B-135211, MARCH 18, 1958, 37 COMP. GEN. 604

B-135211: Mar 18, 1958

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BIDS - LATE - TELEGRAPHIC MODIFICATIONS - RECEIPT IN AGENCY COMMUNICATIONS CENTER A TELEGRAPHIC BID MODIFICATION WHICH WAS RECEIVED AT THE COMMUNICATIONS CENTER OF THE CONTRACTING AGENCY TWENTY MINUTES PRIOR TO BID OPENING BUT WAS NOT RECEIVED IN THE BID OPENING ROOM UNTIL AFTER ALL BIDS HAD BEEN OPENED MAY BE REGARDED AS HAVING BEEN RECEIVED ON TIME UNDER THE SPECIFIC TERMS OF THE INVITATION WHICH PERMITTED BIDS TO BE MODIFIED BY TELEGRAPHIC NOTICE IF RECEIVED PRIOR TO THE OPENING AND UNDER ADMINISTRATIVE REGULATIONS WHICH PROVIDE THAT THE POINT OF RECEIPT OF TELEGRAPHIC BID MODIFICATIONS IS EITHER THE RECEIVING POINT FOR OFFICIAL COMMUNICATIONS OR THE BID OPENING ROOM. 1958: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 11.

B-135211, MARCH 18, 1958, 37 COMP. GEN. 604

BIDS - LATE - TELEGRAPHIC MODIFICATIONS - RECEIPT IN AGENCY COMMUNICATIONS CENTER A TELEGRAPHIC BID MODIFICATION WHICH WAS RECEIVED AT THE COMMUNICATIONS CENTER OF THE CONTRACTING AGENCY TWENTY MINUTES PRIOR TO BID OPENING BUT WAS NOT RECEIVED IN THE BID OPENING ROOM UNTIL AFTER ALL BIDS HAD BEEN OPENED MAY BE REGARDED AS HAVING BEEN RECEIVED ON TIME UNDER THE SPECIFIC TERMS OF THE INVITATION WHICH PERMITTED BIDS TO BE MODIFIED BY TELEGRAPHIC NOTICE IF RECEIVED PRIOR TO THE OPENING AND UNDER ADMINISTRATIVE REGULATIONS WHICH PROVIDE THAT THE POINT OF RECEIPT OF TELEGRAPHIC BID MODIFICATIONS IS EITHER THE RECEIVING POINT FOR OFFICIAL COMMUNICATIONS OR THE BID OPENING ROOM.

TO CLIFTON E. MACK, GENERAL SERVICES ADMINISTRATION, MARCH 18, 1958:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 11, 1958, REQUESTING A DECISION AS TO WHETHER A BID AS MODIFIED BY A TELEGRAM OF THE KELLOGG SALES COMPANY MAY BE CONSIDERED FOR AWARD.

ON JANUARY 14, 1958, BIDS COVERING CEREAL PRODUCTS AND DEHYDRATED ONIONS UNDER FSC GROUP 89, SUBSISTENCE PART I FOR THE PERIOD APRIL 1 THROUGH JUNE 30, 1958, WERE OPENED AT 10:30 A.M. EST. AMONG THESE WAS A LETTER BID OF THE KELLOGG SALES COMPANY DATED JANUARY 7, 1958, OFFERING TO FURNISH AN ASSORTMENT OF PRODUCTS UNDER THE PROPOSED SCHEDULE CONTRACT.

AFTER THE OPENING OF THE BIDS AT THE APPOINTED TIME ON JANUARY 14, 1958, THE CONTRACTING OFFICER RECEIVED A TELEGRAPHIC MODIFICATION COVERING CHANGES IN THE PRICES OF THE BID OF KELLOGG SALES COMPANY.

THE RECORD DISCLOSES THAT THE TELEGRAPHIC MODIFICATION WAS SENT BY THE KELLOGG SALES COMPANY FROM BATTLE CREEK, MICHIGAN, AT 8:44 A.M. EST ON JANUARY 14, 1958; THAT IT WAS RECEIVED IN THE WESTERN UNION TELEGRAPHIC OFFICE AT WASHINGTON, D.C., AT 9:48 A.M. EST ON THE SAME DATE, AND THAT IT WAS RECEIVED IN THE GSA COMMUNICATIONS CENTER AT 10:10 A.M. EST OF THE SAME DATE, AS EVIDENCE BY THE TIME STATEMENT APPEARING AT THE END OF THE MESSAGE FOLLOWING THE SIGNATURE.

IT APPEARS THAT IN ADDITION TO THE DELAY IN THE GSA COMMUNICATIONS CENTER THERE WAS A FURTHER DELAY IN THE ORIGINAL TRANSMISSION BY WESTERN UNION. SUCH DELAY WAS CAUSED BY AN ERROR APPEARING IN THE CONFIRMING FIGURES WHICH FOLLOWED THE TRANSMISSION OF THE TELEGRAM PROPER.

PARAGRAPH 10 ENTITLED BIDS, OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, PROVIDES IN PART AS FOLLOWS:

(C) LATE. NO BID OR MODIFICATION THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL BE CONSIDERED EXCEPT THAT WHEN A BID OR MODIFICATION ARRIVES BY MAIL AFTER THE TIME SET FOR OPENING, BUT BEFORE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT NONARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH BIDDER WAS NOT RESPONSIBLE, SUCH BID OR MODIFICATION THEREOF WILL BE CONSIDERED.

(G) TELEGRAPHIC. TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED IN THE SCHEDULE, ALTHOUGH BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.

CURRENT GSA REGULATIONS ( GS MANUAL 5-1,207.04A) PROVIDE THAT THE POINT FOR RECEIPT OF A TELEGRAPHIC BID OR MODIFICATION IS THE RECEIVING POINT FOR OFFICIAL COMMUNICATIONS OR THE BID OPENING ROOM AT THE ADDRESS SPECIFIED IN THE INVITATION FOR BIDS. ALTHOUGH THE TELEGRAM BEARS A GSA TIME STAMP SHOWING RECEIPT AT 10:46 A.M., YOU STATE IN YOUR REPORT THAT IT HAS BEEN ESTABLISHED THAT IT WAS DELIVERED TO A GSA RECEIVING POINT FOR OFFICIAL COMMUNICATIONS (THE COMMUNICATIONS CENTER) AT 10:10 A.M., OR TWENTY MINUTES PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS. UNDER THE SPECIFIC TERMS OF THE INVITATION, THEREFORE, THERE IS NO DOUBT THAT THE TELEGRAM SHOULD BE REGARDED AS HAVING BEEN RECEIVED ON TIME AND SO ENTITLED TO CONSIDERATION AS A PART OF THE BID OF THE KELLOGG SALES COMPANY.