B-141603, FEBRUARY 12, 1960, 39 COMP. GEN. 586

B-141603: Feb 12, 1960

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WHICH DOES NOT PROVIDE THAT BIDS BY TELEPHONE ARE ACCEPTABLE. IS NOT A FACTOR TO BE CONSIDERED IN DETERMINING WHETHER A TELEGRAPHIC MODIFICATION WHICH IS NOT RECEIVED UNTIL AFTER THE TIME SET FOR OPENING IS EFFECTIVE. THE LATE BIDDER HAS THE BURDEN OF PROVING THAT THE MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL. OR FORESEEABLE DELAYS AND THAT THE FAILURE OF THE BID TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION. A MERE SHOWING THAT THE MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER NORMAL CONDITIONS IS NOT SUFFICIENT PROOF. A TELEGRAPHIC BID MODIFICATION WHICH WAS DEPOSITED WITH THE TELEGRAPH COMPANY 30 MINUTES PRIOR TO THE TIME SET FOR BID OPENING.

B-141603, FEBRUARY 12, 1960, 39 COMP. GEN. 586

BIDS - LATE - TELEGRAPHIC MODIFICATIONS - EVIDENCE OF DELAY NOTIFICATION BY TELEPHONE TO A PROPERTY DISPOSAL OFFICER THAT A BID MODIFICATION HAS BEEN TELEGRAPHED IN RESPONSE TO A SURPLUS PROPERTY INVITATION, WHICH DOES NOT PROVIDE THAT BIDS BY TELEPHONE ARE ACCEPTABLE, IS NOT A FACTOR TO BE CONSIDERED IN DETERMINING WHETHER A TELEGRAPHIC MODIFICATION WHICH IS NOT RECEIVED UNTIL AFTER THE TIME SET FOR OPENING IS EFFECTIVE. IN THE DETERMINATION OF WHETHER A LATE TELEGRAPHIC MODIFICATION TO A BID FOR THE PURCHASE OF SURPLUS GOVERNMENT PROPERTY MAY BE CONSIDERED FOR AWARD, THE LATE BIDDER HAS THE BURDEN OF PROVING THAT THE MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL, OR FORESEEABLE DELAYS AND THAT THE FAILURE OF THE BID TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION; A MERE SHOWING THAT THE MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER NORMAL CONDITIONS IS NOT SUFFICIENT PROOF. A TELEGRAPHIC BID MODIFICATION WHICH WAS DEPOSITED WITH THE TELEGRAPH COMPANY 30 MINUTES PRIOR TO THE TIME SET FOR BID OPENING, BUT WHICH WAS NOT RECEIVED AT THE ADMINISTRATIVE OFFICE UNTIL 35 MINUTES LATER, IS NOT CONSIDERED TO HAVE BEEN DELIVERED ON TIME IN VIEW OF THE EVIDENCE WHICH INDICATES THAT NORMAL TRANSMISSION TIME BETWEEN THE TRANSMITTING OFFICE AND RECEIVING TELEGRAPH OFFICE IS APPROXIMATELY 30 MINUTES AND THAT AN ADDITIONAL 5 MINUTES IS REQUIRED TO FORWARD THE MESSAGE FROM THERE TO THE GOVERNMENT INSTALLATION, AND THIS EVIDENCE IS NOT OVERCOME BY A SHOWING THAT IT WAS NORMAL PROCEDURE FOR THE TELEGRAPH OFFICE TO TRANSMIT MESSAGES IMMEDIATELY OR IN ANY PERIOD LESS THAN THE 15 MINUTES THE MESSAGE WAS DELAYED.

TO THE CHEMICAL SERVICE CORPORATION, FEBRUARY 12, 1960:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 30, 1959, PROTESTING AGAINST THE REFUSAL OF THE DEPARTMENT OF THE ARMY TO CONSIDER A TELEGRAPHIC MODIFICATION TO YOUR BID UNDER IFB NO. 103-029-5-60-8.

THE INVITATION IN QUESTION REQUESTED BIDS ON VARIOUS ITEMS OF SURPLUS PROPERTY TO BE SOLD BY THE PROPERTY DISPOSAL OFFICE, PINE BLUFF ARSENAL, ARKANSAS. BIDS WERE TO BE OPENED AT 10:00 A.M., CENTRAL STANDARD TIME, ON NOVEMBER 12, 1959, AND PARAGRAPH 3 (D) OF THE ADDITIONAL SALE TERMS AND CONDITIONS PROVIDED AS FOLLOWS:

D. MODIFICATIONS TO BIDS: IF RECEIVED BY THE CONTRACTING OFFICER PRIOR TO TIME AND DATE OF BID OPENING, MODIFICATIONS TO BIDS SHALL BE CONSIDERED. SUCH MODIFICATIONS SHALL BE MADE BY LETTER OR TELEGRAPHIC MESSAGE AND SHALL BE ADDRESSED AND IDENTIFIED BY IFB NO., SAME AS ORIGINAL BID. TELEGRAPHIC MODIFICATIONS SHALL NOT DIVULGE THE AMOUNT OF THE ORIGINAL BID, NOR THE AMOUNT OF THE REVISED BID AFTER MODIFICATION. MODIFICATIONS MADE BY LETTER SHALL BE SEALED.

THE RECORD BEFORE US INDICATES THAT AT ABOUT 9:10 A.M., CENTRAL STANDARD TIME, YOUR MR. STEBEL CONTACTED THE PROPERTY DISPOSAL OFFICER BY TELEPHONE AND ASKED IF YOUR BID MIGHT BE MODIFIED BY TELEGRAPH. MR. STEBEL WAS ADVISED THAT TELEGRAPHIC BID MODIFICATIONS WERE PERMISSIBLE IF RECEIVED IN THE OFFICE OF THE PROPERTY DISPOSAL OFFICER NO LATER THAN 10:00 A.M., CENTRAL STANDARD TIME, AND POINTED OUT THAT IT WAS THEN ONLY ABOUT 40 MINUTES UNTIL THAT TIME. NO MODIFICATION TO YOUR BID WAS RECEIVED BY THE PROPERTY DISPOSAL OFFICER PRIOR TO 10:00 A.M., AND OPENING OF THE BIDS DISCLOSED THAT IRITOX CHEMICAL COMPANY WAS HIGH BIDDER ON ITEM 3 (58,220 POUNDS OF POWDERED TITANIUM) WITH A BID OF $0.16 PER POUND, WHILE YOUR BID, AT $0.1226 PER POUND, WAS SECOND HIGH ON THIS ITEM.

AT 11:37 A.M., CENTRAL STANDARD TIME, ON THE DATE OF BID OPENING, THE PROPERTY DISPOSAL OFFICER RECEIVED A TELEPHONE CALL FROM THE MAIL AND RECORDS SECTION OF THE ARMED ADVISING THAT A TELEGRAM HAD BEEN RECEIVED FROM YOUR COMPANY WHICH ASKED MODIFICATION OF YOUR BID ON ITEM 3 BY INCREASING THE UNIT BID PRICE 9 CENTS PER POUND. IT DOES NOT APPEAR TO BE DISPUTED THAT THIS MESSAGE WAS GIVEN TO THE TELEGRAPH COMPANY IN NEW YORK CITY BY YOUR COMPANY AT 10:30 A.M., EASTERN STANDARD TIME, ON NOVEMBER 12 AND ARRIVED AT THE MESSAGE CENTER AT PINE BLUFF ARSENAL AT 10:05 A.M., CENTRAL STANDARD TIME. ACTUAL TRANSMISSION BETWEEN THESE POINTS WAS THEREFORE 35 MINUTES.

ON NOVEMBER 13 THE PROPERTY DISPOSAL OFFICER ADVISED YOU THAT YOUR MODIFICATION WAS RECEIVED AT THE ARSENAL AFTER THE TIME SPECIFIED FOR BID OPENING AND, THEREFORE, WOULD NOT BE CONSIDERED FOR AWARD UNLESS CLEAR AND CONVINCING EVIDENCE WAS SUBMITTED, INCLUDING SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY, SHOWING THAT THE MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED AT THE ARSENAL ON TIME BY NORMAL TRANSMISSION PROCEDURE, AND THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN TRANSMISSION FOR WHICH YOU WERE NOT RESPONSIBLE. IN RESPONSE TO THIS REQUEST, YOU ADVISED THE PROPERTY DISPOSAL OFFICER ON NOVEMBER 19 THAT THE TELEGRAPH COMPANY HAD RECEIVED YOUR BID MODIFICATION AT 10:30 A.M. ON NOVEMBER 12 BUT DID NOT TRANSMIT IT UNTIL 10:45, AND THAT THE MODIFICATION WOULD HAVE ARRIVED BEFORE BID OPENING IF IT HAD NOT BEEN SO DELAYED BY THE TELEGRAPH COMPANY.

BY LETTER DATED NOVEMBER 18 (APPARENTLY RECEIVED NOVEMBER 19), THE IRITOX COMPANY FORWARDED A COPY OF A TELEGRAM FROM THE MANAGER OF THE NEW YORK CITY CUSTOMER SERVICE DIVISION OF THE TELEGRAPH COMPANY WHICH STATED THAT NORMAL TRANSMISSION TIME FROM NEW YORK CITY TO PINE BLUFF WAS ABOUT ONE- HALF HOUR, AND THAT TIME REQUIRED FOR LOCAL DELIVERY MUST BE ADDED THERETO. ALSO ON NOVEMBER 19 THE PROPERTY DISPOSAL OFFICER NOTIFIED YOU THAT THE TRANSMISSION TIME ON FIVE TELEGRAMS RECEIVED BY THE ARSENAL BETWEEN NOVEMBER 12 AND 19 HAD BEEN 35, 40, 52, 25, AND 35 MINUTES, AND THAT THE PINE BLUFF OFFICE OF THE TELEGRAPH COMPANY HAD ADVISED THAT NORMAL TRANSMISSION TIME FROM NEW YORK CITY WAS APPROXIMATELY 30 MINUTES. THIS MESSAGE ALSO ADVISED YOU THAT UNLESS THE CUSTOMER SERVICE DIVISION OF THE TELEGRAPH COMPANY ESTABLISHED A NORMAL TRANSMISSION TIME AND ADVISED THAT TRANSMISSION OF YOUR BID MODIFICATION WAS DELAYED, THE MODIFICATION COULD NOT BE CONSIDERED. ON NOVEMBER 20, ONE O. W. BOEHME (WHOSE POSITION WITH THE TELEGRAPH COMPANY DOES NOT APPEAR TO HAVE BEEN ESTABLISHED) ADVISED THE PROPERTY DISPOSAL OFFICER BY TELEGRAM THAT YOUR BID MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY AT 10:30 A.M. AND TRANSMITTED BY THE NEW YORK OFFICE AT 10:45 A.M. ON THAT SAME DATE A TELEGRAM FROM JOHN H. WATERS, GENERAL ATTORNEY FOR THE TELEGRAPH COMPANY, CONFIRMED MR. BOEHME'S ADVICE AND STATED THAT THE DELAY IN TRANSMISSION OF YOUR BID MODIFICATION ,WAS APPROXIMATELY 15 MINUTES LONGER THAN NORMAL TIME FOR TRANSMISSION.' NO FURTHER EVIDENCE APPEARS TO HAVE BEEN SUBMITTED IN YOUR BEHALF.

ON NOVEMBER 20, IN AN EFFORT TO CLEAR UP THE APPARENT DISCREPANCY BETWEEN MR. WATERS' ADVICE AND THE INFORMATION FROM THE NEW YORK CITY CUSTOMER SERVICE DIVISION, THE PROPERTY DISPOSAL OFFICER CALLED MR. WATERS' OFFICE AND, IN MR. WATERS' ABSENCE, WAS REFERRED TO A MR. O CONNELL IN MR. WATERS' OFFICE AS THE SENDER OF THE TELEGRAM OVER MR. WATERS' SIGNATURE. UPON BEING ADVISED OF THE ADVICE FROM THE CUSTOMER SERVICE DIVISION, MR. O -CONNELL STATED THAT THE MANAGER OF THAT DIVISION WAS IN A POSITION TO KNOW ABOUT THE SUBJECT MATTER OF ITS TELEGRAM AND THAT HE (1MR. CONNELL) COULD ONLY CONFIRM THE FACT THAT THE DELAY BETWEEN TIME OF FILING AND TIME OF TRANSMISSION WAS 15 MINUTES. ON THE QUESTION OF NORMAL TRANSMISSION TIME, HE REFERRED THE PROPERTY DISPOSAL OFFICER TO MR. MALNATTI OF THE COMPANY'S OPERATIONS OFFICE, WHO ALSO ADVISED THAT THE NORMAL TRANSMISSION TIME REQUIRED FROM NEW YORK CITY TO PINE BLUFF WAS ABOUT 30 MINUTES.

THERE WOULD APPEAR TO BE NO DISPUTE THAT NORMAL TRANSMISSION TIME FROM THE PINE BLUFF OFFICE OF THE TELEGRAPH COMPANY TO THE ARSENAL MESSAGE CENTER IS ABOUT 5 MINUTES, AND THE PROPERTY DISPOSAL OFFICER HAD MADE A FINDING OF FACT THAT AT LEAST 20 MINUTES, AND NORMALLY 25 TO 30 MINUTES ARE REQUIRED TO PROCESS A TELEGRAM AT THE ARSENAL MESSAGE CENTER AND TRANSMIT IT TO THE OFFICE OF THE PROPERTY DISPOSAL OFFICER.

BASED UPON THIS RECORD, THE DEPARTMENT OF THE ARMY HAS REFUSED TO CONSIDER YOUR BID, AS AMENDED BY YOUR TELEGRAM OF NOVEMBER 12, FOR AWARD. YOUR PROTEST AGAINST SUCH REFUSAL APPEARS TO BE BASED UPON THE FOLLOWING GROUNDS:

1. YOU NOTICED THE PROPERTY DISPOSAL OFFICER PRIOR TO BID

OPENING TIME THAT YOU WERE TRANSMITTING A TELEGRAPHIC MODIFICATION

TO YOUR BID.

2. " NORMAL TRANSMISSION TIME" FROM NEW YORK CITY TO THE

ARSENAL IS IMPOSSIBLE TO ASCERTAIN, AND YOU ARE THEREFORE REQUIRED

ONLY TO SHOW THAT THE TELEGRAPH COMPANY DELAYED TRANSMISSION OF YOUR

MESSAGE A GREATER LENGTH OF TIME THAN THE 5 MINUTES IT WAS LATE IN

ARRIVING AT THE ARSENAL MESSAGE CENTER.

3. ANY CIRCUMSTANCES IN THE HANDLING OF TELEGRAMS AT THE ARSENAL

MESSAGE CENTER WHICH WOULD DELAY RECEIPT BY THE PROPERTY DISPOSAL

OFFICER SHOULD HAVE BEEN SET OUT IN THE INVITATION FOR BIDS.

CONCERNING 1 ABOVE, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD WHERE BIDS BY TELEPHONE ARE NOT ACCEPTABLE UNDER THE TERMS OF AN INVITATION, ADVICE BY TELEPHONE THAT A BID MODIFICATION HAS BEEN MAILED OR TELEGRAPHED IS NOT TO BE A CONSIDERED FACTOR IN DETERMINING WHETHER SUCH MODIFICATION IS EFFECTIVE WHEN THE MODIFICATION IS NOT RECEIVED UNTIL AFTER THE TIME SET FOR BID OPENING. SEE 17 COMP. GEN. 961; 35 ID. 426. WE CONSIDER THE HOLDING ON THIS POINT IN THOSE CASES TO BE CONTROLLING IN THE PRESENT CASE.

WITH RESPECT TO THE QUESTION WHETHER IT IS NECESSARY TO PROVE NORMAL TRANSMISSION TIME RATHER THAN THE LENGTH OF DELAY BY THE TELEGRAPH COMPANY BETWEEN FILING AND TRANSMISSION OF YOUR MESSAGE, YOU ARE ADVISED THAT PARAGRAPH 53 OF ARMY REGULATION 755-7 REQUIRES APPLICATION OF THE PRINCIPLES SET FORTH IN THE ARMED SERVICES PROCUREMENT REGULATION TO THE SALE OF SURPLUS PROPERTY, WITH OBVIOUS MODIFICATIONS NECESSITATED BY SELLING RATHER THAN PURCHASING. UNDER THE PROVISION OF ASPR 2-305 THE RULES STATED FOR LATE BIDS IN ASPR 2-303.3 THROUGH 2 303.5 APPLY IN DETERMINING WHETHER LATE MODIFICATIONS SHOULD BE CONSIDERED EFFECTIVE. ASPR 2-303.4 PROVIDES THAT A LATE TELEGRAPHIC BID SHALL BE PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE RECEIVED IN TIME, EXCEPT WHERE THE BIDDER DEMONSTRATES BY CLEAR AND CONVINCING EVIDENCE WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY THAT THE BID, AS RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURE. THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS OF BIDS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. EXCEPTIONS TO THE RULE TEND TO PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND IT IS THEREFORE INCUMBENT UPON ANY BIDDER WHO SEEKS TO INVOKE AN EXCEPTION TO PROVE THAT HE IS ENTIRELY WITHOUT FAULT OR NEGLIGENCE IN TRANSMITTING A LATE MODIFICATION TO HIS BID. AS INDICATED AT 35 COMP. GEN. 426, THE LATE BIDDER'S LACK OF KNOWLEDGE OF OTHER BIDS IS NOT ENOUGH. THE TELEGRAPHIC BID MODIFICATION MUST HAVE BEEN DEPOSITED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS, AND WHERE THERE IS SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THOUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE, THE BURDEN OF PROOF OF WHICH IS PLACED UPON THE BIDDER. UNDER THIS EXCEPTION IT IS NOT SUFFICIENT FOR A LATE BIDDER TO SHOW THAT HIS MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER OPTIMUM CONDITIONS. HE MUST SHOW THAT HIS MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL, OR FORESEEABLE DELAYS, AND THAT ITS FAILURE TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION.

WHETHER IT WAS, OR WAS NOT, NORMAL PROCEDURE FOR THE TELEGRAPH OFFICE IN NEW YORK CITY TO TRANSMIT MESSAGES IMMEDIATELY UPON FILING, OR IN ANY PERIOD OF TIME LESS THAN THE 15 MINUTES YOUR MESSAGE WAS DELAYED, WOULD APPEAR TO BE IMMATERIAL IN THIS CASE. ALL OF THE EVIDENCE PERTAINING TO THE NORMAL TRANSMISSION TIME BETWEEN NEW YORK CITY AND PINE BLUFF INDICATES THAT SUCH TIME IS APPROXIMATELY 30 MINUTES. TO THIS MUST BE ADDED ABOUT 5 MINUTES REQUIRED TRANSMISSION TIME FROM PINE BLUFF TO THE ARSENAL MESSAGE CENTER. IN VIEW OF THE FACT THAT YOUR MESSAGE WAS RECEIVED AT THE ARSENAL MESSAGE CENTER 35 MINUTES AFTER THE TIME IT WAS FILED WITH THE TELEGRAPH COMPANY, WE MUST AGREE WITH THE FINDING OF THE CONTRACTING OFFICIALS THAT THERE IS INSUFFICIENT EVIDENCE TO CONCLUDE THAT IT WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURE, AS REQUIRED BY ASPR 2- 303.4.

IN VIEW OF SUCH CONCLUSION, IT IS UNNECESSARY TO DISCUSS THE QUESTION OF WHETHER THE MODIFICATION TO YOUR BID WAS REQUIRED TO BE AT THE ARSENAL MESSAGE CENTER OR IN THE OFFICE OF THE PROPERTY DISPOSAL OFFICER PRIOR TO BID OPENING TIME.