B-146295, NOV. 21, 1961

B-146295, NOV. 21, 1961

TO TRAMMELL, RAND AND NATHAN, ESQUIRES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 5, 1961, RELATING TO THE PROTEST FILED BY THE ARTHUR VENNERI COMPANY UNDER DATE OF AUGUST 31, 1961, AGAINST THE AWARD OF A CONTRACT TO OTHER THAN MISSILE SITES, INC., AT ITS BID PRICE OF $1,700,000, OR TO THE VENNERI COMPANY, UNDER INVITATION FOR BIDS NO. 2-61-156, ISSUED BY THE FEDERAL AVIATION AGENCY FOR THE CONSTRUCTION OF AN AIR ROUTE TRAFFIC CONTROL CENTER BUILDING AT MIAMI, FLORIDA.

UNDER DATE OF JULY 12, 1961, THE FEDERAL AVIATION AGENCY SUBMITTED FOR OUR CONSIDERATION THE MATTER OF THE PROTESTS BY MISSILE SITES, INC., AND THE INTERNATIONAL BUILDERS OF FLORIDA, INC., AGAINST THE AWARD OF ANY CONTRACT TO ANOTHER BIDDER UNDER THE ABOVE-CITED INVITATION FOR BIDS. FOR THE REASONS SET FORTH IN OUR DECISION DATED AUGUST 28, 1961, B-146295, TO THE CHAIRMAN, FEDERAL AVIATION AGENCY, WE TOOK THE POSITION THAT THE BID OF MISSILE SITES, INC., SHOULD BE EVALUATED AT $1,860,000, AND THE BID OF INTERNATIONAL BUILDERS AT $1,853,000. THE AGENCY HAS REPORTED THAT THE BID SUBMITTED BY THE ARTHUR VENNERI COMPANY WAS IN THE AMOUNT OF $1,949,000, AND THUS WAS HIGHER THAN THE BIDS OF MISSILE SITES AND INTERNATIONAL BUILDERS.

BY OUR LETTER OF OCTOBER 12, 1961, WE ADVISED YOU THAT INFORMATION HAD BEEN RECEIVED INFORMALLY FROM THE FEDERAL AVIATION AGENCY TO THE EFFECT THAT UNDER DATE OF SEPTEMBER 21, 1961, THE AGENCY AWARDED A CONTRACT IN THIS CASE TO INTERNATIONAL BUILDERS AND THAT THEREFORE CERTAIN SUGGESTIONS CONTAINED IN YOUR LETTER ARE NOT FOR CONSIDERATION AT THIS TIME. CONSEQUENTLY, WHAT IS SAID HEREIN RELATES PRIMARILY TO THE RIGHT OF INTERNATIONAL BUILDERS TO RECEIVE AN AWARD.

FOR THE REASONS SET FORTH IN YOUR LETTER OF OCTOBER 5, 1961, YOU PROTEST THE AWARD OF A CONTRACT IN THIS CASE TO ANYONE BUT THE ARTHUR VENNERI COMPANY AT ITS BID PRICE OF $1,949,000, OR, IN THE ALTERNATIVE, IF AN AWARD IS TO BE MADE TO MISSILE SITES, INC., IT CAN ONLY BE MADE AT THE PRICE OF $1,700,000. IN SUPPORT OF YOUR POSITION YOU STATED, AMONG OTHER THINGS, THAT THE CIRCUMSTANCES SURROUNDING THE BID OPENING SHOULD GIVE RISE TO CONCERN, IF NOT SUSPICION, IT BEING POINTED OUT THAT WHILE TELEGRAPHIC BIDS APPARENTLY WERE AUTHORIZED IN CONNECTION WITH THE INVITATION INVOLVED, IT MUST BE NOTED THAT NONE OF THE BID MODIFICATIONS RELIED UPON IN OUR DECISION OF AUGUST 28, 1961, WAS RECEIVED IN ITS FINALLY ACCEPTED FORM UNTIL LONG AFTER CONCLUSION OF THE BID OPENING. CONCERNING THIS SITUATION, YOU MADE THE FOLLOWING STATEMENT:

"BOTH INTERNATIONAL AND MISSILE SITES OBTAINED THE RESULT OF THE BID OPENING BY LONG-DISTANCE TELEPHONE PRIOR TO THEIR ATTEMPTED MODIFICATIONS OF THESE BIDS BEING RECEIVED BY THE CONTRACTING OFFICER.'

YOU THEN WENT ON TO POINT OUT THAT THE TELEGRAPHIC MODIFICATIONS BY INTERNATIONAL BUILDERS OF ITS ORIGINAL BID PRICE WAS NOT RECEIVED UNTIL AFTER THE BID OPENING AND THAT IT WAS NOT DELAY IN TRANSMISSION THAT CAUSED IT; ALSO, THAT INTERNATIONAL BUILDERS, IN EFFECT, WOULD HAVE HAD "TWO SHOTS" AT THE BID IF THE BELATED SECOND MODIFICATION WERE ALLOWED. THE CASE OF WESTERN UNION TELEGRAPH COMPANY V. COWIN AND COMPANY, 20 F.2D 103, WAS CITED BY YOU AS SUPPORTING THE POSITION OF YOUR CLIENT, AND IT WAS SUGGESTED THAT BY ACCEPTING THE BID OF INTERNATIONAL BUILDERS, THE GOVERNMENT WOULD BE THROWING OPEN THE DOORS TO ALL TYPES OF DEVICES, ENABLING CONTRACTORS TO ,SECOND-GUESS" THEIR BIDS, TO COLLUSIVE PRACTICES WITH INDIVIDUALS EMPLOYED BY TELEGRAPH COMPANIES AND WOULD BE CREATING THE VERY CONDITION IT SEEKS TO AVOID, THAT IS TO SAY, UNDERMINING CONFIDENCE IN COMPETITIVE BIDDING.

WE FEEL THAT WE SHOULD COMMENT ON THE STATEMENT IN NOTE 2 (PAGE FIVE) OF YOUR LETTER, TO THE EFFECT THAT THE MODIFICATIONS BY BOTH INTERNATIONAL BUILDERS AND MISSILE SITES ARRIVED LONG AFTER THE READING OF THE BID RESULTS HAD BEEN COMPLETED AND THAT THE BIDDERS CERTAINLY WERE NOT FREE OF "FAULT OR NEGLIGENCE" IN CAUSING THE LATE ARRIVAL OF THE TELEGRAPHIC MODIFICATIONS. INSOFAR AS INTERNATIONAL BUILDERS IS CONCERNED, THE RECORD SHOWS THAT A TELEGRAM WAS RECEIVED FROM THAT CONCERN AT 12:45 P.M., C.S.T., ON JUNE 23, 1961--- MORE THAN AN HOUR PRIOR TO THE BID OPENING. IT IS TRUE THAT THIS MESSAGE WAS GARBLED IN TRANSMISSION AND THAT THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE WHAT EFFECT THE SAME WOULD HAVE ON THE ORIGINAL BID. IT IS OUR VIEW THAT INTERNATIONAL BUILDERS WAS NOT AT FAULT IN THIS MATTER SINCE THE MIAMI OFFICE OF WESTERN UNION ADMITTED THE ERROR WAS IN TRANSMISSION, IT BEING STATED BY WESTERN UNION THAT THE ORIGINAL MESSAGE FILED BY INTERNATIONAL BUILDERS STATED A DEDUCTION OF $147,000. SEE THE TELETYPE MESSAGE QUOTED ON PAGE THREE OF OUR DECISION. IT SEEMS PERFECTLY CLEAR THAT INTERNATIONAL BUILDERS RELIED UPON WESTERN UNION TO ACCURATELY TRANSMIT THE MESSAGE FILED AT MIAMI--- THAT CONCERN WAS IN NO WAY RESPONSIBLE FOR THE ERROR, AND WAS NOT AWARE OF THE ERROR UNTIL MR. DUMONT TELEPHONED THE CONTRACTING OFFICER--- AFTER THE BID OPENING--- TO ASCERTAIN THE BID RESULTS. FOR THESE REASONS, WE ARE UNABLE TO ACCEPT YOUR STATEMENT THAT INTERNATIONAL BUILDERS WAS NOT FREE OF "FAULT OR NEGLIGENCE" IN CAUSING THE LATE ARRIVAL OF THE TELEGRAPHIC COMMUNICATIONS.

WITH LETTER OF AUGUST 28, 1961, WE TRANSMITTED TO YOUR CLIENT A COPY OF OUR DECISION OF THAT DAY TO THE FEDERAL AVIATION AGENCY, AND IT THUS APPEARS TO BE UNNECESSARY TO MAKE EXTENDED REFERENCE TO WHAT WE SAID THEREIN. WE DO WISH, HOWEVER, TO REFER BRIEFLY TO CERTAIN OF THE REASONS SET FORTH IN OUR DECISION IN SUPPORT OF OUR CONCLUSIONS. BUT, BEFORE DOING SO, IT SEEMS APPROPRIATE TO SAY THAT WE FIND NOTHING

IN THE RECORD BEFORE US TO SUPPORT ANY ASSUMPTION OF WRONG DOING OR BAD FAITH ON THE PART EITHER OF INTERNATIONAL BUILDERS OR WESTERN UNION. IS OUR VIEW THAT THE TELEGRAPHIC AMENDMENT TRANSMITTED BY INTERNATIONAL BUILDERS CONSTITUTED A BONA FIDE MODIFICATION OF ITS ORIGINAL BID.

ON PAGES FOUR AND FIVE OF OUR DECISION OF AUGUST 28, 1961, WE DISCUSSED AT LENGTH THE SEVERAL MATTERS WHICH WE CONSIDERED PERTINENT TO THE DISPOSITION OF THE PROTESTS FILED IN THIS CASE, AND ON THE BASIS OF THE RECORD WE MADE THE FOLLOWING STATEMENT:

"* * * THE EVIDENCE AS TO THE CORRECT MODIFICATION DEMONSTRATES CONCLUSIVELY THAT IT WAS MADE TIMELY AND THAT IT WAS A DEDUCTION OF $147,000. WE BELIEVE IN SUCH CIRCUMSTANCES THE RULE AGAINST DISPLACEMENT CORRECTIONS SHOULD NOT APPLY, AND THAT CORRECTION OF INTERNATIONAL BUILDERS' BID TO $1,853,000 SHOULD BE PERMITTED.'

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE STATEMENTS CONTAINED IN YOUR LETTER OF OCTOBER 5, 1961, BUT WE FIND NOTHING THEREIN WHICH WOULD JUSTIFY OUR OFFICE IN CHANGING THE POSITION TAKEN IN OUR DECISION OF AUGUST 28, 1961, NAMELY, THAT THE BID OF INTERNATIONAL BUILDERS SHOULD BE EVALUATED AT THE AMENDED BID PRICE OF $1,853,000. ALSO, SINCE A CONTRACT WAS AWARDED IN THIS CASE FOLLOWING OUR DECISION OF AUGUST 28, 1961, IT FOLLOWS THAT WE WOULD NOT BE JUSTIFIED IN DIRECTING ..END :