B-113331, JAN 19, 1953

B-113331: Jan 19, 1953

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED DECEMBER 31. REQUESTING THAT A DECISION BE RENDERED TO THE CONTRACTING OFFICER AS TO WHETHER ACCEPTANCE IS AUTHORIZED OF TELEGRAPHIC MODIFICATIONS OF THE BIDS SUBMITTED BY E. SINCE AWARDS HAVE BEEN MADE IN THE PRESENT CASES. THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. THE DECISION IS BEING ADDRESSED TO YOU. IT IS STATED THAT - "C. AFTER OPENING OF BIDS AND BEFORE AWARD WAS MADE. A TELEGRAM WAS RECEIVED AT 2:16 PM 14 NOV 52 INCREASING THE AMOUNT OF THE E. A COPY OF THE TELEGRAM WITH LETTER OF CONFIRMATION ARE ATTACHED AS INCLOSURES NOS. 7 & 8. 99"D. A LETTER WAS FORWARDED TO THE BIDDER REQUESTING ALL DOCUMENTS AND EVIDENCE REQUIRED FOR PROCESSING THE MODIFICATION AS A MISTAKE IN BID.

B-113331, JAN 19, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 31, 1952, FROM THE DEPUTY DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDING A LETTER DATED DECEMBER 2, 1952, AND ENCLOSURES, FROM JIMMIE L. NEFF, CONTRACTING OFFICER, AIR FORCE MISSILE TEST CENTER, PATRICK AIR FORCE BASE, FLORIDA, AND REQUESTING THAT A DECISION BE RENDERED TO THE CONTRACTING OFFICER AS TO WHETHER ACCEPTANCE IS AUTHORIZED OF TELEGRAPHIC MODIFICATIONS OF THE BIDS SUBMITTED BY E. P. AUSTIN & COMPANY, EACH DATED NOVEMBER 10, 1952.

SINCE AWARDS HAVE BEEN MADE IN THE PRESENT CASES, THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. SEE 26 COMP. GEN. 993; AND 28 ID. 401. HOWEVER, SINCE A PROMPT DECISION APPEARS NECESSARY, THE DECISION IS BEING ADDRESSED TO YOU.

BY INVITATIONS NOS. 08-606-53-9 AND 08-606-53-10, THE AIR FORCE MISSILE TEST CENTER, PATRICK AIR FORCE BASE, FLORIDA, INVITED BIDS - EACH TO BE OPENED AT 2 P.M. EASTERN STANDARD TIME ON NOVEMBER 14, 1952 FOR FURNISHING SERVICES AND MATERIALS FOR THE MODIFICATION OF CERTAIN BUILDINGS AT THE BASE PURSUANT TO THE DRAWINGS AND SPECIFICATIONS MADE A PART THEREOF. RESPONSE TO THE INVITATIONS, E. P. AUSTIN & COMPANY SUBMITTED TWO BIDS EACH DATED NOVEMBER 10, 1952, OFFERING TO PERFORM THE WORK UNDER INVITATION NO. 08-606-53-9 FOR $36,985, AND UNDER INVITATION NO. 08-606-53 -10 FOR $17,030. THE ONLY OTHER BID RECEIVED UNDER INVITATION NO. 08-606- 53-9 SPECIFIED A PRICE OF $40,900, AND THE ONLY OTHER BID RECEIVED UNDER INVITATION NO. 08-606-53-10 SPECIFIED A PRICE OF $25,800.

IN THE CONTRACTING OFFICER'S LETTER OF DECEMBER 2, 1952, IT IS STATED THAT -

"C. AFTER OPENING OF BIDS AND BEFORE AWARD WAS MADE, A TELEGRAM WAS RECEIVED AT 2:16 PM 14 NOV 52 INCREASING THE AMOUNT OF THE E. P. AUSTIN & CO. BID ON INVITATION NO. 08-606-53-9 BY $3,800.00 AND INVITATION NO. 08- 606-53-10 BY $5,600.00. IF ACCEPTED, THE BIDS WOULD BE INCREASED TO $40,785.00 OR $115.00 LOWER THAN THE NEXT LOWEST BID, AND 2,630.00 OR $3,170.00 LOWER THAN THE NEXT LOWEST BID. A COPY OF THE TELEGRAM WITH LETTER OF CONFIRMATION ARE ATTACHED AS INCLOSURES NOS. 7 & 8. 99"D. ON 17 NOV 1952, A LETTER WAS FORWARDED TO THE BIDDER REQUESTING ALL DOCUMENTS AND EVIDENCE REQUIRED FOR PROCESSING THE MODIFICATION AS A MISTAKE IN BID. A LETTER DATED 20 NOV 1952 WAS RECEIVED FROM THE BIDDER STATING THAT HE DID NOT DESIRE TO PROCESS THE MODIFICATION AS A MISTAKE IN BID. THE STATEMENT MADE IN THE 8TH PARAGRAPH OF THE BIDDER'S LETTER QUOTING TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER IS IN ERROR. THE BIDDER WAS ADVISED BY TELEPHONE THAT THE MESSAGE WAS RECEIVED AT COCOA, FLORIDA AT 1:24 PM RATHER THAN BEING RECEIVED AT PATRICK AIR FORCE BASE AT THAT TIME. THE LETTERS ARE ATTACHED AS INCLOSURE NOS. 9 & 10.

"E. A LETTER DATED 18 NOV 1952 WAS RECEIVED FROM THE BIDDER INCLOSING A LETTER FROM THE WESTERN UNION TELEGRAPH CO. DATED 18 NOV 52 STATING THAT THE MESSAGE WAS FILED IN MIAMI, FLORIDA AT 12:47 PM, TRANSMITTED FROM MIAMI AT 1:02 PM, RECEIVED AT THE COCOA, FLORIDA OFFICE AT 1:24 PM, AND TRANSMITTED OVER THE PRIVATE WIRE OF THIS BASE AT 2:15 PM. THE TIME ON THE FACE OF THE MESSAGE INDICATES RECEIPT AT 2:16 PM, AND THAT IT WAS ENTERED ON THE LOG AT 2:19 PM. IT IS ALSO STATED BY WESTERN UNION THAT THE PATRICK AIR FORCE BASE OPERATOR WAS USING THE PRIVATE LINE TO THE BASE FROM 1:24 PM, UNTIL 2:15 PM AND THAT IT WAS IMPOSSIBLE TO TRANSMIT THE MESSAGE FROM COCOA TO THIS BASE EARLIER. LETTER DATED 18 NOV 1952 WITH ATTACHMENT IS SUBMITTED AS INCLOSURE NO. 11.

"F. SINCE THE AWARD WAS SUBJECT TO APPROVAL BY THE DIRECTOR OF PROCUREMENT, HEADQUARTERS, AIR RESEARCH & DEVELOPMENT COMMAND, ON 21 NOV 1952 TO OBTAIN APPROVAL IN THE EVENT THE MODIFICATION SHOULD BE ACCEPTED. THE DIRECTOR OF PROCUREMENT NOTIFIED THE CONTRACTING OFFICER THAT AWARD WOULD NOT BE APPROVED, AND RECOMMENDED THAT AWARDS BE MADE AT THE ORIGINAL BID PRICES SUBJECT TO CHANGE IF AUTHORIZED BY THE COMPTROLLER GENERAL. 10:15 AM, 24 NOV 1952, THE CONTRACTING OFFICER INFORMED THE BIDDER BY TELEPHONE THAT AWARD OF THE CONTRACTS WERE BEING MADE AT THE ORIGINAL BID PRICES SUBJECT TO CORRECTION IF AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE. THE BIDDER WAS REQUESTED TO FURNISH ALL DETAILED INFORMATION, INCLUDING WORK SHEETS AND OTHER EVIDENCE IN ORDER THAT THE CASE COULD BE FORWARDED FOR A DECISION. TELEGRAPHIC NOTICE OF AWARDS WERE FORWARDED TO THE BIDDER AT 11:32 AM AND 11:37 AM, 24 NOV 1952. MESSAGES ARE ATTACHED AS INCLOSURE NOS. 12 & 13.

"G. A TELEGRAM WAS RECEIVED FROM THE BIDDER ON 24 NOV 1952 FILING NOTICE OF DISCREPANCY IN THE CONTRACT AMOUNTS AND REQUESTING THAT NO FORMAL ACTION BE TAKEN UNTIL THE BID PRICES ARE ESTABLISHED. ACCORDINGLY, THE FORMAL CONTRACTS HAVE NOT BEEN FORWARDED TO THE BIDDER FOR SIGNATURE. THE TELEGRAM IS ATTACHED AS INCLOSURE NO. 14.

"H. A LETTER WAS RECEIVED FROM THE BIDDER DATED 25 NOV 1952, SETTING FORTH THE DETAILS OF WHY THE MODIFICATION WAS MADE AND INCLOSING WORK SHEETS. LETTER WITH INCLOSURES IS ATTACHED AS INCLOSURE NO. 15.

"3. PARAGRAPH 11, U.S. STANDARD FORM NO. 22 'INSTRUCTIONS TO BIDDERS,' WHICH WAS INCLOSED WITH EACH INVITATION, STATES IN PART, 'UNLESS SPECIFICALLY AUTHORIZED, TELEGRAPHIC BIDS WILL NOT BE CONSIDERED, BUT MODIFICATIONS BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE HOUR SET FOR THE OPENING."

ON THE BASIS OF THE FACTS OF RECORD IT APPEARS THAT THE LATE ARRIVAL OF THE TELEGRAM OF NOVEMBER 14, 1952, FROM E. P. AUSTIN & COMPANY WAS THE TELEGRAM WAS FILED AT MIAMI, FLORIDA, AT 12:47 P.M. EASTERN STANDARD TIME, OR MORE THAN AN HOUR PRIOR TO THE TIME SCHEDULED FOR THE OPENING OF BIDS, IT IS EVIDENT THAT, WHILE THE TELEGRAM WAS NOT RECEIVED BY THE CONTRACTING OFFICE UNTIL 16 MINUTES AFTER THE TIME FIXED FOR OPENING OF BIDS, THE COMPANY COULD HAVE HAD NO KNOWLEDGE OF THE AMOUNTS OF THE OTHER BIDS RECEIVED AND THAT THE PURPOSE OF THE TELEGRAM WAS NOT TO TAKE ADVANTAGE OF THE OTHER BIDDER OR THE UNITED STATES.

THE E. P. AUSTIN COMPANY HAS FURNISHED ITS ORIGINAL WORK SHEETS SHOWING THE BASIS FOR ITS ORIGINAL BID AND EXPLAINED THE CHANGED CONDITIONS WHICH NECESSITATED THE INCREASE IN ITS BID. AS POINTED OUT IN THE CONTRACTING OFFICER'S LETTER THE COMPANY'S BIDS, AS MODIFIED BY THE TELEGRAM OF NOVEMBER 14, 1952, ARE STILL THE LOW BIDS.

ACCORDINGLY, THE TWO BIDS OF THE COMPANY - BOTH ACCEPTED SUBJECT TO THE DECISION OF THIS OFFICE AS TO WHETHER THEY MAY BE MODIFIED BY THE TELEGRAM OF NOVEMBER 14, 1952 - MAY BE CORRECTED TO PROVIDE A PRICE OF $40,785 UNDER INVITATION NO. 08-606-53-9, AND A PRICE OF $22,630 UNDER INVITATION NO. 08-606-53-10, WHICH ARE STILL THE LOWEST BIDS.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACTS OR ON THE VOUCHERS COVERING PAYMENT FOR THE SERVICES RENDERED.

THE PAPERS SUBMITTED BY THE CONTRACTING OFFICER ARE FORWARDED HEREWITH.