B-139332, SEP. 28, 1960

B-139332, SEP. 28, 1960

TO GENERAL METALS CORPORATION, ENTERPRISE DIVISION:

WE REFER TO YOUR LETTER OF AUGUST 25, 1960, REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 30, 1959, HOLDING THAT WE WOULD NOT BE WARRANTED IN RECOMMENDING OR APPROVING A CONTRACT MODIFICATION WHICH WOULD INCREASE THE PRICE OF CONTRACT NO. GS-00S 21984, DATED APRIL 8, 1959, BY $20,000.

INVITATION NO. FN-3H-18051-A-12-29-58 WAS ISSUED BY THE GENERAL SERVICES ADMINISTRATION ON NOVEMBER 28, 1958. BIDS WERE TO BE OPENED ON DECEMBER 29, 1958. ON DECEMBER 19, 1958, THE INVITATION WAS AMENDED BY THE ISSUANCE OF AN ADDENDUM. FOR SOME REASON THE COPY OF THE ADDENDUM AIR MAILED TO YOU BY THE GENERAL SERVICES ADMINISTRATION WAS NEVER RECEIVED. ON DECEMBER 24, YOUR BID WITHOUT CONSIDERATION OF THE ADDENDUM WAS MAILED FROM SAN FRANCISCO. TWO DAYS LATER, ON DECEMBER 26, YOU LEARNED OF THE EXISTENCE OF THE ADDENDUM THROUGH ONE OF YOUR SUPPLIERS. ON THE DAY OF THE BID OPENING THE ADDENDUM WAS EXECUTED AND SUBMITTED TO THE CONTRACTING OFFICE BY YOUR WASHINGTON REPRESENTATIVE. AT 1:30 P.M., E.S.T., A REPRESENTATIVE OF YOUR FIRM CALLED THE CONTRACTING OFFICER FROM SAN FRANCISCO AND WAS ADVISED THAT THE BID PRICE COULD BE CHANGED BY A TELEGRAM RECEIVED PRIOR TO 3:00 P.M., E.S.T., THE TIME SCHEDULED FOR BID OPENING. AT 2:28 E.S.T., A TELEGRAM WAS SENT FROM SAN FRANCISCO RAISING YOUR BID PRICE BY $20,000. BIDS WERE OPENED AS SCHEDULED AT 3:00 P.M., E.S.T. AT 3:10 P.M., E.S.T., THE WASHINGTON WESTERN UNION OFFICE CALLED THE BID OPENING ROOM TO ADVISE THAT YOUR TELEGRAM HAD BEEN RECEIVED AT THE TELEGRAPH OFFICE AT :01 P.M., E.S.T. THE TELEGRAM WAS DELIVERED PURSUANT TO INSTRUCTIONS AT EITHER 3:49 OR 4:06 .M., E.S.T.

AFTER CONSIDERATION OF THE MATTER THE CONTRACTING OFFICER DETERMINED THAT THE TELEGRAM, NOT HAVING BEEN RECEIVED BY BID OPENING TIME AND NO DELAY HAVING BEEN SUFFERED IN THE TRANSMISSION, COULD NOT BE REGARDED AS A PART OF THE BID. THE AWARD THEREFORE WAS MADE TO YOUR FIRM ON THE BASIS OF THE BID AS ORIGINALLY SUBMITTED.

IT IS YOUR POSITION THAT YOU ARE ENTITLED TO BE PAID ON THE BASIS OF YOUR BID AS AMENDED BY THE TELEGRAM. THE MATTER WAS PRESENTED FOR OUR CONSIDERATION AND IN OUR DECISION OF SEPTEMBER 30, 1959, WE HELD THAT THERE WAS NO JUSTIFICATION UNDER THE FACTS FOR INCREASING THE PRICE.

YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION IS BASED ON A STATEMENT ALLEGED TO HAVE BEEN MADE BY A REPRESENTATIVE OF THE CONTRACTING OFFICE PRIOR TO BID OPENING THAT A TELEGRAPHIC MODIFICATION OF THE BID PRICE WOULD BE ACCEPTABLE AND FURTHER ASSURANCE AFTER BID OPENING BY THAT SAME INDIVIDUAL THAT THE TELEGRAPHIC MODIFICATION OF THE BID PRICE HAD BEEN RECEIVED AND WAS ACCEPTABLE.

PARAGRAPH 2 (A) OF THE TERMS AND CONDITIONS TO THE INVITATION PROVIDES IN PART THAT BIDS MAY BE MODIFIED BY TELEGRAM IF RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF BIDS. THE INFORMATION FROM THE GENERAL SERVICES ADMINISTRATION IS TO THE EFFECT THAT THE GSA REPRESENTATIVE ADVISED YOU THAT THE BID COULD BE MODIFIED BY TELEGRAM IF RECEIVED PRIOR TO THE TIME FOR BID OPENING. IN ANY CASE, EVEN ASSUMING, WITHOUT CONCEDING, THAT THE REPRESENTATIONS WERE MADE AS YOU ALLEGE, THE INDIVIDUAL HAD NO AUTHORITY TO VARY THE WRITTEN PROVISIONS OF THE INVITATION.

UPON BID OPENING YOUR BID COULD BE ACCEPTED BY THE GOVERNMENT IN THE FORM IN WHICH IT STOOD WITHIN THE TIME LIMIT ESTABLISHED ON THE FIRST PAGE OF THE BID FORM. THUS, NOTWITHSTANDING ANY REPRESENTATIONS WHICH MAY OR MAY NOT HAVE BEEN MADE BY OFFICERS OR EMPLOYEES OF THE CONTRACTING AGENCY, THE RIGHTS AND OBLIGATIONS OF THE PARTIES WERE FIXED SUBJECT TO THE ACCEPTANCE OR REJECTION OF YOUR BID BY THE GOVERNMENT. THERE IS NO BASIS UPON WHICH YOUR BID MAY BE MODIFIED AFTER OPENING. 17 COMP. GEN. 554. IN OTHER WORDS, UPON AWARD, YOUR BID IN THE FORM IN WHICH IT STOOD AT THE TIME OF BID OPENING RIPENED INTO A BINDING CONTRACT. AT THAT TIME THE RIGHT TO PERFORMANCE IN ACCORDANCE WITH THE TERMS OF THE BID VESTED IN THE UNITED STATES AND NO OFFICER OR EMPLOYEE OF THE GOVERNMENT HAS A RIGHT TO WAIVE SUCH VESTED RIGHT WITHOUT SOME ADEQUATE CONSIDERATION MOVING TO THE GOVERNMENT.