B-152353, NOV. 7, 1963

B-152353, NOV. 7, 1963

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 21, 1963, WITH ENCLOSURES, FROM THE ASSISTANT DIRECTOR OF PROCUREMENT, OFFICE OF ASSISTANT SECRETARY, REQUESTING OUR DECISION IN REGARD TO PROTESTS RECEIVED BY THE DEPARTMENT OF THE ARMY FROM THE MIDWEST SPRAY AND COATING COMPANY, INC., LOUISVILLE, KENTUCKY, UNDER INVITATIONS NOS. AII 15-014-63-111 AND AII-15-014-63-141. REFERENCE ALSO IS MADE TO A LETTER DATED AUGUST 30, 1963, WITH ENCLOSURES, FROM THE ASSISTANT DIRECTOR OF PROCUREMENT, REQUESTING OUR DECISION WITH RESPECT TO PROTEST OF KIRCHDORFER AND HOWELL, INC., LOUISVILLE, KENTUCKY, AGAINST AWARDS OF CONTRACTS MADE TO THE MIDWEST SPRAY AND COATING COMPANY, INC., UNDER INVITATIONS NOS. AII-15-014-63-105 AND AII-15-014-63-131.

INVITATION NO. AII-15-014-63-111, WHICH WAS ISSUED ON JUNE 5, 1963, BY THE CENTRAL PURCHASING AND CONTRACTING DIVISION, FORT KNOX, KENTUCKY, SOLICITED BIDS FOR THE EXTERIOR PAINTING OF FAMILY QUARTERS AT FORT KNOX AS SET FORTH UNDER ITEMS NOS. 1 (A), 1 (B), 2, 3 AND 4 OF THE INVITATION. IT APPEARS FROM THE ABSTRACT OF BIDS THAT FOUR BIDS WERE RECEIVED FOR ITEM NO. 3. THESE BIDS WERE IN THE AMOUNT OF $81,227, $89,400, $111,500 AND $126,900. AN AWARD OF CONTRACT WAS MADE BY THE DEPARTMENT OF THE ARMY TO KIRCHDORFER AND HOWELL, INC., ON THE BASIS OF ITS LOW BID OF $81,227 FOR THIS ITEM. SUCH AWARD ACTION PROMPTED THE PROTEST FROM MIDWEST IN THE CASE WHICH, IT IS NOTED, RECEIVED AN AWARD OF CONTRACT FOR ITEM NO. 1 (B) UNDER THE INVITATION IN THE AMOUNT OF $15,850.75.

IN ITS PROTEST MIDWEST, WHOSE BASIC BID FOR ITEM NO. 3 WAS IN THE ORIGINAL AMOUNT OF $89,400, TAKES THE POSITION THAT A PROPER INTERPRETATION OF A TELEGRAPHIC MODIFICATION OF ITS BID UNDER THE INVITATION WOULD HAVE RESULTED IN SUCH BID BECOMING THE LOWEST BID RECEIVED FOR THE ITEM. MIDWEST CONTENDS THAT ITS MODIFICATION SET FORTH MULTIPLE DEDUCTIONS, IN THAT IT CLEARLY INTENDED A 5 PERCENT DEDUCTION FROM, AMONG OTHERS, ITS BASE BID OF $89,400 FOR ITEM NO. 3 AND AN ADDITIONAL DEDUCTION OF 5 PERCENT OF ITS TOTAL ADJUSTED BASE BID OF $158,236.75 FOR ALL ITEMS. THE CORPORATION STATES THAT SUCH DEDUCTIONS, TOGETHER WITH A BREAKDOWN OF THE TOTAL ADJUSTED BID INTO DEDUCTIBLE ADJUSTED TOTALS FOR EACH ITEM, WOULD RESULT IN A LOW BID OF $80,683.50 FOR ITEM NO. 3.

THE TELEGRAPHIC MODIFICATION OF MIDWEST'S BID READS AS FOLLOWS:

"RE: INVITATION TO BID NO. AII-15-014-63-111 BE DIRECTED TO DEDUCT 5-0/0 FROM UNITS AND TOTAL IF CONTRACT AWARDED IN ITS ENTIRETY. MIDWEST SPRAY AND COATING CO R. DEAN MILLER"

THE LANGUAGE USED IN THIS MODIFICATION COULD BE CONSTRUED, AMONG OTHER WAYS, TO MEAN THAT EITHER THE 5 PERCENT DEDUCTION OR MULTIPLE DEDUCTIONS WERE TO APPLY IF ALL FIVE ITEMS WERE AWARDED TO MIDWEST OR THAT EITHER OR BOTH OF SUCH DEDUCTIONS WERE APPLICABLE ONLY IN THE EVENT THAT EACH ITEM WAS AWARDED IN ITS ENTIRETY, THAT IS, IF NO BUILDINGS WERE DELETED WITHIN THE RESPECTIVE ITEMS, AS THE GOVERNMENT HAD RESERVED THE RIGHT TO DO. CERTAINLY, THE TELEGRAPHIC MODIFICATION IS NOT CLEAR THAT IT WAS INTENDED THAT AN ADDITIONAL 5 PERCENT WAS TO BE DEDUCTED ON THE TOTAL AMOUNT BID AND PRORATED ON AN INDIVIDUAL ITEM BASIS IN ADDITION TO THE 5 PERCENT DEDUCTION AUTHORIZED FROM EACH OF THE INDIVIDUAL ITEMS. THUS, THERE CAN BE NO DOUBT THAT THE SAID MODIFICATION WAS AMBIGUOUS. THIS BEING THE CASE, WE BELIEVE THAT THE CONTRACTING OFFICER PROPERLY REFUSED TO ACCEPT MIDWEST'S INTERPRETATION OF THE MODIFICATION, PARTICULARLY SINCE IT APPEARS THAT ON THE BASIS OF THE BIDS RECEIVED FOR ITEM NO. 3, SUCH AN INTERPRETATION WOULD HAVE RESULTED IN MIDWEST'S BID DISPLACING THE LOW BID RECEIVED FOR THIS ITEM. TO ACCEPT A BIDDER'S INTERPRETATION OF SUCH A PARTIALLY AMBIGUOUS BID, WHICH INTERPRETATION MIGHT ONLY BE ADVANCED BY THE BIDDER WHERE IT IS IN ITS INTEREST TO DO SO WOULD, OF COURSE, BE DETRIMENTAL TO THE VERY PURPOSE OF THE COMPETITIVE BIDDING SYSTEM.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN MAKING THE AWARD FOR ITEM NO. 3 TO KIRCHDORFER AND HOWELL, INC.

INVITATION NO. AII-15-014-63-141 WAS ISSUED ON JUNE 11, 1963, BY THE CENTRAL PURCHASING AND CONTRACTING DIVISION, FORT KNOX, KENTUCKY, SOLICITING BIDS FOR THE INTERIOR PAINTING OF APPROXIMATELY 482 MISCELLANEOUS BUILDINGS AT THE FORT, AS SET FORTH UNDER ITEMS NOS. 1 THRU 10 OF THE INVITATION. IT APPEARS FROM THE ABSTRACT OF BIDS THAT FIVE BIDS WERE RECEIVED FOR THE WORK TO BE PERFORMED UNDER THE INVITATION INCLUDING A BID FROM THE MIDWEST SPRAY AND COATING COMPANY, NC., WHICH WAS MODIFIED BY A TELEGRAM THAT APPARENTLY WAS TIMELY RECEIVED. IT APPEARS FURTHER THAT UPON THE EVALUATION OF THE BIDS RECEIVED, INCLUDING THE BID OF MIDWEST, AS MODIFIED, AWARDS OF CONTRACTS AS TO THE FOLLOWING ITEMS IN QUESTION WERE MADE TO MIDWEST FOR ITEM NO. 1 IN THE AMOUNT OF $24,411.20, TO KIRCHDORFER AND HOWELL, INC., FOR ITEMS NOS. 2, 9 AND 10 IN THE RESPECTIVE AMOUNTS OF $23,660, $13,832, AND $20,020 AND TO THE R. L. RAINEY COMPANY, ELIZABETHTOWN, KENTUCKY, FOR ITEM NO. 3 IN THE AMOUNT OF $11,014. THE AWARDS MADE ON ITEMS NOS. 2, 3, 9 AND 10 PROMPTED THE PROTEST FROM MIDWEST.

MIDWEST CONTENDS THAT A PROPER INTERPRETATION OF THE TELEGRAPHIC MODIFICATION OF ITS BID IS THAT THE 10 PERCENT WAS TO BE ADDED TO ITEM NO. 1 OF ITS BID ONLY IF ITEM NO. 1 WAS THE ONLY ITEM AWARDED AND THAT IF ADDITIONAL ITEMS WERE AWARDED, THE AMOUNT BID WOULD REVERT TO THE ORIGINAL AMOUNT OF $22,192, FOR ITEM NO. 1. THE CORPORATION STATES THAT THIS, TOGETHER WITH A CORRECT INTERPRETATION OF THE MODIFICATION OF ITS BID REGARDING THE VARIOUS COMBINATIONS OF ITEMS, WOULD HAVE RESULTED IN IT BEING THE LOW BIDDER ON ALL FIVE ITEMS NOS. 1, 2, 3, 9 AND 10 AND THE CONTRACTING OFFICER'S REPORT APPEARS TO CONFIRM SUCH A RESULT IF THE CORPORATION'S INTERPRETATION OF ITS TELEGRAPHIC MODIFICATION HAD BEEN ACCEPTED. MIDWEST TAKES THE POSITION THAT UNDER THE LAWS AND REGULATIONS REGARDING THE CONSTRUCTION OF GOVERNMENT CONTRACTS, THE INTERPRETATION WHICH WOULD BE THE MOST ADVANTAGEOUS TO THE GOVERNMENT IS THE ONE PROPERLY FOR APPLICATION.

THE TELEGRAPHIC MODIFICATION OF MIDWEST'S BID UNDER THE SUBJECT INVITATION READS AS FOLLOWS:

"RE IFB A11-15-014-63-141 BE DIRECTED TO ADD TO BID ITEM 1 THE SUM OF TEN PERCENT IF AWARDED BID ITEM 1, 2 AND 3 BE DIRECTED TO DEDUCT 3 PERCENT FROM THE LUMP SUM TOTAL EACH BID ITEM. BE DIRECTED TO ADD TO BID ITEM 4 THE SUM OF 28 PERCENT. BE DIRECTED TO ADD 29 1/2 PERCENT TO THE TOTAL BID ITEM 5 BE DIRECTED TO ADD 8 PERCENT TO THE TOTAL OF SAID ITEM 6. DIRECTED TO ADD 8 PERCENT TO THE TOTAL OF BID ITEM 8 IF AWARDED BID ITEM 1, 2, 3, 9 AND 10 DEDUCT 3 PERCENT FROM COMPOUND TOTAL IF AWARDED ENTIRE PROJECT DEDUCT FROM PYRAMIDED COMPOUNDED COMPUTATION THE SUM OF 3 PERCENT MIDWEST SPRAY COATING CO ROBERT WHITEHOUSE"

HERE AGAIN WE BELIEVE THAT THE LANGUAGE OF THE TELEGRAPHIC MODIFICATION OF MIDWEST'S BID IS SUSCEPTIBLE OF MORE THAN ONE MEANING. WE ALSO BELIEVE, HOWEVER, THAT THE CONTRACTING OFFICER'S INTERPRETATION THAT THE MIDWEST BID WAS INCREASED ON, AMONG OTHERS, ITEM NO. 1 BY 10 PERCENT WITHOUT QUALIFICATION WAS A REASONABLE INTERPRETATION OF THE BID, AS MODIFIED. TO COMPLETELY ACCEPT THE EXPLANATION OF A BIDDER'S INTENTION OR OF ITS OWN INTERPRETATION OF THE MEANING OF SUCH A MODIFICATION AFTER ALL BIDS HAVE BEEN OPENED AND THE AMOUNTS PUBLICLY KNOWN WOULD PLACE SUCH A BIDDER IN THE POSITION OF BEING ABLE TO ADVANCE THE INTERPRETATION BEST SUITED TO ITS OWN INTERESTS AT THAT TIME AND IN MANY INSTANCES, SUCH AS HERE, WOULD RESULT IN THE DISPLACEMENT OF AN OTHERWISE LOW BIDDER. OBVIOUSLY SUCH A PROCEDURE AGAIN WOULD NOT BE IN KEEPING WITH THE OVER-ALL PURPOSE OF THE COMPETITIVE BIDDING STATUTES.

IN VIEW OF THIS, AND SINCE THE CONTRACTING OFFICER'S INTERPRETATION OF THE TELEGRAPHIC MODIFICATION OF THE BID APPEARS TO HAVE BEEN REASONABLE, AND SINCE THE AWARD THAT HAS BEEN MADE WAS BASED ON SUCH AN INTERPRETATION, WE WILL NOT OBJECT TO THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN MAKING THE AWARDS UNDER INVITATION NO. AII 15-014-63-141.

INVITATION NO. AII-15-014-63-105 WAS ISSUED ON JUNE 5, 1963, ALSO SOLICITING BIDS FOR THE EXTERIOR PAINTING OF FOUR ITEMS OF CERTAIN SPECIFIED FAMILY QUARTERS AT FORT KNOX, KENTUCKY. IN RESPONSE THERETO, TWO BIDS WERE RECEIVED, ONE IN THE AMOUNT OF $99,856 FROM KIRCHDORFER AND HOWELL, INC., AND THE OTHER IN THE GROSS AMOUNT OF $108,990 FROM MIDWEST SPRAY AND COATING COMPANY, INC. THE LATTER CORPORATION AGAIN SUBMITTED A TELEGRAPHIC MODIFICATION OF ITS BID READING AS FOLLOWS:

"REFERENCE IFB-A2-15-014-63-105: BE DIRECTED TO DEDUCT TEN PERCENT FROM BID ITEM THREE AND TEN PERCENT FROM BID ITEM FOUR AND 7 1/2 PERCENT FROM TOTAL IF AWARDED THE TOTAL CONTRACT. IRVIN H. WHITEHOUSE AND SONS"

SUBSEQUENTLY, AN AWARD OF CONTRACT WAS MADE TO MIDWEST ON THE BASIS OF ITS BID, AS MODIFIED, IN THE NET AMOUNT OF $95,023.40. THIS ACTION RESULTED IN THE PROTEST FROM KIRCHDORFER AND HOWELL, INC.

KIRCHDORFER CONTENDS THAT MIDWEST'S TELEGRAPHIC MODIFICATION OF ITS BID, WHICH RESULTED IN IT BECOMING THE LOWEST BID RECEIVED, WAS DELIVERED SOME TIME AFTER THE BIDS WERE OPENED, THAT THE SAID TELEGRAM WAS SENT IN THE NAME OF IRVIN H. WHITEHOUSE AND SONS, WHO WAS NOT A BIDDER UNDER THE INVITATION, AND THAT THE TELEGRAM, AS AMENDED, WAS VAGUE, UNCERTAIN AND INDEFINITE. IT IS REPORTED THAT MR. KIRCHDORFER INDICATED THAT HE WOULD NOT HAVE MADE THE PROTEST HAD NOT MIDWEST PROTESTED THE AWARDS TO HIS FIRM UNDER THE FOREGOING INVITATIONS NO. AII-15-014-63-111 AND AII-15-014-63- 141.

BIDS WERE OPENED UNDER INVITATION NO. AII-15-014-63-105 AT 10:30 A.M. ON JUNE 26, 1963. THE TELEGRAPHIC MODIFICATION OF THE BID WAS SENT BY IRVIN H. WHITEHOUSE AND SONS TO THE CENTRAL PURCHASING AND CONTRACTING DIVISION. MOREOVER, THERE FOLLOWED A TELEGRAPHIC CORRECTION OF THE NAME OF THE SENDER OF THE MODIFICATION TO THE MIDWEST SPRAY AND COATING COMPANY, INC. BOTH TELEGRAMS WERE RECEIVED AT FORT KNOX BUT HAD NOT BEEN DELIVERED TO THE CONTRACTING OFFICER AT THE TIME OF THE OPENING OF BIDS. INQUIRY OF THE LOUISVILLE WESTERN UNION OFFICE REVEALED THAT THE FIRST TELEGRAM WAS FILED IN LOUISVILLE, KENTUCKY, AT 10:15 A.M. AND DISPATCHED AT 10:17 FROM LOUISVILLE TO CINCINNATI AND THEN TO FORT KNOX, WHICH IS STANDARD PRACTICE. UPON FURTHER INQUIRY, IT WAS LEARNED THAT THE DELAY IN DELIVERY OF THE TELEGRAPHIC MODIFICATION WAS DUE TO A SHORTAGE OF PERSONNEL, TO A MIX UP IN REGARD TO THE NAME OF THE SENDER AND THE ACCOUNT TO BE CHARGED, AND TO A TEMPORARY OVERLOAD OF THE FACILITIES OF WESTERN UNION DUE TO A JAYCEE NATIONAL CONVENTION IN LOUISVILLE AT THAT TIME. THE WESTERN UNION MANAGER EXPLAINED THAT THE TELEGRAM WAS GIVEN TO IT IN PLENTY OF TIME FOR NORMAL TRANSMISSION AND TELEPHONE DELIVERY TO THE FORT KNOX CONTRACTING OFFICE PRIOR TO 10:30 A.M. THE BID OPENING TIME. ADDITION, THE CONTRACTING OFFICER WAS ASSURED BY BOTH THE FORT KNOX MANAGER AND THE LOUISVILLE MANAGER OF THE WESTERN UNION TELEGRAPH COMPANY THAT A TELEGRAM FILED WITH THE LOUISVILLE TELEGRAPH OFFICE BY 10:15 A.M. SHOULD, UNDER NORMAL CIRCUMSTANCES, HAVE BEEN DELIVERED TO DESTINATION BY 10:30 A.M. ON THE SAME DAY AND THAT THE FAILURE OF THE MODIFICATION HERE AT ISSUE TO REACH THE CONTRACTING OFFICER BY 10:30 A.M. WAS NOT THE FAULT OF THE SENDER. FURTHER, THE DEPARTMENT OF THE ARMY REPORTS THAT TELEGRAPHIC MESSAGES TELEPHONED TO THE CONTRACTING OFFICE FROM THE FORT KNOX WESTERN UNION BRANCH HAVE BEEN RECEIVED IN LESS THAN FIVE MINUTES FROM THE TIME THEY WERE DISPATCHED FROM LOUISVILLE.

NOTWITHSTANDING THAT THE FOREGOING FACTS MIGHT, UPON FIRST OBSERVATION, SEEM TO CONTAIN SOME ELEMENTS OF EXCUSABLE DELAY IN THE DELIVERY OF THE TELEGRAPHIC MODIFICATION, IT APPEARS THAT THE FACTS ARE FOR CLOSER SCRUTINY UNDER THE FOLLOWING PROVISIONS OF 2-303.4 OF THE ARMED SERVICES PROCUREMENT REGULATION:

"TELEGRAPHIC BIDS. 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 (SEE 2-302).'

THE FOREGOING PROVISIONS ARE EQUALLY APPLICABLE TO TELEGRAPHIC MODIFICATIONS OF BIDS AND, IN THIS REGARD, WE FIND NO CLEAR AND CONVINCING EVIDENCE, INCLUDING SUBSTANTIATION BY THE TELEGRAPH COMPANY, THAT THE SUBJECT MODIFICATION WAS FILED WITH WESTERN UNION IN SUFFICIENT TIME TO HAVE BEEN TIMELY DELIVERED. IN FACT, THE ONLY EVIDENCE OF RECORD BEFORE US APPEARS TO BE A COPY OF A LETTER DATED JUNE 27, 1963, FROM THE TELEGRAPH COMPANY STATING THAT CONSIDERING THE SPECIAL HANDLING GIVEN TO THE SUBJECT MODIFICATION--- RECEIVED BY IT AT 10:15 A.M. AND SENT FROM LOUISVILLE AT 10:17 A.M.--- IT NORMALLY WOULD HAVE BEEN RECEIVED AT DESTINATION AND TELEPHONICALLY DELIVERED BY 10:30 A.M. A MERE REFERENCE BY THE TELEGRAPH COMPANY TO A SINGLE TELEGRAM, SUCH AS THIS, WHICH IT IS NOTED HAS BEEN REFERRED TO AS EVEN HAVING BEEN HANDLED SPECIAL, MAY NOT BE ACCEPTED AS A SUBSTANTIATION THAT SUCH A MESSAGE WAS RECEIVED BY THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO AVOID LATE DELIVERY WITHIN THE MEANING OF THE FOREGOING PROVISIONS OF 2-303.4 OF THE ARMED SERVICES PROCUREMENT REGULATION. MOREOVER, THERE IS NOTED THE STATEMENT IN THE RECORD BY THE CONTRACTING OFFICER THAT IT IS NOT UNUSUAL FOR ROUTINE TELEGRAPHIC MESSAGES, FROM LOUISVILLE TO FORT KNOX TO REQUIRE 24 HOURS FOR DELIVERY TO THE CONTRACTING OFFICER. IN ANY EVENT, WE DO NOT BELIEVE THE RECORD BEFORE US ESTABLISHES THAT UNDER NORMAL CIRCUMSTANCES THE 15-MINUTE PERIOD ALLOWED BY MIDWEST FOR TRANSMISSION OF THE MODIFICATION MAY BE CONSIDERED TO HAVE BEEN AMPLE TIME FOR A TIMELY DELIVERY OF THE MESSAGE TO FORT KNOX.

REGARDING THE NAME OF THE SENDER UNDER WHICH THE TELEGRAPHIC MODIFICATIONS WERE TRANSMITTED, THE RECORDS OF THE DEPARTMENT OF THE ARMY SHOW THAT WHILE IRVIN H. WHITEHOUSE AND SONS AND THE MIDWEST SPRAY AND COATING COMPANY, INC., USE THE SAME ADDRESS AND THAT WHILE SOME OFFICERS OF THE ONE FIRM ARE OFFICERS IN THE OTHER, THE RECORD ALSO CLEARLY SHOWS THAT EACH FIRM IS INCORPORATED IN ITS OWN NAME AND THAT THERE WAS NO PROOF AVAILABLE TO THE CONTRACTING OFFICER THAT ONE FIRM IS OWNED OR CONTROLLED BY THE OTHER. MOREOVER, IT IS NOTED THAT MIDWEST COMPLETED THE APPLICABLE PAGE ON THE BID FORM SHOWING THAT IT WAS NOT CONTROLLED BY A PARENT COMPANY.

IN VIEW OF THE FOREGOING WE THINK THAT THE TELEGRAPHIC MODIFICATIONS SHOULD NOT HAVE BEEN CONSIDERED. HOWEVER, SINCE THE CONTRACT HAS BEEN AWARDED; ALSO, SINCE IT IS OBVIOUS FROM THE TIME OF THE FILING OF MIDWEST'S TELEGRAPHIC MODIFICATION THAT NO ADVANTAGE COULD HAVE BEEN GAINED BY THE CORPORATION BY ANY KNOWLEDGE OF THE OTHER BIDS RECEIVED, AND SINCE THE TELEGRAPHIC MODIFICATION IS COMPLETELY CLEAR AS TO THE AMOUNT OF DEDUCTIONS INTENDED, WE WILL NOT OBJECT TO THE AWARD TO MIDWEST UNDER INVITATION NO. AII-15-014-63-105 IN THIS PARTICULAR INSTANCE.

INVITATION NO. AII-15-014-63-131, WHICH WAS ISSUED ON JUNE 11, 1963, ALSO BY FORT KNOX CENTRAL PURCHASING AND CONTRACTING DIVISION SOLICITED BIDS FOR THE EXTERIOR PAINTING OF MISCELLANEOUS BUILDINGS AT FORT KNOX AS COVERED BY ITEMS NOS. 1 THRU 7 OF THE INVITATION. TWO BIDS WERE RECEIVED, ONE FROM KIRCHDORFER AND HOWELL, INC., IN THE TOTAL AMOUNT OF $171,901, AND THE OTHER FROM MIDWEST SPRAY AND COATING COMPANY, INC., IN THE ORIGINAL AMOUNT OF $158,652. THE FOLLOWING TELEGRAPHIC MODIFICATIONS OF MIDWEST'S BID WAS RECEIVED:

"RE IFB AII-15-014-63-131 CONFIRMING LOUISVILLE TELEGRAM BE DIRECTED TO ADD 10 PERCENT TO ALL COMPUTATION PER TELEGRAM.'

THIS MODIFICATION RESULTED IN AN INCREASE IN THE AMOUNT OF EACH OF THE SEVEN ITEMS OF THE CORPORATION'S BID AND REFLECTED A REVISED TOTAL BID PRICE OF $174,517.20. THE SUBSEQUENT EVALUATION OF THE BIDS BY THE PURCHASING AND CONTRACTING DIVISION UNDER THE RIGHT RESERVED BY THE GOVERNMENT TO MAKE AN AWARD EITHER ON A LUMP-SUM OR INDIVIDUAL-ITEM BASIS, RESULTED IN AWARDS BEING MADE TO KIRCHDORFER AS THE LOW BIDDER ON ITEMS NOS. 1, 4, AND 7 IN THE TOTAL AMOUNT OF $66,839 AND TO MIDWEST ON THE BASIS OF ITS LOW BID FOR ITEMS NOS. 2, 3, 5 AND 6 IN THE TOTAL AMOUNT OF $98,147.50.

THE FOREGOING AWARD ACTION PROMPTED THE PROTEST FROM KIRCHDORFER AND IT APPEARS FROM THE CORPORATION'S LETTER OF JULY 30, 1963, THAT FOR THE MOST PART THE PRIME BASIS FOR ITS PROTEST IS SIMILAR TO THE REASONS ADVANCED BY THE CORPORATION AS THE BASIS FOR ITS PROTEST UNDER THE FOREGOING INVITATION NO. AII-15-014-63-105.

WITH RESPECT TO THE TIMELINESS OF THE RECEIPT OF THE TELEGRAPHIC MODIFICATION UNDER INVITATION NO. AII-15-014-63-131, IT IS REPORTED THAT AT 10:26 A.M. ON JUNE 27, 1963, THE CENTRAL PURCHASING AND CONTRACTING DIVISION RECEIVED, BY TELEPHONE, THE TELEGRAPHIC MESSAGE OF THE MIDWEST MODIFICATION FROM THE FORT KNOX WESTERN UNION OFFICE. IT IS REPORTED FURTHER THAT THE SAID MODIFICATION TOGETHER WITH THE BID PRICES OF MIDWEST, WAS READ AT THE BID OPENING WHICH WAS ATTENDED BY A REPRESENTATIVE OF KIRCHDORFER. THUS, THE RECORD SHOWS THAT ALL INFORMATION PERTAINING TO THE MODIFICATION OF THE BID WAS RECEIVED IN THE CONTRACTING OFFICE SEVERAL MINUTES PRIOR TO 10:30 A.M. ON JUNE 27, 1963, THE SCHEDULED TIME FOR THE OPENING OF BIDS. MOREOVER, AS HERETOFORE STATED, THE PROVISONS OF PARAGRAPH 2-304 OF THE ARMED SERVICES PROCUREMENT REGULATION, EXPRESSLY AUTHORIZE CONSIDERATION OF THE TIMELY TELEPHONIC TRANSMISSION TO DESTINATION OF TELEGRAPHIC MODIFICATIONS OF BIDS AND THE FACT THAT A CONFIRMATION OF SUCH MODIFICATION, AS IN THIS CASE, IS NOT RECEIVED UNTIL A SUBSEQUENT HOUR IS NOT MATERIAL.

IN VIEW OF THE FOREGOING, AND SINCE THE TELEGRAPHIC MODIFICATION WAS COMPLETELY CLEAR AS TO THE INTENDED REVISED AMOUNTS OF THE BID, WE FIND NO LEGAL OBJECTION TO THE AWARD MADE TO MIDWEST UNDER THE SUBJECT INVITATION.