YOUR BID DEPOSIT WAS SUFFICIENT TO COVER YOUR BID AS MODIFIED WOULD NOT REMOVE THE NECESSITY FOR THE TIME CONSUMING DETERMINATION AS TO WHETHER OR NOT THE LATENESS WAS ATTRIBUTABLE TO YOUR ACTIONS.

WE NOTE THAT YOU HAVE DIRECTED OUR ATTENTION TO 36 COMP. GEN. 94 (1956) AND THE QUOTATION FROM SCOTT V UNITED STATES, 44 CT. CL. 524, 527 (1909), IN SUPPORT OF YOUR POSITION THAT THE GOVERNMENT MUST EITHER ACCEPT YOUR BID AS THE HIGHEST RESPONSIBLE BID OR REJECT ALL AND READVERTISE. THE CITED CASES ARE CLEARLY INAPPLICABLE HERE SINCE THEY CAN IN NO WAY BE CONSTRUED AS AUTHORITY FOR ACCEPTING BIDS OR MODIFICATIONS WHICH WERE NOT TIMELY RECEIVED OR FOR REJECTING AN OTHERWISE ACCEPTABLE TIMELY BID. SEE OUR CITED DECISION AT PAGE 97 WHERE WE STATE THAT THE FACTS SHOWED THAT THE BIDDER ENTITLED TO THE AWARD SUBMITTED A "TIMELY" AND PROPER BID.

ACCORDINGLY, WE MUST CONCUR WITH THE VIEW OF THE DEFENSE SUPPLY AGENCY THAT THE REFUSAL OF THE SALES OFFICE TO CONSIDER YOUR LATE BID MODIFICATION WAS PROPER UNDER THE TERMS OF THE INVITATION, AND YOUR PROTEST MUST THEREFORE BE DENIED.

EXHIBIT NO. 4 TO YOUR LETTER OF OCTOBER 3 IS RETURNED AS REQUESTED.