B-144692, DEC. 30, 1960

B-144692: Dec 30, 1960

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BUREAU OF RECLAMATION: REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 22. THE BIDS RECEIVED WERE OPENED AT THE SPECIFIED TIME AND MIDLAND CONSTRUCTORS. WAS THE APPARENT LOW BIDDER. WAS THE SECOND LOW BIDDER. A TELEGRAM WAS RECEIVED FROM ELECTRICAL CONSTRUCTORS. IF SUCH TELEGRAM IS PROPER FOR CONSIDERATION. IT IS STATED THAT THE TELEGRAM WAS DISPATCHED FROM COLUMBUS. WAS RECEIVED IN THE WESTERN UNION OFFICE IN HURON AT 9:41 A.M. WAS DELIVERED TO THE BUREAU OF RECLAMATION OFFICE AT 10:25 A.M. IN ORDER TO DETERMINE WHETHER THERE WAS A DELAY BY THE TELEGRAPH COMPANY IN THE DELIVERY OF THE TELEGRAM. INFORMATION WAS REQUESTED FROM THE TELEGRAPH OFFICE IN HURON. WHICH REPLIED AS FOLLOWS: "A TELEGRAM RECEIVED THIS OFFICE AT 941 AM COULD POSSIBLY HAVE BEEN DELIVERED TO BUREAU OF RECLAMATION OFFICE BY 10 AM.

B-144692, DEC. 30, 1960

TO MR. B. P. BELLPORT, CHIEF ENGINEER, DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 22, 1960, REQUESTING A DECISION AS TO WHETHER A TELEGRAPHIC MODIFICATION OF THE BID OF ELECTRICAL CONSTRUCTORS OF COLUMBUS, OHIO, SHOULD BE CONSIDERED FOR AWARD UNDER SPECIFICATIONS DC-5431.

THE INVITATION ISSUED BY THE BUREAU OF RECLAMATION, HURON, SOUTH DAKOTA, REQUESTED BIDS TO BE RECEIVED UNTIL 10:00 A.M., CENTRAL STANDARD TIME ON DECEMBER 7, 1960, FOR THE CONSTRUCTION OF TRANSMISSION LINE SWITCHYARD APPROACH TOWERS.

THE BIDS RECEIVED WERE OPENED AT THE SPECIFIED TIME AND MIDLAND CONSTRUCTORS, INC., OF CHICAGO, ILLINOIS, WAS THE APPARENT LOW BIDDER. ELECTRICAL CONSTRUCTORS OF COLUMBUS, OHIO, WAS THE SECOND LOW BIDDER. SUBSEQUENTLY, AT 10:25 A.M., CENTRAL STANDARD TIME, THE SAME DAY, A TELEGRAM WAS RECEIVED FROM ELECTRICAL CONSTRUCTORS, REDUCING ITS BID ON ITEMS 16 AND 17 BY 8 PERCENT. IF SUCH TELEGRAM IS PROPER FOR CONSIDERATION, ELECTRICAL CONSTRUCTORS WOULD BE THE LOW BIDDER.

IT IS STATED THAT THE TELEGRAM WAS DISPATCHED FROM COLUMBUS, OHIO, ON DECEMBER 7 AT 10:23 A.M., EASTERN STANDARD TIME, WAS RECEIVED IN THE WESTERN UNION OFFICE IN HURON AT 9:41 A.M., CENTRAL STANDARD TIME, AND WAS DELIVERED TO THE BUREAU OF RECLAMATION OFFICE AT 10:25 A.M. IN ORDER TO DETERMINE WHETHER THERE WAS A DELAY BY THE TELEGRAPH COMPANY IN THE DELIVERY OF THE TELEGRAM, INFORMATION WAS REQUESTED FROM THE TELEGRAPH OFFICE IN HURON, WHICH REPLIED AS FOLLOWS:

"A TELEGRAM RECEIVED THIS OFFICE AT 941 AM COULD POSSIBLY HAVE BEEN DELIVERED TO BUREAU OF RECLAMATION OFFICE BY 10 AM. ABNORMAL WEATHER CONDITIONS AND MESSAGE LOAD ON DECEMBER 7 1960 SLOWED ALL TRAFFIC TO AND FROM THIS OFFICE. WESTERN UNION TEL CO.'

WHILE WE DO NOT HAVE A COPY OF THE PARTICULAR INVITATION FOR BIDS, IT IS ASSUMED THAT IT CONTAINS THE STANDARD PROVISION THAT LATE TELEGRAPHIC MODIFICATIONS OF BIDS WILL BE CONSIDERED IF RECEIVED PRIOR TO AWARD, AND IF DEPOSITED FOR TRANSMISSION BY TELEGRAPH IN TIME FOR RECEIPT BY NORMAL TRANSMISSION PROCEDURE PRIOR TO THE TIME FIXED FOR THE OPENING OF THE BIDS AND SUBSEQUENTLY DELAYED BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER.

IN DECISION OF FEBRUARY 12, 1960, 39 COMP. GEN. 586, IT WAS HELD:

"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 THROUGH 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.'

IT HAS ALSO BEEN HELD THAT "NORMAL TRANSMISSION PROCEDURE" DOES NOT MEAN THE SHORTEST POSSIBLE TIME IN WHICH A TELEGRAM COULD BE DELIVERED. RATHER, IT IS INCUMBENT UPON THE BIDDER TO SEND THE TELEGRAM IN SUFFICIENT TIME TO PROVIDE NOT ONLY AGAINST SLIGHT DELAYS OF EVERY DAY OCCURRENCE BUT ALSO AGAINST LONGER DELAYS WHICH EXPERIENCE SHOWS ARE LIKELY TO OCCUR FROM TIME TO TIME. SEE B-144371, NOVEMBER 16, 1960, SUSTAINED UNDER DATE OF DECEMBER 9, 1960.

ALTHOUGH WEATHER CONDITIONS AND MESSAGE LOAD MAY HAVE BEEN CONTRIBUTING FACTORS TO THE TELEGRAM NOT BEING DELIVERED PRIOR TO 10:00 A.M., THERE IS NO SHOWING THAT THE WEATHER CONDITIONS WERE ABNORMAL FOR THE TIME OF THE YEAR. FURTHERMORE, EVEN DISCOUNTING SUCH FACTORS, THERE IS NO ASSURANCE THAT THE TELEGRAM WOULD HAVE BEEN DELIVERED WITHIN THE 19 MINUTES ALLOWED.

IN VIEW OF THE FOREGOING, IT MUST BE CONSIDERED THAT THERE WERE NO ABNORMAL, UNUSUAL, OR EXTRAORDINARY DELAYS IN THE DELIVERY OF THE TELEGRAM. RATHER, IT MUST BE CONCLUDED THAT THE BASIC REASON FOR NON RECEIPT FOR THE TELEGRAM BY 10:00 A.M. WAS THE BIDDER'S FAILURE TO EXERCISE REASONABLE CARE BY SENDING IT EARLIER THAN 37 MINUTES BEFORE BID OPENING. ACCORDINGLY, YOU ARE ADVISED THAT THE LATE TELEGRAPHIC MODIFICATION OF THE BID OF ELECTRIC CONSTRUCTORS IS NOT PROPER FOR CONSIDERATION IN MAKING THE AWARD.