B-148370, APR. 2, 1962

B-148370, APR. 2, 1962

TO CONTRACTING OFFICER, CONSTRUCTION SERVICE, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 9 AND 12, 1962, REQUESTING A DECISION WHETHER THERE MAY BE CONSIDERED CERTAIN LATE TELEGRAPHIC MODIFICATIONS OF THE BIDS SUBMITTED UNDER PROJECT NO. 14 5150, COVERING ALTERATIONS TO BUILDINGS 1, 2, 3 AND 4 AND REPLACEMENT OF ELECTRIC DISTRIBUTION SYSTEM AT THE VETERANS ADMINISTRATION CENTER, DES MOINES, IOWA.

THE INVITATION, ISSUED ON JANUARY 23, 1962, PROVIDED THAT BIDS FOR THE WORK INVOLVED WOULD BE RECEIVED UNTIL 1:30 P.M., E.S.T., FEBRUARY 27, 1962, AT THE OFFICE OF THE DIRECTOR, CONSTRUCTION SERVICE, VETERANS ADMINISTRATION, MUNITIONS BUILDING, WASHINGTON 25, D.C., AND AT THAT TIME PUBLICLY OPENED IN ROOM 2033, MUNITIONS BUILDING.

THE RECORD SHOWS THAT NINE BIDS, INCLUDING SIX TELEGRAMS MODIFYING WRITTEN PROPOSALS, WERE RECEIVED, OPENED AND ANNOUNCED AT THE SCHEDULED BID OPENING TIME, 1:30 P.M., E.S.T. ALSO ON HAND AT THE TIME OF THE OPENING WAS A TELEGRAM FROM THE RING CONSTRUCTION CORPORATION PURPORTING TO MODIFY ITS BID, ALTHOUGH THE BID ITSELF HAD NOT BEEN RECEIVED. UPON RECEIPT OF THE BID OF THE RING CONSTRUCTION CORPORATION IT WAS DETERMINED THAT THE BID WAS MAILED ON TIME AND SHOULD HAVE BEEN RECEIVED PRIOR TO THE OPENING, AND WAS THEREFORE PROPER FOR CONSIDERATION IN ACCORDANCE WITH PARAGRAPHS 1-2.303-2 AND 1-2.303 3 OF THE FEDERAL PROCUREMENT REGULATIONS. THE BID OF THE RING CONSTRUCTION CORPORATION TOGETHER WITH THE TIMELY RECEIVED TELEGRAPHIC MODIFICATION THEREOF IS THE LOW TIMELY BID.

SUBSEQUENT TO THE TIME OF THE BID OPENING, 10 ADDITIONAL TELEGRAPHIC MODIFICATIONS OF WRITTEN PROPOSALS WERE RECEIVED. OF THESE, TWO WERE RECEIVED IN THE TELETYPE ROOM IN THE MUNITIONS BUILDING PRIOR TO THE TIME FOR THE SCHEDULED BID OPENING BUT THEY WERE NOT DELIVERED TO THE OPENING OFFICIALS UNTIL AFTER THE OPENING. THE QUESTION FOR CONSIDERATION IS WHICH, IF ANY, OF THESE LATE TELEGRAPHIC MODIFICATIONS ARE PROPER FOR CONSIDERATION.

THE RECORD SHOWS THAT FOR THE PURPOSE OF DETERMINING THE LOW BIDDER THE LATE TELEGRAPHIC MODIFICATIONS AFFECT ONLY THE POSITION OF THE BIDS OF THE RING CONSTRUCTION CORPORATION, ALPORT CONSTRUCTION COMPANY, AND THE WEITZ COMPANY, INC. THEREFORE ONLY THE LATE TELEGRAPHIC MODIFICATIONS SUBMITTED BY THESE THREE BIDDERS WILL BE CONSIDERED.

RING DISPATCHED ITS LATE TELEGRAPHIC MODIFICATIONS FROM MINNEAPOLIS, MINNESOTA, 44 AND 36 MINUTES BEFORE THE SCHEDULED BID OPENING. THEY ARRIVED AT THE V.A. TELETYPE ROOM 10 AND 36 MINUTES, RESPECTIVELY, AFTER 1:30. THESE TWO MODIFICATIONS ARE IN ADDITION TO THE TELEGRAPHIC MODIFICATION FROM RING WHICH WAS TIMELY RECEIVED.

ALPORT DISPATCHED ITS LATE TELEGRAPHIC MODIFICATION FROM DES MOINES, IOWA, 35 MINUTES BEFORE THE SCHEDULED BID OPENING. THIS MODIFICATION ARRIVED AT THE V.A. TELETYPE ROOM 21 MINUTES AFTER :30. ALPORT ALSO DISPATCHED A PRIOR MODIFICATION 65 MINUTES BEFORE 1:30, WHICH WAS NOT RECEIVED IN THE V.A. UNTIL AFTER ITS SUBSEQUENT TELEGRAM. HOWEVER, THE EARLIER MODIFICATION IS NOT PERTINENT AS IT WAS SUPERSEDED BY THE LATER ONE AND THE LATER MODIFICATION IS REQUIRED TO MAKE THE ALPORT BID LOW UNDER ANY CIRCUMSTANCES.

WEITZ SENT ITS LATE TELEGRAPHIC MODIFICATION FROM DES MOINES, IOWA, 52 MINUTES BEFORE THE SCHEDULED BID OPENING. THE TRANSMISSION OF THIS MESSAGE TO THE V.A. OVER ITS TIELINE WAS COMPLETED AT 1:27 P.M., E.S.T., THREE MINUTES BEFORE BID OPENING TIME, ACCORDING TO THE WESTERN UNION TIME SHOWN AT THE END THEREOF. THIS MESSAGE, TOGETHER WITH ANOTHER MESSAGE FROM ANOTHER BIDDER ON THIS SAME PROJECT, WHICH WAS RECEIVED AT 1:25, WAS TAKEN FROM THE MACHINE BY A V.A. EMPLOYEE IN THE TELETYPE ROOM AND STAMPED IN AT 1:36. WEITZ HAD SENT AN EARLIER MODIFICATION ONE HOUR AND 48 MINUTES BEFORE OPENING TIME, WHICH WAS RECEIVED IN THE V.A. TELETYPE ROOM AT 1:00 .M., E.S.T., AND WAS READ AT THE BID OPENING. AS A MATTER MERELY OF INTEREST IT IS NOTED THAT ON THE FOLLOWING MORNING WEITZ SENT A TELEGRAM PROTESTING THE CONSIDERATION OF THE LATE MODIFICATIONS FROM RING AND ALPORT. THIS TELEGRAM WAS DISPATCHED AT 10:11 A.M., E.S.T., WAS RECEIVED OVER THE V.A. TIELINE AT 10:29, REMOVED FROM THE MACHINE AND STAMPED IN AT 10:40, OR A TOTAL LAPSED TIME OF 29 MINUTES.

PARAGRAPH 1-2.305 OF THE FEDERAL PROCUREMENT REGULATIONS, SETTING FORTH THE CONDITIONS UNDER WHICH LATE MODIFICATIONS OF BIDS MAY BE CONSIDERED, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) MODIFICATIONS OF BIDS AND REQUESTS FOR WITHDRAWAL OF BIDS WHICH ARE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SPECIFIED FOR OPENING ARE "LATE MODIFICATIONS" AND "LATE WITHDRAWALS," RESPECTIVELY. A LATE MODIFICATION OR LATE WITHDRAWAL SHALL BE SUBJECT TO THE RULES APPLICABLE TO LATE BIDS SET FORTH IN SECTIONS 1- 2.303-3 THROUGH 1-2.303-5, AND SHALL BE CONSIDERED AS BEING EFFECTIVE ONLY IF IT IS RECEIVED BEFORE AWARD., AND EITHER:

(1) IT IS DETERMINED THAT ITS LATENESS WAS DUE SOLELY TO:

(I) DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(II) DELAY IN TELEGRAPHIC TRANSMISSION FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR

(2) IT IS DETERMINED THAT THE MODIFICATION OR WITHDRAWAL, IF SUBMITTED BY MAIL OR TELEGRAM, WAS RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SPECIFIED FOR OPENING AND, EXCEPT FOR DELAY DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION, WOULD HAVE BEEN RECEIVED ON TIME AT THE OFFICE DESIGNATED: PROVIDED, HOWEVER, A MODIFICATION RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER WHICH IS FAVORABLE TO THE GOVERNMENT AND WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS SHALL BE CONSIDERED AT ANY TIME THAT SUCH MODIFICATION IS RECEIVED.'

PARAGRAPH 1-2.303-4, COVERING LATE TELEGRAPHIC BIDS, PROVIDES:

"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 AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.'

THESE PROVISIONS OF THE FPR CLEARLY SET FORTH THE CONDITIONS UNDER WHICH TELEGRAPHIC MODIFICATIONS OF BIDS WILL BE CONSIDERED WHEN RECEIVED LATE. IT MUST BE ESTABLISHED THAT THE TELEGRAPHIC MODIFICATION WAS DISPATCHED IN SUFFICIENT TIME TO REACH THE PLACE DESIGNATED FOR THE RECEIPT OF BIDS AT THE TIME SPECIFIED IN THE INVITATION IN ORDER THAT IT MAY BE ANNOUNCED AT THE PUBLIC OPENING. THIS REQUIREMENT IS THE ABSOLUTE RESPONSIBILITY OF THE BIDDER AND IT MAY NOT BE MET BY A MERE SHOWING THAT A PARTICULAR TELEGRAM COULD HAVE BEEN RECEIVED TIMELY UNDER FAVORABLE CONDITIONS. COMP. GEN. 586 AND 40 ID. 290. IN REFERRING TO THESE DECISIONS IT WAS STATED IN DECISION OF DECEMBER 29, 1960, B-144206, AS FOLLOWS:

"WE THINK THESE DECISIONS CLEARLY ESTABLISH THE PRINCIPLE THAT IT IS NOT ENOUGH TO MERELY SHOW THAT THE TELEGRAPHIC MESSAGE WAS DELAYED BEYOND THE "OPTIMUM" CONDITIONS THE TELEGRAPH COMPANY MAY ENDEAVOR TO MAINTAIN. RATHER IT IS NECESSARY THAT THE BIDDER ESTABLISH THAT THE HANDLING HIS MESSAGE RECEIVED WAS OTHER THAN ROUTINE. * * *.'

IN THE INSTANT CASE THE PARTICULAR LATE TELEGRAPHIC MODIFICATIONS INVOLVED WERE DISPATCHED FROM MINNEAPOLIS OR DES MOINES FROM 52 TO 35 MINUTES BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. WITH RESPECT TO THE TIME REQUIRED TO DELIVER MESSAGES IN VARIOUS CITIES PURSUANT TO STATISTICS FILED MONTHLY WITH THE FEDERAL COMMUNICATIONS COMMISSION THE DISTRICT MANAGER OF THE WESTERN UNION TELEGRAPH COMPANY FOR WASHINGTON, D.C., ADVISED IN A LETTER DATED FEBRUARY 28, 1962, AS FOLLOWS:

"FOR THE TWELVE MONTHS OF 1961 THE AVERAGE ELAPSED TIME, THAT IS THE TIME MESSAGES WERE FILED TO TIME DELIVERED TO WESTERN UNION TIELINE CUSTOMERS IN WASHINGTON, RAN FROM A LOW OF 32 MINUTES IN ONE MONTH TO A HIGH OF 39.1 MINUTES IN ANOTHER MONTH. THIS MEANS, OF COURSE, THAT SOME MESSAGES ARE DELIVERED IN 10 OR 15 MINUTES AND OTHERS TAKE LONGER.'

IT HAS ALWAYS BEEN OUR UNDERSTANDING THAT WESTERN UNION DOES NOT GUARANTEE ANY PARTICULAR TIME FOR DELIVERY OF A MESSAGE AND THAT DELIVERY AT ALL TIMES IS DEPENDENT ON OPERATING CONDITIONS AND VOLUME OF BUSINESS WHICH VARIES CONSTANTLY FROM HOUR TO HOUR AND DAY TO DAY.

ATTORNEYS FOR WEITZ URGE THAT THE LATE TELEGRAPHIC MODIFICATIONS FROM RING AND ALPORT WHICH WERE NOT RECEIVED IN THE VETERANS ADMINISTRATION BEFORE THE SCHEDULED BID OPENING AT 1:30 P.M., AND WERE DISPATCHED ONLY 44, 36 AND 35 MINUTES PRIOR THERETO, CANNOT BE CONSIDERED TO HAVE BEEN SENT IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE. WE AGREE WITH THIS CONTENTION. IN OUR OPINION, THE MOST THE EVIDENCE SHOWS IS THAT SUCH TELEGRAMS COULD HAVE BEEN DELIVERED WITHIN THE TIME ALLOWED UNDER FAVORABLE CONDITIONS.

WEITZ- ATTORNEYS URGE, HOWEVER, THAT THE LATE TELEGRAPHIC MODIFICATION BY WHICH WEITZ WOULD BECOME LOW BIDDER DOES NOT STAND IN THE SAME POSITION AS THE RING AND ALPORT MODIFICATIONS SINCE IT ARRIVED IN THE V.A. TELETYPE ROOM AT 1:27 P.M., E.S.T., OR BEFORE THE SCHEDULED BID OPENING AT 1:30 P.M.

INSOFAR AS CONCERNS THE TIME ALLOWED FOR THE TRANSMISSION OF THE MESSAGE, 52 MINUTES, WEITZ IN OUR OPINION IS IN NO BETTER POSITION THAN RING OR ALPORT. THEREFORE, UNLESS IT CAN BE CONSIDERED THAT THE RECEIPT OF THE TELEGRAM IN THE V.A. TELETYPE ROOM CONSTITUTED DELIVERY, WEITZ- LATE MODIFICATION MUST ALSO BE DISREGARDED.

PARAGRAPH 1-2.305 (2) OF FPR, QUOTED ABOVE, SPECIFICALLY PROVIDES THAT SUCH MESSAGES MUST BE RECEIVED AT THE GOVERNMENT INSTALLATION IN SUFFICIENT TIME TO BE DELIVERED AT THE OFFICE DESIGNATED IN THE INVITATION BY THE TIME SPECIFIED FOR OPENING UNLESS THE DELAY WAS DUE TO MISHANDLING ON THE PART OF THE GOVERNMENT AT THE INSTALLATION.

THE TELETYPE ROOM WAS NOT THE OFFICE DESIGNATED IN THE INVITATION HERE INVOLVED FOR THE OPENING OF THE BIDS. IT IS UNDERSTOOD THAT THE TELETYPE ROOM IN THE MUNITIONS BUILDING IS THE CENTRAL OFFICE FOR RECEIVING TELEGRAPHIC MESSAGES AND THAT NORMALLY THEY ARE SENT BY PNEUMATIC TUBE TO THE CENTRAL MAIL ROOM AND FROM THERE DELIVERED AT INTERVALS TO THE VARIOUS OFFICES BY MESSENGER. HOWEVER THE TELETYPE OR MAIL ROOM EMPLOYEES DO SOMETIMES NOTIFY A PARTICULAR OFFICE BY TELEPHONE OF THE RECEIPT OF A TELEGRAM AND THE OFFICE WILL SEND ONE OF ITS MESSENGERS TO PICK UP THE TELEGRAM OR A PARTICULAR OFFICE MAY CHECK TO SEE IF ANY TELEGRAMS HAVE ARRIVED AND, IF SO, WILL SEND A MESSENGER TO PICK THEM UP.

IN THE INSTANT CASE IT CANNOT BE CONSIDERED THAT THE REASON FOR THE FAILURE OF WEITZ- TELEGRAPHIC MODIFICATION TO HAVE BEEN AVAILABLE FOR ANNOUNCEMENT AT THE BID OPENING WAS DUE TO ANY MISHANDLING ON THE PART OF THE GOVERNMENT. THEREFORE WEITZ- LATE TELEGRAPHIC MODIFICATION IS NOT FOR CONSIDERATION.

IN VIEW OF THE FOREGOING YOU ARE ADVISED THAT THE LOW TIMELY BID WAS SUBMITTED BY RING AND, SINCE ITS TWO MODIFICATIONS WHICH WERE RECEIVED LATE ARE BENEFICIAL TO THE GOVERNMENT AND NOT PREJUDICIAL TO OTHER BIDDERS, THEY MAY BE ACCEPTED PURSUANT TO FPR 1-2.305 (A) (2).