B-128927, AUGUST 16, 1956, 36 COMP. GEN. 124

B-128927: Aug 16, 1956

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WHICH WAS SENT TOO LATE FOR RECEIPT PRIOR TO OPENING. IS A QUALIFIED BID AND NEITHER THE TELEGRAPHIC MODIFICATION NOR A MODIFICATION WHICH WAS TELEPHONED PRIOR TO OPENING MAY MAKE THE BID EFFECTIVE. 1956: REFERENCE IS MADE TO A LETTER DATED AUGUST 13. ON THE OUTSIDE OF THE ENVELOPE IN WHICH THE BID WAS SUBMITTED THERE WAS PLAINLY TYPED THE FOLLOWING: " NOTE: SEE TELEGRAPHIC MODIFICATION OF BID.'. TWO OTHER SIMILAR NOTATIONS WERE PLACED CONSPICUOUSLY ON THE BID FORM AND ON THE SCHEDULE OF PROPOSALS AND ALTERNATES SUBMITTED BY THE BIDDER. BIDS WERE TO BE OPENED ON JULY 19. KNOST'S BID WAS RECEIVED THERE AT 1:50 P.M. THE TELEGRAM WAS RECEIVED AT THE BRANCH OF BUILDINGS AND UTILITIES OFFICE AT 2:30 P.M.

B-128927, AUGUST 16, 1956, 36 COMP. GEN. 124

BIDS - QUALIFIED - MODIFICATION DELAY A BID WHICH SPECIFIED A TENTATIVE PRICE SUBJECT TO A SUBSEQUENT SUBMISSION OF A TELEGRAPHIC MODIFICATION, WHICH WAS SENT TOO LATE FOR RECEIPT PRIOR TO OPENING, IS A QUALIFIED BID AND NEITHER THE TELEGRAPHIC MODIFICATION NOR A MODIFICATION WHICH WAS TELEPHONED PRIOR TO OPENING MAY MAKE THE BID EFFECTIVE.

TO THE SECRETARY OF INTERIOR, AUGUST 16, 1956:

REFERENCE IS MADE TO A LETTER DATED AUGUST 13, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THERE MAY BE CONSIDERED FOR AWARD A BID OF B. L. KNOST, MERIDIAN, MISSISSIPPI, SUBMITTED IN RESPONSE TO AN INVITATION FOR BIDS ON PROJECT NO. BU 401-363, ISSUED ON JUNE 13, 1956, BY THE BRANCH OF BUILDINGS AND UTILITIES, BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, NEW MEXICO, FOR THE CONSTRUCTION OF A JUNIOR HIGH SCHOOL AT PEARL RIVER, MISSISSIPPI.

THE INVITATION REQUESTED BIDS ON THE BASE PROPOSAL (JUNIOR HIGH CLASSROOM AREA) AND THREE ALTERNATE PROPOSALS, IT BEING STATED THAT NO ALTERNATE BID WOULD BE ACCEPTED EXCEPT IN COMBINATION WITH THE BASE PROPOSAL. RESPONSE TO THE INVITATION, B. L. KNOST SUBMITTED A BID IN THE AMOUNT OF $100,000 ON THE BASE PROPOSAL AND IN THE AMOUNTS OF $7,000, $15,000 AND $35,000 ON THE ALTERNATE PROPOSALS. HOWEVER, ON THE OUTSIDE OF THE ENVELOPE IN WHICH THE BID WAS SUBMITTED THERE WAS PLAINLY TYPED THE FOLLOWING: " NOTE: SEE TELEGRAPHIC MODIFICATION OF BID.' TWO OTHER SIMILAR NOTATIONS WERE PLACED CONSPICUOUSLY ON THE BID FORM AND ON THE SCHEDULE OF PROPOSALS AND ALTERNATES SUBMITTED BY THE BIDDER.

BIDS WERE TO BE OPENED ON JULY 19, 1956, AT 2: P.M., MOUNTAIN STANDARD TIME, AT THE ALBUQUERQUE OFFICE. MR. KNOST'S BID WAS RECEIVED THERE AT 1:50 P.M., 10 MINUTES BEFORE THE TIME SET FOR OPENING. AT 1:57 P.M. ON JULY 19, THE OFFICE RECEIVED A TELEPHONE CALL FROM ONE PURPORTEDLY ACTING UPON THE REQUEST OF THE BIDDER, STATING THAT THE BIDDER HAD FILED AT MERIDIAN, MISSISSIPPI, A TELEGRAM AS FOLLOWS:

"REFERENCE PROJECT BU 401-363 FOR BID OPENING AT 2: P.M. JULY 19. GENERAL MODIFICATIONS TO THE BID OF B. L. KNOST, CONTRACTOR, MERIDIAN, MISSISSIPPI BASE BID REDUCE MY BID $5,100; ALTERNATE BID NO. 1 DEDUCT $800, ALTERNATE BID NO. 2 ADD $3,800; ALTERNATE BID NO. 3 ADD $33,500. VIEW OF STEEL STRIKE I RESPECTFULLY REDUCE ACCEPTANCE TIME OF THIS BID TO 15 DAYS.

"CONFIRMATION IN MAIL AND BY TELEGRAM.'

THE TELEGRAM WAS RECEIVED AT THE BRANCH OF BUILDINGS AND UTILITIES OFFICE AT 2:30 P.M., HAVING BEEN TELEPHONED TO THE OFFICE BY THE WESTERN UNION TELEGRAPH COMPANY AT 2:20 P.M.

SUBPARAGRAPHS 5 (D) AND 7 (B) OF INSTRUCTIONS TO BIDDERS ( STANDARD FORM 22, MADE A PART OF THE INVITATION) PROVIDE:

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.

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.

IN A LETTER DATED JULY 24, 1956, TO THE OFFICE OF THE BRANCH OF BUILDINGS AND UTILITIES, THE WESTERN UNION TELEGRAPH COMPANY OFFICE AT ALBUQUERQUE STATES:

WITH REFERENCE TO OUR CONVERSATION TODAY, CONCERNING THE MESSAGE FILED AT MERIDIAN, MISS., DATED JULY 19, FILED AT 246PM, CENTRAL STANDARD TIME, WHICH WAS RECEIVED IN OUR OFFICE AT 208PM, AND YOU STATE YOUR COPY SHOWS MESSAGE WAS TELEPHONED TO YOU AT 220PM AND CONFIRMATION DELIVERED ABOUT 230PM.

THE SENDER GAVE US VERY LIMITED TIME TO GET THIS MESSAGE TO YOU BY TWO XPM, MOUNTAIN TIME. OUR ORIGIN TO DESTINATION TIME AVERAGES OUT APPROXIMATELY 30 MINUTES PLUS DELIVERY TIME. IN THIS CASE, THIS PARTICULAR MESSAGE WAS HANDLED FROM ORIGIN TO DESTINATION IN 22 MINUTES PLUS 12 MINUTES TELEPHONE DELIVERY TIME.

IT THUS APPEARS THAT THE TELEGRAM WAS FILED AT MERIDIAN, MISSISSIPPI, FOR TRANSMISSION TO ALBUQUERQUE, NEW MEXICO, ONLY 14 MINUTES BEFORE THE TIME FIXED FOR OPENING BIDS.

IT IS STATED IN THE SUBMISSION OF AUGUST 13, 1956, THAT IT IS CONTEMPLATED THAT THE AWARD, WHEN MADE, WILL BE FOR THE BASE PROPOSAL PLUS ALL THREE ALTERNATES AND THERE IS FURNISHED A TABULATION SHOWING THAT THE AGGREGATE BID OF B. L. KNOST IS $157,000 AS ORIGINALLY SUBMITTED AND $188,400 AS MODIFIED BY THE TELEGRAM AND THAT THE NEXT LOW AGGREGATE BID IS $190,031.

AT THE TIME FIXED FOR OPENING BIDS, THERE HAD NOT BEEN RECEIVED FROM B. L. KNOST ANY FIRM AND UNQUALIFIED BID SUBMITTED IN A MANNER AUTHORIZED BY THE INVITATION. THE SEALED BID WHICH HAD BEEN RECEIVED FROM HIM WAS EXPRESSLY CONDITIONED ON THE SUBSEQUENT SUBMISSION OF A TELEGRAPHIC MODIFICATION OF THE BID. THIS OFFICE HAS HELD CONSISTENTLY THAT BIDS SO QUALIFIED AS TO RENDER INDEFINITE THE CONTRACT PRICE TO BE PAID ARE FOR REJECTION FOR UNCERTAINTY. THEREFORE, THE ORIGINAL BID IS NOT FOR CONSIDERATION IN MAKING AN AWARD. 19 COMP. GEN. 614; SEE, ALSO, 34 COMP. GEN./82.

THIS OFFICE HAS SANCTIONED THE CONSIDERATION OF BIDS WHICH WERE MODIFIED BY TELEGRAM RECEIVED AFTER THE HOUR SET FOR OPENING WHERE THE EVIDENCE OF RECORD CLEARLY ESTABLISHED THAT THE TELEGRAM WAS SENT IN SUFFICIENT TIME TO HAVE BEEN DELIVERED TO THE PLACE WHERE THE BIDS WERE TO BE OPENED. SEE 24 COMP. GEN. 350. HOWEVER, THE EVIDENCE HERE APPEARS TO CLEARLY ESTABLISH THE FACT THAT THE TELEGRAM WAS NOT FILED FOR TRANSMISSION IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED FOR OPENING BIDS. MOREOVER, THE BIDDER HAS NOT CONTENDED THAT HIS TELEGRAM WAS SO TIMELY DEPOSITED FOR TRANSMISSION. NEITHER HAS THE BIDDER ALLEGED ANY ERROR IN HIS BID BUT STATES THAT HE INTENTIONALLY SUBMITTED A BID "WITH A TENTATIVE FIGURE.' ACCORDINGLY, THE ATTEMPTED MODIFICATION OF THE BID BY TELEGRAM MUST BE HELD INEFFECTUAL. SEE 35 COMP. GEN. 426.

THE FACT THAT SOME PERSON, PRESUMABLY REPRESENTING THE BIDDER, TELEPHONED THE PROPOSED MODIFICATION OF THE BID TO THE OFFICE OF THE CONTRACTING OFFICER PRIOR TO THE TIME FIXED FOR OPENING BIDS CANNOT OPERATE TO MAKE THE ATTEMPTED MODIFICATION EFFECTIVE, SINCE MODIFICATION BY TELEPHONE WAS NOT AUTHORIZED. OBVIOUSLY COMPETITIVE BIDS REQUIRED TO BE SUBMITTED IN WRITING AND SEALED MAY NOT BE MODIFIED BY TELEPHONE. 17 COMP. GEN. 961.

IN VIEW OF THE FOREGOING, IT IS CONCLUDED THAT THE BID OF B. L. KNOST IS NOT FOR CONSIDERATION, EITHER AS ORIGINALLY SUBMITTED OR AS SOUGHT TO BE MODIFIED.