B-126563, FEBRUARY 23, 1956, 35 COMP. GEN. 468

B-126563: Feb 23, 1956

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BIDS - ACCEPTANCE OR REJECTION - LATE BIDS - TELEGRAPHIC MODIFICATION A BID MODIFICATION DEPOSITED WITH A TELEGRAPH OFFICE FOR RUSH SERVICE THIRTY-NINE MINUTES PRIOR TO SCHEDULED OPENING OF BIDS MAY BE CONSIDERED WHEN EVIDENCE SHOWS THE MODIFICATION WOULD HAVE BEEN RECEIVED ON TIME EXCEPT FOR A DELAY BEYOND THE NORMAL TRANSMISSION TIME. 1956: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. BIDDERS WERE REQUESTED TO QUOTE A PRICE FOR EACH OF THE TWO ITEMS IN THE SCHEDULE AND WERE ADVISED THAT AWARD OF ALL WOULD BE MADE AS A WHOLE TO ONE BIDDER. TELEGRAPHIC BIDS WILL NOT BE CONSIDERED. MODIFICATION BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS.

B-126563, FEBRUARY 23, 1956, 35 COMP. GEN. 468

BIDS - ACCEPTANCE OR REJECTION - LATE BIDS - TELEGRAPHIC MODIFICATION A BID MODIFICATION DEPOSITED WITH A TELEGRAPH OFFICE FOR RUSH SERVICE THIRTY-NINE MINUTES PRIOR TO SCHEDULED OPENING OF BIDS MAY BE CONSIDERED WHEN EVIDENCE SHOWS THE MODIFICATION WOULD HAVE BEEN RECEIVED ON TIME EXCEPT FOR A DELAY BEYOND THE NORMAL TRANSMISSION TIME.

TO THE SECRETARY OF THE ARMY, FEBRUARY 23, 1956:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1956, FORWARDING THE REPORT REQUESTED BY OUR OFFICE CONCERNING THE PROTEST OF THE PATHMAN CONSTRUCTION COMPANY AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER FOR THE CONSTRUCTION OF AN ARMY RESERVE TRAINING CENTER AT TERRE HAUTE, INDIANA.

INVITATION FOR BIDS NO. ENG-11-032-56-34 REQUESTED BIDS TO BE OPENED ON DECEMBER 15, 1955, AT :00 P.M., CST, IN THE CHICAGO DISTRICT OFFICE, 475 MERCHANDISE MART, CHICAGO 54, ILLINOIS. BIDDERS WERE REQUESTED TO QUOTE A PRICE FOR EACH OF THE TWO ITEMS IN THE SCHEDULE AND WERE ADVISED THAT AWARD OF ALL WOULD BE MADE AS A WHOLE TO ONE BIDDER. SUBPARAGRAPHS 5 (D) AND 7 (B) OF THE INSTRUCTIONS TO BIDDERS ON STANDARD FORM 22, REVISED, MARCH 1953 ADVISED ALL BIDDERS AS FOLLOWS:

(D) UNLESS SPECIFICALLY CALLED FOR, TELEGRAPHIC BIDS WILL NOT BE CONSIDERED. MODIFICATION BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS. TELEGRAPHIC MODIFICATIONS SHALL NOT REVEAL THE AMOUNT OF THE ORIGINAL OR REVISED BID.

(B) SUBJECT TO THE PROVISIONS OF PARAGRAPH 5 (D) OF THESE INSTRUCTIONS, BIDS OR BID MODIFICATIONS WHICH WERE DEPOSITED FOR TRANSMISSION BY TELEGRAPH IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS AND SUBSEQUENTLY DELAYED BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, WILL BE CONSIDERED IF RECEIVED PRIOR TO THE AWARD OF THE CONTRACT. THE BURDEN OF PROOF OF SUCH ABNORMAL DELAY WILL BE UPON THE BIDDER AND THE DECISION AS TO WHETHER OR NOT THE DELAY WAS SO CAUSED WILL REST WITH THE OFFICER AWARDING THE CONTRACT.

THE ABSTRACT OF BIDS SHOWS THAT FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND THAT THE PATHMAN CONSTRUCTION COMPANY SUBMITTED THE LOWEST BID ON THE TWO ITEMS AS A WHOLE. IT IS REPORTED BY THE CHIEF OF ENGINEERS THAT THE BIDS RECEIVED WERE OPENED ON DECEMBER 15, 1955, APPARENTLY AS SCHEDULED AND THAT NO AWARD HAS AS YET BEEN MADE. IT IS REPORTED FURTHER THAT THE BID OF JOHNSON, DRAKE AND PIPER, INC., WAS IN THE AMOUNT OF $215,000 ON ITEM NO. 1 AND IN THE AMOUNT OF $70,000 ON ITEM NO. 2, MAKING A TOTAL COMBINED BID OF $285,000; THAT BY TELEGRAM DISPATCHED FROM TERRE HAUTE AT 1:21, ON THE DAY OF OPENING THIS BIDDER REDUCED ITS BID ON ITEM NO. 1 BY $4,000 AND ITS BID ON ITEM NO. 2 BY $15,000, THEREBY REDUCING ITS COMBINED BID TO $266,000; AND THAT " THIS TELEGRAM WAS NOT RECEIVED IN THE CHICAGO DISTRICT OFFICE UNTIL 2:53 P.M., AFTER ALL BIDS RECEIVED UNDER THE INVITATION HAD BEEN OPENED AND PUBLICLY READ.'

THE PATHMAN CONSTRUCTION COMPANY HAS PROTESTED CONSIDERATION OF THE TELEGRAPHIC MODIFICATION OF THE BID OF JOHNSON, DRAKE AND PIPER, INC., ON THE GROUND THAT THE TELEGRAM WAS FILED TOO LATE TO BE RECEIVED BY THE CONTRACTING OFFICER PRIOR TO THE TIME SET FOR THE OPENING OF BIDS. THIS BIDDER SENT A REPRESENTATIVE TO TERRE HAUTE, INDIANA, WITH INSTRUCTIONS TO SEND TELEGRAMS AT VARIOUS INTERVALS DURING THE DAY IN ORDER TO OBTAIN A REPRESENTATIVE TABULATION OF THE TIME REQUIRED FOR THE TRANSMISSION AND DELIVERY OF TELEGRAMS BETWEEN THE TWO POINTS. NINE MESSAGES WERE SENT AS TESTS AND IT WAS FOUND WITH RESPECT TO EIGHT OF THEM THAT THE MINIMUM TIME REQUIRED FROM THE TIME OF FILING TO THE TIME OF DELIVERY WAS 52 MINUTES AND THAT THE MAXIMUM TIME WAS 96 MINUTES. TWO OF THE MESSAGES SENT "RUSH" REQUIRED 58 AND 68 MINUTES.

ON THE OTHER HAND JOHNSON, DRAKE AND PIPER, INC., HAS SUBMITTED A COPY OF A LETTER DATED DECEMBER 19, 1955, FROM THE MANAGER, WESTERN UNION OFFICE, TERRE HAUTE, INDIANA, STATING THAT THE LATE TELEGRAM WAS FILED AT THAT OFFICE AT 1:21 P.M., ON DECEMBER 15, 1955, AND THAT IT WAS TRANSMITTED AT 1:23 P.M. THIS IS CONFIRMED BY AN INSPECTION OF A PHOTOSTATIC COPY OF TELEGRAM WHICH SHOWS THAT IT WAS GUMMED DOWN AT CHICAGO AT 1:40 P.M.THIS BIDDER ALSO FURNISHED AN AFFIDAVIT BY ITS VICE PRESIDENT WHO STATED UNDER OATH THAT DEFINITE ASSURANCES WERE GIVEN BY THE WESTERN UNION THAT THE LATE TELEGRAM WOULD REACH DESTINATION BY THE BID OPENING TIME; THAT MR. HASSINGER, MANAGER, TERRE HAUTE OFFICE OF THE WESTERN UNION COMPANY, DISPLAYED A CHART RECORD OF WIRES TO CHICAGO AND OUTLYING LOCATIONS WHICH SHOWED THAT A MAJORITY OF THE MESSAGES WERE DELIVERED WITHIN 20 TO 30 MINUTES AND THAT NONE EXCEEDED 36 MINUTES. IT WAS STATED FURTHER THAT MR. HASSINGER STATED THAT THE DELAY OF THE LATE MESSAGE WAS DUE TO THE BUSINESS OVERLOAD RUSH OF WIRES. THIS STATEMENT IS SUPPORTED BY A LETTER DATED DECEMBER 22, 1955, FROM THE MANAGER, CUSTOMER SERVICE, WESTERN UNION CHICAGO OFFICE, WHICH CONTAINS A STATEMENT THAT IT WAS NECESSARY TO DIVERT SOME OF THE WESTERN UNION'S TRAFFIC THROUGH ITS TUBE OFFICE IN THE VICINITY AS A RESULT OF THE HEAVY TELEGRAPH FILE FOR FIRMS IN THE MERCHANDISE MART AND VICINITY AND THAT " IF THIS EMERGENCY HAD NOT EXISTED, IT WOULD HAVE BEEN REASONABLE TO SUPPOSE THAT THIS PARTICULAR " RX" TELEGRAM WOULD HAVE REACHED YOUR OFFICE SOONER.' ALSO THE MANAGER, CUSTOMER SERVICE, CHICAGO OFFICE, ADVISED MR. C. W. VICTORSON OF JOHNSON, DRAKE AND PIPER, INC., BY LETTER DATED JANUARY 16, 1956, AS FOLLOWS:

WE REGRET THE DELAY IN GETTING THIS MESSAGE TO THE OFFICE OF THE CORPS OF ENGINEERS. DUE TO HEAVY FILE OF SEASONAL TRAFFIC FOR FIRMS IN THE MERCHANDISE, IT WAS NECESSARY FOR US TO DIVERT SOME OF THE TRAFFIC THROUGH A PNEUMATIC TUBE OFFICE IN THE VICINITY OF THE MART.

IF THIS EMERGENCY HAD NOT EXISTED, IT WOULD HAVE BEEN REASONABLE TO SUPPOSE THAT THIS PARTICULAR " RX" TELEGRAM WOULD HAVE REACHED THE OFFICE OF THE CORPS OF ENGINEERS SHORTLY BEFORE OR ABOUT THE DEADLINE OF 2PM CST.

WE HAVE DISCUSSED WITH A REPRESENTATIVE OF THE FEDERAL COMMUNICATIONS COMMISSION THE QUESTION AS TO WHETHER 39 MINUTES WOULD BE A NORMAL TRANSMISSION TIME FOR THE LATE MESSAGE AND WE WERE ADVISED THAT DURING DECEMBER 1955 MESSAGES RECEIVED AT CHICAGO AND DELIVERED BY MESSENGER REQUIRED AN AVERAGE OF 57 MINUTES FOR ALL FULL RATE MESSAGES. FOR THE NATION AS WHOLE THE AVERAGE WAS 44 MINUTES. WE WERE ADVISED THAT IT CAN BE ASSUMED THAT RX MESSAGES WOULD BE GIVEN EXPEDITIOUS HANDLING AND THAT HAD THE MESSAGE RECEIVED NORMAL HANDLING AT CHICAGO INSTEAD OF BEING REROUTED THROUGH A NEARBY TUBE OFFICE, IT SHOULD HAVE BEEN DELIVERED WITHIN 39 MINUTES.

IT IS APPARENT AS POINTED OUT BY THE CHIEF OF ENGINEERS THAT JOHNSON, DRAKE AND PIPER, INC., COULD HAVE HAD NO KNOWLEDGE OF THE AMOUNT OF THE OTHER BIDS AT THE TIME THE TELEGRAM WAS SENT. WHILE THERE IS NOTHING OF RECORD TO SHOW THAT THE CONTRACTING OFFICER HAS MADE A DETERMINATION AS TO WHETHER THE TELEGRAM WAS DELAYED BEYOND THE NORMAL TRANSMISSION TIME WITHIN THE CONTEMPLATION OF SUBPARAGRAPH 7 (B) OF THE INSTRUCTIONS TO BIDDERS, IT MAY REASONABLY BE CONCLUDED ON THE PRESENT INFORMATION THAT THE LATE TELEGRAM WAS DEPOSITED FOR TRANSMISSION IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED FOR OPENING OF BIDS AND THAT THE BID OF JOHNSON, DRAKE AND PIPER, INC., AS MODIFIED BY THE TELEGRAM, BEING THE LOWEST RECEIVED, MAY BE CONSIDERED ALONG WITH THE OTHER BIDS IN MAKING AWARD.

IN THE EVENT OF AWARD TO JOHNSON, DRAKE AND PIPER, INC., A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.