B-151059, MAY 1, 1963

B-151059: May 1, 1963

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BIDS WERE OPENED ON JANUARY 3. SIEGEL'S BID $0.0591 ON ITEM 15 AND WAS ALSO HIGH BIDDER ON ITEM 12. ANOTHER BIDDER APPARENTLY WAS HIGH ON ITEM 15 AT $0.09319 PER POUND. SIEGEL WAS RECEIVED BY THE SALES CONTRACTING OFFICE WHICH INCREASED HIS BID PRICE ON ITEM 15 BY $0.054 TO $0.1131 PER POUND. SINCE IT WAS DETERMINED THAT THE TELEGRAM WAS RECEIVED AT THE INSTALLATION IN AMPLE TIME TO REACH THE SALES CONTRACTING OFFICE PRIOR TO BID OPENING AND THAT THE BID DEPOSIT WAS SUFFICIENT TO COVER MR. THE MODIFICATION WAS CONSIDERED ACCEPTABLE UNDER THE GENERAL RULES APPLICABLE TO LATE TELEGRAPHIC MODIFICATIONS. ARTICLE F OF THE SPECIAL CONDITIONS OF SALE PROVIDED THAT MODIFICATIONS OF BIDS BY TELEGRAPH WILL BE CONSIDERED IF BOTH THE BID AND THE TELEGRAPHIC MODIFICATION THERETO ARE RECEIVED PRIOR TO THE HOUR SET FOR OPENING OF BIDS.

B-151059, MAY 1, 1963

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

BY LETTER DATED MARCH 12, 1963, YOUR ASSISTANT COUNSEL REQUESTED OUR DECISION AS TO WHETHER THE REQUEST OF J. M. SIEGEL FOR RELIEF UNDER SALES CONTRACT NO. DSA 47-S-436 MAY BE GRANTED.

THE DEFENSE SURPLUS SALES OFFICE, NORTON AIR FORCE BASE, SAN BERNARDINO, CALIFORNIA, BY SALES INVITATION NO. 47-S-63-24, REQUESTED SEALED BIDS FOR THE SALE OF CERTAIN MISCELLANEOUS SCRAP MATERIALS, ITEM 15 OF WHICH COVERED 100,000 POUNDS OF COPPER SCRAP. BIDS WERE OPENED ON JANUARY 3, 1963, AND IT APPEARED THAT MR. SIEGEL'S BID $0.0591 ON ITEM 15 AND WAS ALSO HIGH BIDDER ON ITEM 12. ANOTHER BIDDER APPARENTLY WAS HIGH ON ITEM 15 AT $0.09319 PER POUND. ON JANUARY 4, 1963, A TELEGRAM FROM MR. SIEGEL WAS RECEIVED BY THE SALES CONTRACTING OFFICE WHICH INCREASED HIS BID PRICE ON ITEM 15 BY $0.054 TO $0.1131 PER POUND. SINCE IT WAS DETERMINED THAT THE TELEGRAM WAS RECEIVED AT THE INSTALLATION IN AMPLE TIME TO REACH THE SALES CONTRACTING OFFICE PRIOR TO BID OPENING AND THAT THE BID DEPOSIT WAS SUFFICIENT TO COVER MR. SIEGEL'S BID AS MODIFIED, THE MODIFICATION WAS CONSIDERED ACCEPTABLE UNDER THE GENERAL RULES APPLICABLE TO LATE TELEGRAPHIC MODIFICATIONS, CITING 39 COMP. GEN. 586. ARTICLE F OF THE SPECIAL CONDITIONS OF SALE PROVIDED THAT MODIFICATIONS OF BIDS BY TELEGRAPH WILL BE CONSIDERED IF BOTH THE BID AND THE TELEGRAPHIC MODIFICATION THERETO ARE RECEIVED PRIOR TO THE HOUR SET FOR OPENING OF BIDS. HENCE, WE AGREE THAT THE TELEGRAM PROPERLY WAS CONSIDERED AS A VALID MODIFICATION OF MR. SIEGEL'S BID. SEE B-134685, FEBRUARY 10, 1958; 37 COMP. GEN. 604.

LATER DURING THE DAY OF JANUARY 4, 1963, MR. SIEGEL WAS INFORMED THAT HE WAS HIGH ON ITEMS 12 AND 15 AND THAT HIS TELEGRAPHIC MODIFICATION HAD BEEN RECEIVED. ON JANUARY 7, 1963, THE CONTRACTING OFFICER CONTACTED MR. SIEGEL AND READ HIM THE TELEGRAPHIC MODIFICATION. MR. SIEGEL ADVISED THAT THE TELEGRAM WAS CORRECT AND THAT THE $0.054 INCREASE WAS ALSO CORRECT. ACCORDINGLY, AWARD OF ITEMS 12 AND 15 WERE MADE TO MR. SIEGEL ON JANUARY 9, 1963. THEREAFTER, ON JANUARY 16, 1963, MR. SIEGEL ALLEGED THAT THE TELEGRAPHIC MODIFICATION WAS IN ERROR IN THAT THE TELEGRAPH OPERATOR HAD TYPED HIS BID INCREASE INCORRECTLY. MR. SIEGEL SUBMITTED A LETTER FROM THE TELEGRAPH COMPANY IN SUPPORT OF HIS REQUEST THAT THE AWARD ON ITEM 15 BE CANCELLED. THE LETTER FROM THE TELEGRAPH COMPANY READ IN PART AS FOLLOWS:

"WHILE THE ATTACHED COPY OF THE MESSAGE SHOWS THE 14TH WORD AS .0540, IT IS POSSIBLE THAT THERE WAS A MISUNDERSTANDING AT THE TIME THE MESSAGE WAS FILED WITH US OVER THE TELEPHONE.

"IT IS NOTED THAT THE OTHER TWO BID INCREASES WERE .0034 AND .0017 SO IT WOULD APPEAR THAT THE FIRST ITEM SHOULD HAVE READ .0054.

"UNFORTUNATELY, AT THIS LATE DATE, THE EMPLOYEE CANNOT RECALL THE CIRCUMSTANCES. IF THE TELEGRAPH SERVICE WAS AT FAULT, IT IS HOPED THAT YOU WILL ACCEPT OUR APOLOGIES.'

THIS LATTER DOES NOT ESTABLISH THAT THE TELEGRAPH COMPANY MADE AN ERROR IN TRANSMITTING THE MESSAGE BUT ONLY THAT A POSSIBILITY OF MISUNDERSTANDING MAY HAVE DEVELOPED IN TYPING $0.0054 AS $0.0540 SINCE THE OTHER TWO BID PRICE INCREASES WERE IN THE AMOUNTS OF $0.0034 AND $0.0017. CF. 41 COMP. GEN. 165.

SINCE ANY ERROR THAT MAY HAVE BEEN MADE WAS UNILATERAL AND MR. SIEGEL CONFIRMED HIS BID, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. SEE 36 COMP. GEN. 27.

ACCORDINGLY, IT MUST BE CONCLUDED THAT MR. SIEGEL IS NOT ENTITLED TO RELIEF FROM HIS OBLIGATION UNDER THE CONTRACT.