B-147662, DEC. 29, 1951

B-147662, DEC. 29, 1951

TO MR. JOHN C. HELFRICH, BRANCH OF PLANT DESIGN AND CONSTRUCTION, BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1961, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER TELEGRAPHIC MODIFICATIONS OF THE BIDS OF H. HALVORSON, INC., GRAND FORKS, NORTH DAKOTA, AND OTTO J. EICKHOF AND SONS, INC., CROOKSTON, MINNESOTA, SHOULD BE CONSIDERED IN MAKING AN AWARD UNDER INVITATION FOR BIDS NO. BIA-0150-62-16.

THE INVITATION ISSUED BY THE BRANCH OF PLANT DESIGN AND CONSTRUCTION, BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, NEW MEXICO, REQUESTED BIDS TO BE RECEIVED UNTIL 2 P.M., M.S.T., ON NOVEMBER 1, 1961, FOR THE CONSTRUCTION AT RED LAKE, MINNESOTA, OF RED LAKE HOSPITAL ADDITION (BASE PROPOSAL NO. 1) AND PERMANENT HOUSING (BASE PROPOSAL NO. 2), PROJECT NOS. ABU-PH-52 AND ABU-PH-55/2). NINE BIDS, INCLUDING THOSE OF H. HALVORSON, INC., AND OTTO J. EICKHOF AND SONS, INC., WERE RECEIVED AND OPENED AT THE SPECIFIED TIME ON NOVEMBER 1, 1961. SUBSEQUENTLY, AT 2:14 P.M. AND 2:25 P.M., .S.T., THE SAME DAY, THERE WERE RECEIVED ON THE WESTERN UNION DESK-FAX, BY WHICH INCOMING TELEGRAMS ARE REGULARLY RECEIVED IN THE BRANCH OF PLANT DESIGN AND CONSTRUCTION, TELEGRAPHIC BID MODIFICATIONS FROM H. HALVORSON, INC., AND OTTO J. EICKHOF AND SONS, INC., RESPECTIVELY. BY TELEGRAMS DATED NOVEMBER 2, 1961, H. HALVORSON, INC., AND OTTO J. EICKHOF AND SONS, INC., WERE ADVISED THAT THE TELEGRAMS MODIFYING THEIR BIDS WERE NOT RECEIVED UNTIL 2:14 P.M. AND 2:25 P.M., M.S.T., ON NOVEMBER 1, 1961, AND THAT THE TELEGRAMS WERE NOT FOR CONSIDERATION UNLESS EVIDENCE WAS SUBMITTED SHOWING THAT THE DELAY WAS OCCASIONED BY THE TELEGRAPH COMPANY AND WAS NOT DUE TO THE FAULT OF THE COMPANIES. H. HALVORSON, INC., WAS ADVISED THAT ITS TELEGRAM INDICATED THAT IT WAS FILED BY THE CORPORATION AT THE GRAND FORKS WESTERN UNION OFFICE AT 2:57 P.M., C.S.T. OTTO J. EICKHOF AND SONS, INC., WAS ADVISED THAT ITS TELEGRAM INDICATED THAT IT WAS FILED BY THE CORPORATION AT THE CROOKSTON, MINNESOTA, WESTERN UNION OFFICE AT 2:40 P.M., C.S.T. YOU STATE THAT THESE TWO BID MODIFICATIONS, ALTHOUGH NOT CHANGING THE STANDING OF BIDDERS ON BASE PROPOSAL NO. 2, WOULD, IF TIMELY, HAVE A DECIDED EFFECT ON THE STANDING OF BIDDERS ON BASE PROPOSAL NO. 1 AS INDICATED BY THE FOLLOWING TABULATION:

TABLE

BIDS TELEGRAPHIC BIDS

BEFORE MODIFICATIONS AFTER

BIDDER MODIF. INCREASE DECREASE MODIF. H. HALVORSON, INC. $275,000 $19,724 $294,724 H. L. STAVN CO., INC. 285,700 285,700 OTTO J. EICKHOF AND SONS, INC. 500,000 $221,000 279,000

IN A LETTER DATED NOVEMBER 6, 1961, H. HALVORSON, INC., ADVISED THE CONTRACTING OFFICE THAT ITS FILE COPY OF THE TELEGRAM INDICATES THAT IT WAS FILED BY THE CORPORATION AT 2:31 P.M. AND NOT AT :57 P.M. AS INDICATED IN THE CONTRACTING OFFICER'S TELEGRAM OF NOVEMBER 2, 1961. WITH ITS LETTER THE CORPORATION SUBMITTED A COPY OF A LETTER DATED NOVEMBER 6, 1961, RECEIVED FROM THE MANAGER OF THE LOCAL WESTERN UNION OFFICE, IN WHICH THE MANAGER EXPLAINED EXACTLY WHY THE CORPORATION'S TELEGRAM WAS DELAYED IN TRANSMISSION. IN HIS LETTER THE MANAGER STATED AS FOLLOWS:

"DUE TO THE LENGTH OF THIS TELEGRAM IT WAS NECESSARY FOR OUR TELEPHONE OPERATOR TO PUT PART OF THE TEXT AND SIGNATURE ON A SECOND SHEET. AFTER THE TRANSACTION WAS COMPLETED ON THE TELEPHONE HE TOOK THE SECOND SHEET OUT OF HIS TYPEWRITER AND TYPED THE FILING TIME OF 231P ON THE CARBON COPY, AND BEFORE HE COULD DO THE SAME ON ORIGINAL COPY THE TELEPHONE RANG AGAIN AND HE COPIED SEVERAL OTHER MESSAGES. MEANTIME ANOTHER OPERATOR NOTICED YOUR MESSAGE LAYING ON THE DESK AND NOTICED THE NATURE OF THE TEXT AND IN ERROR STAMPED ANOTHER FILING TIME ON THE ORIGINAL AND TRANSMITTED THE MESSAGE IMMEDIATELY. THE DIFFERENCE OF FILE TIMES WAS NOTICED LATER AND THE CORRECT FILE TIME OF 231P WAS THEN TYPED ON THE ORIGINAL MESSAGE TO CORRESPOND WITH THE FILE TIME ON YOUR CARBON COPY.'

IN A LETTER DATED NOVEMBER 7, 1961, OTTO J. EICKHOFF AND SONS, INC., STATED THAT WHEN ITS TELEGRAM OF NOVEMBER 1, 1961, WAS SENT, THE MESSAGE TO THE TELEGRAPH OFFICE WAS AS FOLLOWS: ,WOULD YOU RUSH THIS TELEGRAM AS FAST AS YOU CAN" AND THAT IT WAS THE CORPORATION'S UNDERSTANDING THAT ITS TELEGRAM WOULD REACH THE BID OPENING OFFICE BEFORE BID TIME. WITH ITS LETTER THE CORPORATION SUBMITTED COPIES OF TELEGRAMS DATED NOVEMBER 6 AND 7, 1961, RECEIVED FROM THE DIVISION MANAGER, OPERATIONS, WESTERN UNION TELEGRAPH COMPANY, CHICAGO, ILLINOIS. IN THE TELEGRAM OF NOVEMBER 6, 1961, THE CORPORATION WAS ADVISED THAT WESTERN UNION RECORDS SHOW THAT ITS TELEGRAM WAS FILED AT 2:40 P.M., C.S.T., ON NOVEMBER 1, 1961. IN THE TELEGRAM OF NOVEMBER 7, 1961, THE CORPORATION WAS ADVISED AS FOLLOWS:

"THIS TELEGRAM WILL CONFIRM THAT IT IS POSSIBLE FOR A TELEGRAM TO BE TRANSMITTED FROM ONE POINT TO ANOTHER IN 15 TO 20 TO 25 MINUTES TRANSMISSION TIME. AS STATED ON THE TELEPHONE HOWEVER WE DO NOT GUARANTEE THIS TYPE OF TRANSMISSION SERVICE.'

IN YOUR LETTER YOU STATE:

"IN TELEGRAMS DATED NOVEMBER 14, 1961, THE CONTRACTING OFFICER ADVISED EACH BIDDER:

"* * * IN PRESENT STATE OF RECORD AND SUBJECT TO REVIEW BY OUR CENTRAL OFFICE TO WHICH THE FILE IS BEING SUBMITTED, YOUR TELEGRAPHIC AMENDMENT IS PRESUMED TO HAVE BEEN FILED TOO LATE TO BE RECEIVED IN TIME; ITS LATE RECEIPT THEREFORE WOULD NOT BE DUE SOLELY TO DELAY BY TELEGRAPH COMPANY FOR WHICH BIDDER WAS NOT RESPONSIBLE. ANY ADDITIONAL PRESENTATION IN FURTHERANCE OF YOUR CONTENTION THAT MESSAGE WAS TIMELY FILED MUST BE RECEIVED NOT LATER THAN NOVEMBER 20, 1961 AND IN ANY EVENT BEFORE AWARD ACTION IS TAKEN.'

"IN HALVORSON'S CASE THE TELEGRAM SET FORTH AS THE BASIS FOR THIS DETERMINATION A BRIEF STATEMENT OF THE CAUSE OF DELAY AS INDICATED IN THE RECORD AVAILABLE AND CONCLUDED:

" " * * * THE DELAY THUS APPEARS TO HAVE BEEN AN INCIDENT OF OPERATING CONDITIONS AND VOLUME OF BUSINESS, AND THERE HAS BEEN NO SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF WESTERN UNION THAT THIS WAS OTHER THAN A NORMAL, USUAL AND FORESEEABLE DELAY WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES ITS WORK. * *

IN A LETTER DATED NOVEMBER 21, 1961, ADDRESSED TO OUR OFFICE, THE ATTORNEY FOR H. HALVORSON, INC., PROTESTED THE RULING BY THE BRANCH OF DESIGN AND CONSTRUCTION THAT THE BID MODIFICATION OF THE CORPORATION COULD NOT BE CONSIDERED FOR AWARD PURPOSES. IN HIS LETTER THE ATTORNEY STATED AS FOLLOWS:

"THE BIDDING CONTRACTOR SUBMITS THE FOLLOWING FACTS TO SUBSTANTIATE ITS POSITION THAT ITS TELEGRAPHIC MODIFICATION WAS TIMELY FILED:

"A. THE MANAGER OF THE WESTERN UNION OFFICE AT GRAND FORKS, NORTH DAKOTA, ADMITS THAT ERROR WAS MADE IN THE TRANSMISSION OF THIS MESSAGE AND THAT THE DELAY IN TRANSMISSION FROM 2:31 P.M. ON THE BID DATE TO 2:57 P.M. WAS THE PROXIMATE CAUSE OF THE FAILURE OF THE MESSAGE TO REACH ITS DESTINATION ON TIME.

"B. THE BIDDER H. HALVORSON, INC., HAS FREQUENTLY USED THE TELEGRAPHIC METHOD OF BID MODIFICATION AND HAS AT ALL TIMES HERETOFORE FOUND THE TIME ALLOTED FOR TRANSMISSION SUFFICIENT.

"C. THE BIDDER ATTEMPTED TO GET THE MESSAGE TO THE TELEGRAPH COMPANY BEGINNING AT 2:15 P.M. OF THE BID DATE BUT DUE TO THE RUSH OF BUSINESS AND AN INEXPERIENCED OPERATOR ON DUTY, THE MESSAGE WAS NOT TAKEN BY THE OPERATOR UNTIL 2:31 P.M.

"D. THE OPERATOR WHO TOOK THE MESSAGE FAILED TO RECOGNIZE THE URGENCY OF THE MESSAGE CONTRARY TO THE ESTABLISHED POLICY AND PROCEDURE OF THE LOCAL OFFICE OF WESTERN UNION AS STATED IN THE MANAGER'S LETTER.

"E. WHEN ANOTHER OPERATOR CHANCED UPON THE MESSAGE AT 2:57 P.M., THE MESSAGE WAS SENT AND THE ACTUAL TRANSMITTAL TIME WAS 17 MINUTES.

"F. IN ORDER THAT THE ACTUAL TIME FOR TRANSMITTAL OF MESSAGES FROM GRAND FORKS, NORTH DAKOTA, TO ALBUQUERQUE, NEW MEXICO COULD BE DETERMINED, THE H. HALVORSON COMPANY CONDUCTED A TEST ON JUNE 9, 1959, BY SENDING A MESSAGE AND RECORDING THE TIME BETWEEN THE TWO POINTS. ON THAT TRIAL TEST THE ELAPSED TIME WAS 28 MINUTES.

"G. IN VIEW OF THE EXPERIENCE OF THE BIDDER AT PREVIOUS TIMES, IT IS SUBMITTED THAT THE DELAY IN THIS INSTANCE WAS NOT NORMAL OR USUAL AND THAT THERE WAS NOTHING TO PLACE THE BIDDER ON NOTICE OF FORESEEABLE DELAY. NORMAL TRANSMISSION PROCEDURE FOR THIS PARTICULAR BRANCH OF WESTERN UNION COUPLED WITH THE KNOWLEDGE AND UNDERSTANDING OF THE MANAGER OF THAT BRANCH OFFICE AS TO THE URGENCY OF THIS TYPE OF MESSAGE WOULD PUT AN ELAPSED TIME OF 43 MINUTES FROM RECEIPT TO DELIVERY OF THE MESSAGE BEYOND NORMAL TRANSMISSION TIME.'

WITH RESPECT TO THE TELEGRAPHIC MODIFICATION SENT BY H. HALVORSON, INC., THE DIVISION MANAGER-OPERATIONS, WESTERN UNION TELEGRAPH COMPANY, DALLAS, TEXAS, IN A LETTER DATED NOVEMBER 13, 1961, ADVISED THE BID OPENING OFFICER AS FOLLOWS:

"UNDER VERY FAVORABLE CONDITIONS THE TELEGRAM IN QUESTION COULD HAVE BEEN DELIVERED TO YOUR OFFICE BY 200 PM MST BUT THE TELEGRAPH COMPANY DOES NOT GUARANTEE DELIVERY OF ANY MESSAGE WITHIN ANY SPECIFIED LENGTH OF TIME, AND OUR INVESTIGATION REVEALED NO FAULT IN OUR SERVICE.'

PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS ADVISED ALL BIDDERS AS FOLLOWS:

"LATE BIDS AND MODIFICATIONS OR WITHDRAWALS. BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS RECEIVED BEFORE AWARD AND (A) THEY ARE SUBMITTED BY MAIL (OR BY TELEGRAPH, IF AUTHORIZED) AND (B) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY, IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. HOWEVER, A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

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.

IN OUR OPINION IT WAS NOT REASONABLE FOR H. HALVORSON, INC., TO BELIEVE THAT DELIVERY OF THE TELEGRAM WITHIN 29 MINUTES WOULD BE PREVENTED ONLY BY ABNORMAL, UNUSUAL OR UNFORESEEABLE DELAYS BY THE TELEGRAPH COMPANY. THE MOST THAT THE EVIDENCE SUBMITTED SHOWS IS THAT THE TELEGRAM COULD HAVE BEEN DELIVERED WITHIN THE 29 MINUTES ALLOWED UNDER THE MOST FAVORABLE CONDITIONS.

ACCORDINGLY, YOU ARE ADVISED THAT THE LATE TELEGRAPHIC MODIFICATION OF THE BID OF H. HALVORSON, INC., IS NOT PROPER FOR CONSIDERATION IN MAKING THE AWARD.

IN VIEW OF THE FOREGOING, THE PROPRIETY OF CONSIDERING THE TIMELINESS OF THE TELEGRAPHIC BID MODIFICATION SUBMITTED BY OTTO J. EICKHOF AND SONS, INC., APPEARS TO BE ACADEMIC AT THIS TIME SINCE, EVEN THOUGH WE WERE TO ACCEPT THE BID MODIFICATION AS BEING TIMELY FILED, THE CORPORATION'S AMENDED BID WOULD STILL BE HIGHER THAN THE ORIGINAL BID OF H. HALVORSON, INC., ON BASE PROPOSAL NO. 1.