B-154451, JUN. 25, 1964

B-154451, JUN. 25, 1964

TO MR. E. F. HOGLUND, CONSTRUCTION CONTRACTING OFFICER, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER 086D OF JUNE 11, 1964, REQUESTING A DECISION WHETHER THERE SHOULD BE CONSIDERED IN THE EVALUATION OF BIDS A TELEGRAM RECEIVED AFTER THE OPENING OF BIDS FROM THE CARL E. ERICKSON COMPANY REDUCING THE BIDS SUBMITTED FOR PROJECT 12-5324 BY $160,000.

IF THE TELEGRAPHIC MODIFICATION IS CONSIDERED ERICKSON IS THE LOWEST BIDDER BY $8,000. IF THE TELEGRAPHIC MODIFICATION IS NOT CONSIDERED, THE COMPANY IS THE HIGHEST BIDDER, HAVING BID $3,000,000 AND THE OTHER TWO BIDDERS HAVING BID $2,848,000 AND $2,983,000.

AN HOUR AND FORTY MINUTES BEFORE BID OPENING, THE CARL E. ERICKSON COMPANY FILED WITH WESTERN UNION IN CHICAGO, ILLINOIS, A MESSAGE ADDRESSED TO THE CONSTRUCTION CONTRACTING OFFICER, VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C., MODIFYING ITS BID. ACCORDING TO CORRESPONDENCE FROM WESTERN UNION, THE TELEGRAM WAS TRANSMITTED FROM CHICAGO SIX MINUTES THEREAFTER AND WAS TO BE SWITCHED TO A VETERANS ADMINISTRATION TIELINE IN WASHINGTON, D.C., TWENTY MINUTES BEFORE BID OPENING TIME WHEN A WESTERN UNION CLERK OBSERVED A DISCREPANCY IN THE AMOUNT OF THE MODIFICATION IN THE BODY OF THE TELEGRAM AND IN THE BOTTOM LINE WHICH REPEATED THE FIGURES USED IN THE TELEGRAM. AS A RESULT OF THIS DISCREPANCY, THE WASHINGTON CLERK DECIDED TO SEEK CLARIFICATION FROM CHICAGO. APPARENTLY, THE CLERK DID NOT INITIATE SUCH ACTION UNTIL ABOUT AN HOUR LATER, WHICH WAS THEN PAST BID OPENING TIME, AND DID NOT RECEIVE THE REQUESTED INFORMATION UNTIL ABOUT A COUPLE OF HOURS AFTER THE REQUEST WAS INITIATED WITH THE RESULT THAT THE VETERANS ADMINISTRATION TELECOMMUNICATIONS ROOM DID NOT RECEIVE THE TELEGRAM UNTIL ALMOST THREE HOURS AFTER BID OPENING.

THE EVIDENCE FURNISHED FROM WESTERN UNION IS DIRECTED SOLELY TO THE HANDLING OF THE TELEGRAM AFTER IT WAS RECEIVED IN THE WASHINGTON WESTERN UNION OFFICE. HOWEVER, IN OUR OPINION, SUCH EVIDENCE IS NOT MATERIAL TO THE DISPOSITION OF THIS CASE, SINCE IT IS NOT DEFINITELY ESTABLISHED THAT THE TELEGRAM WOULD HAVE ARRIVED ON TIME IF STEPS WERE NOT TAKEN TO CLARIFY THE DISCREPANCY.

THE TERMS OF THE INVITATION FOR BIDS PROVIDED FOR RECEIPT OF BIDS IN THE OFFICE OF THE CONSTRUCTION CONTRACTING OFFICER. IN RESPECT TO A TELEGRAM RECEIVED FROM ANOTHER BIDDER PRIOR TO THE OPENING OF BIDS IT IS SHOWN THAT IT TOOK 26 MINUTES FROM THE TIME IT WAS TRANSMITTED FROM WASHINGTON WESTERN UNION UNTIL IT WAS COMMUNICATED BY TELEPHONE TO THE OFFICE OF THE CONSTRUCTION CONTRACTING OFFICER. THEREFORE, IN THE FACE OF THIS 26- MINUTE TRANSMISSION TIME, IT DOES NOT APPEAR THAT THE 20 MINUTES WHICH EXISTED AFTER THE CARL E. ERICKSON TELEGRAM WAS READY TO BE PLACED ON THE TIELINE BEFORE CONFIRMATION WAS SOUGHT WAS SO SUFFICIENTLY ADEQUATE AS TO CONVINCINGLY ESTABLISH THAT THE TELEGRAM WOULD HAVE BEEN RECEIVED ON TIME. AS TO THE HOUR AND TWENTY MINUTES IT TOOK FROM THE TIME OF FILING THE TELEGRAM UNTIL IT WAS READY TO BE PLACED ON THE TIELINE, THERE IS NO SHOWING THAT SUCH TRANSMISSION TIME RESULTED FROM ANYTHING MORE THAN THE LOAD OF THE SERVICE.

WE RECOGNIZE THAT IN ONE LETTER WESTERN UNION STATES THAT "ACCORDING TO OUR RECORDS THE MESSAGE WAS FILED IN SUFFICIENT TIME TO MAKE THE BID.' HOWEVER, WHILE SUCH STATEMENT INDICATES THAT THE TELEGRAM COULD HAVE ARRIVED ON TIME, THE EVIDENCE DOES NOT SHOW THAT A LATER ARRIVAL WOULD NOT HAVE BEEN POSSIBLE UNDER NORMAL TRANSMISSION PROCEDURE.

IN THAT CONNECTION, THE FEDERAL PROCUREMENT REGULATIONS (SECTIONS 1 2.305, 1-2.303-2 AND 1-2.303-4) AUTHORIZE CONSIDERATION OF A LATE TELEGRAPHIC BID MODIFICATION IF THE LATENESS WAS DUE TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND THE BIDDER SHOWS BY CLEAR AND CONVINCING EVIDENCE THAT THE TELEGRAM WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.

IN THE IMMEDIATE CASE THERE IS NO SHOWING BY POSITIVE EVIDENCE THAT OTHER THAN NORMAL TRANSMISSION PROCEDURE WAS FOLLOWED PRIOR TO THE TIME THE TELEGRAM WAS READY TO BE PLACED ON THE TIELINE TWENTY MINUTES BEFORE BID OPENING. IT MAY BE THAT WESTERN UNION ORDINARILY HAS BETTER TRANSMISSION TIME BETWEEN CHICAGO AND WASHINGTON, BUT UNLESS IT BE SHOWN THAT THE DELAY IN THIS CASE RESULTED FROM FAILURE TO FOLLOW REGULAR PROCEDURE, THE DELAY IS A RESPONSIBILITY THE BIDDER MUST BEAR.

IN 39 COMP. GEN. 586 AND 40 COMP. GEN. 290, IT WAS HELD THAT THE BIDDER MUST BEAR THE RESPONSIBILITY OF LATE ARRIVAL OF A TELEGRAPHIC MODIFICATION. IN SUCH CASES THE LATE MODIFICATION IS UNACCEPTABLE UNLESS THE BIDDER SUSTAINS THE BURDEN OF PROVING THAT THE TELEGRAM WAS LATE BECAUSE OF UNUSUAL OR ABNORMAL DELAYS IN TRANSMISSION. UNDER THE PRINCIPLES ESTABLISHED BY THESE DECISIONS, IT IS NOT ENOUGH FOR A BIDDER TO SHOW THAT THE TELEGRAM COULD HAVE BEEN DELIVERED TIMELY UNDER FAVORABLE CONDITIONS. THE BIDDER MUST GO FURTHER AND DEMONSTRATE THAT THE LATE ARRIVAL OF THE TELEGRAM WAS NOT DUE TO NORMAL, USUAL AND FORESEEABLE DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPHIC COMPANY ACCOMPLISHES ITS WORK. IN THAT CONNECTION, IT WAS OBSERVED IN THE DECISION IN 40 COMP. GEN. 290 THAT DELIVERY BY TELEGRAPH IS DEPENDENT UPON OPERATING CONDITIONS AND VOLUME OF BUSINESS WHICH VARIES FROM HOUR TO HOUR AND DAY TO DAY. IN B-144206, DECEMBER 29, 1960, REFERRING TO THE FOREGOING DECISIONS, IT WAS STATED:

"WE THINK THESE DECISIONS CLEARLY ESTABLISH THE PRINCIPLE THAT IT IS NOT ENOUGH TO MERELY SHOW THAT THE TELEGRAPHIC MESSAGE WAS DELAYED BEYOND THE "OPTIMUM" CONDITIONS THE TELEGRAPH COMPANY MAY ENDEAVOR TO MAINTAIN. RATHER IT IS NECESSARY THAT THE BIDDER ESTABLISH THAT THE HANDLING HIS MESSAGE RECEIVED WAS OTHER THAN ROUTINE. * * *"

IT HAS NOT BEEN DEFINITELY ESTABLISHED THAT THE TELEGRAM UNDER NORMAL TRANSMISSION PROCEDURE WOULD HAVE ARRIVED ON TIME. ACCORDINGLY, IN THE CIRCUMSTANCES, THE TELEGRAPHIC BID MODIFICATION SHOULD BE DISREGARDED IN THE CONSIDERATION OF BIDS.