A-94771, MAY 19, 1938, 17 COMP. GEN. 961

A-94771: May 19, 1938

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- WAS NOT MAILED IN TIME TO ARRIVE AT THE PLACE WHERE THE BIDS WERE TO BE OPENED PRIOR TO THE HOUR SET FOR OPENING. - 6 TON 27.15 ATTACHED TO THE CONTRACT IS A LETTER. NO OTHER REFERENCE TO THE ALLEGED TELEPHONE CONVERSATION WAS FILED WITH THE CONTRACT. WAS RECEIVED. IN REPLY THERE WAS TRANSMITTED TO THIS OFFICE BY LETTER OF APRIL 19. AS FOLLOWS: LETTER FROM THE RONCEVERTE ICE AND PRODUCE COMPANY CONFIRMING THE CHANGES MADE BY TELEPHONE PRIOR TO OPENING OF THE BIDS WAS RECEIVED IN THIS OFFICE AT 8:30 A.M. THE TELEPHONE CONVERSATION WAS ACCEPTED AS SUFFICIENT AUTHORITY FOR THE MODIFICATION AND AWARD WAS MADE TO THE RONCEVERTE ICE AND PRODUCE CO. ALTHOUGH THE ACCEPTANCE WAS DATED JANUARY 7.

A-94771, MAY 19, 1938, 17 COMP. GEN. 961

ADVERTISING - BIDS - MODIFICATION BY TELEPHONE COMPETITIVE BIDS REQUIRED TO BE SUBMITTED IN WRITING AND SEALED MAY NOT BE MODIFIED BY TELEPHONE, AND WHERE A WRITTEN MODIFICATION OF A BID REGARDING A CHANGE OF PRICES THEREIN--- PURPORTING TO CONFIRM A TELEPHONE CONVERSATION BEFORE THE OPENING OF BIDS--- WAS NOT MAILED IN TIME TO ARRIVE AT THE PLACE WHERE THE BIDS WERE TO BE OPENED PRIOR TO THE HOUR SET FOR OPENING, THE CONTRACTOR MAY BE PAID ONLY IN ACCORDANCE WITH ITS SEALED BID.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, MAY 19, 1938:

THERE HAS BEEN BROUGHT TO MY ATTENTION CONTRACT NUMBERED J 6 C-1248 (PROPOSAL AND ACCEPTANCE) WITH RONCEVERTE ICE AND PRODUCE CO., RONCEVERTE, W.VA., FOR FURNISHING FORAGE, F.O.B. ALDERSON, W.VA.

IN RESPONSE TO AN INVITATION FOR SEALED BIDS TO BE PUBLICLY OPENED AT 2 P.M., JANUARY 7, 1938, THIS CONTRACTOR UNDER DATE OF JANUARY 6, 1938, SUBMITTED PRICES AS FOLLOWS:

CHART

ITEM UNIT

NO ARTICLES OR SERVICES QUANTITY UNIT PRICE

1 OATS, WHOLE U.S. STANDARD NO. 2, IN

32 LBS. TO BUSHEL. IN ACCORDANCE WITH

FED.SPEC. N-G-651--------------------- 3 TON $29.47

2 OATS, GROUND, U.S. STANDARD NO. 2.

ACCORDANCE WITH FED.SPEC. N-G-651----- 4 TON 29.55

3 CORN, CRACKED, U.S. STANDARD NO. 2 IN

ACCORDANCE WITH FED.SPEC. N-G-651----- 2 TON 31.50

ITEMS 4 TO 9 INCLUSIVE TO BE IN ACCORDANCE

WITH FED.SPEC. N-F-211

4 CORN GLUTEN MEAL---------------------- 4 TON 31.65

5CORN FEED MEAL--- YELLOW HOMINY------- 5 TON 27.90

6 COTTON SEED MEAL, 41 PERCENT PROTEIN,

PRIME QUALITY------------------------- 5 TON 30.80

7 HOMINY FEED, WHITE-------------------- 3 TON 27.90

8 LINSEED OIL MEAL, OLD PROCESS (BIDDER

TO STATE PROTEIN CONTENT/------------- 4 TON 46.90

9 BRAN, WHEAT--------------------------- 6 TON 27.15

ATTACHED TO THE CONTRACT IS A LETTER, DATED JANUARY 7, 1938, FROM THE CONTRACTOR, AS FOLLOWS:

CONFIRMING WITH TELEPHONE CONVERSATION OF JANUARY 7TH, AT NINE THIRTY A.M. REGARDING CHANGE IN PRICES FOR OUR BID ON YOUR FORM 165 FOR FEED.

WE BID ON OATS, $30.00 PER TON; 41 PERCENT COTTON SEED MEAL, $31.15; LINSEED OIL MEAL, $46.40; BRAN, $28.28.

NO OTHER REFERENCE TO THE ALLEGED TELEPHONE CONVERSATION WAS FILED WITH THE CONTRACT, AND, BY LETTER OF APRIL 6, 1938, TO THE DIRECTOR OF PRISONS, THIS OFFICE INVITED ATTENTION TO THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS, WHICH PROVIDE FOR THE MODIFICATION OF BIDS BY LETTER OR TELEGRAM RECEIVED PRIOR TO THE HOUR SET FOR OPENING BUT WHICH CONTAIN NO PROVISION FOR MODIFICATION BY TELEPHONE, AND REQUESTED INFORMATION AS TO WHEN THE ABOVE QUOTED LETTER OF JANUARY 7, 1938, WAS RECEIVED. IN REPLY THERE WAS TRANSMITTED TO THIS OFFICE BY LETTER OF APRIL 19, 1938, A STATEMENT DATED APRIL 15, 1938, FROM THE WARDEN OF THE PRISON, AS FOLLOWS:

LETTER FROM THE RONCEVERTE ICE AND PRODUCE COMPANY CONFIRMING THE CHANGES MADE BY TELEPHONE PRIOR TO OPENING OF THE BIDS WAS RECEIVED IN THIS OFFICE AT 8:30 A.M., JANUARY 8, 1938.

THE TELEPHONE CONVERSATION WAS ACCEPTED AS SUFFICIENT AUTHORITY FOR THE MODIFICATION AND AWARD WAS MADE TO THE RONCEVERTE ICE AND PRODUCE CO. ALTHOUGH THE ACCEPTANCE WAS DATED JANUARY 7, 1938, THE COPY OF ACCEPTANCE AND ORDER WAS NOT MAILED TO THE CONTRACTOR UNTIL AFTER RECEIPT OF THE WRITTEN CONFIRMATION. THIS WAS DONE TO PRECLUDE ANY CHANCE OF ERROR IN TAKING DOWN THE CHANGES GIVEN BY TELEPHONE.

OBVIOUSLY, COMPETITIVE BIDS REQUIRED TO BE SUBMITTED IN WRITING AND SEALED MAY NOT BE MODIFIED BY TELEPHONE; AND SINCE THE WRITTEN MODIFICATION IN THIS INSTANCE WAS NOT MAILED IN TIME TO ARRIVE AT THE PLACE WHERE THE BIDS WERE TO BE OPENED PRIOR TO THE HOUR SET FOR OPENING OF THE BIDS, THERE APPEARS NO LEGAL BASIS FOR THE PROPOSED CHANGE AND THE CONTRACTOR MAY BE PAID ONLY IN ACCORDANCE WITH THE SEALED BID.