B-153731, DEC. 18, 1964

B-153731, DEC. 18, 1964

TO MR. SAMUEL PANZER, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 18, 1964, AND SUBSEQUENT CORRESPONDENCE, REQUESTING THAT WE RECONSIDER OUR DECISION OF MAY 12, 1964, AFFIRMED BY OUR DECISION OF AUGUST 31, 1964, WHICH DENIED THE CLAIM OF A. A. SALERNO OF NEW ROCHELLE, NEW YORK, FOR AN INCREASE IN THE PRICE FOR WORK PERFORMED UNDER CONTRACT NO. DA-30-075 ENG-11051 AWARDED UNDER INVITATION FOR BIDS NO. ENG-30-075-63-123, DATED MAY 16, 1963, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, NEW YORK, NEW YORK.

THE RECORD SHOWS THAT UPON OPENING OF BIDS IN NEW YORK CITY AT 3:00 P.M., EASTERN DAYLIGHT SAVINGS TIME, JUNE 13, 1963, AS SCHEDULED. SALERNO'S BID OF $723,850 FOR EIGHT BASIC ITEMS, PLUS $68,620 FOR SEVEN ADDITIVE ITEMS, TOTAL $792,470, WAS LOW. AT 3:42 P.M., EDST, THE SAME DAY, THE PROCUREMENT OFFICE RECEIVED A TELEGRAM FROM SALERNO, FILED AT 1:44 P.M., EDST, JUNE 13, WITH THE WESTERN UNION OFFICE IN NEW ROCHELLE, REDUCING HIS BASE BID PRICE BY $56,000 TO $667,850.

PURSUANT TO SECTIONS 2-303 AND 2-304 OF THE ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS INCLUDED IN THE INVITATION NOTIFIED BIDDERS THAT LATE BIDS AND MODIFICATIONS OR WITHDRAWALS WOULD NOT BE CONSIDERED UNLESS RECEIVED BEFORE AWARD AND, IN THE CASE OF TELEGRAPHIC BIDS OR MODIFICATIONS, ONLY IF THE LATE RECEIPT WAS DUE SOLELY TO DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR MISHANDLING BY THE GOVERNMENT AFTER RECEIPT, AT THE GOVERNMENT INSTALLATION. HOWEVER, IN ACCORDANCE WITH ASPR 2-305, A MODIFICATION RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER MAKING THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT COULD BE CONSIDERED AND ACCEPTED REGARDLESS OF THE TIME OF RECEIPT. UNDER THAT PROVISION, THEREFORE, THE TELEGRAPHIC MODIFICATION RECEIVED 42 MINUTES AFTER BID OPENING, WHICH REDUCED THE ALREADY LOW BASIC BID PRICE, WAS ACCEPTABLE.

SUBSEQUENT TO BID OPENING, AT A TIME NOT OF RECORD, SALERNO VERBALLY ADVISED THE PROCUREMENT OFFICE THAT AT 2:44 P.M. ON JUNE 13 HE HAD REQUESTED THE TELEGRAPH OFFICE IN NEW ROCHELLE TO CANCEL THE 1:44 P.M. TELEGRAM. BY LETTER OF JUNE 18, CONFIRMING THIS STATEMENT, SALERNO FURNISHED A TELEGRAPHIC MESSAGE ADDRESSED TO HIM ON JUNE 14 BY THE NEW ROCHELLE WESTERN UNION OFFICE VERIFYING THAT SALERNO HAD MADE SUCH A REQUEST FOR CANCELLATION OF THE 1:44 P.M. TELEGRAM.

AT NO TIME BEFORE AWARD ON JUNE 28 WAS THERE RECEIVED IN THE PROCUREMENT OFFICE ANY TELEGRAPHIC MESSAGE OR COPY THEREOF FROM SALERNO EITHER INCREASING HIS BID PRICE OR REQUESTING THAT HIS 1:44 P.M. TELEGRAM BE DISREGARDED. THERE WERE RECEIVED COPIES OF CORRESPONDENCE AND TELEGRAMS EXCHANGED BETWEEN SALERNO AND WESTERN UNION, AS WELL AS AFFIDAVITS FROM WESTERN UNION EMPLOYEES, WHICH ESTABLISHED THAT WESTERN UNION HAD FAILED TO COMPLY WITH SALERNO'S INSTRUCTIONS IN TIME TO EFFECT EITHER WITHDRAWAL OR CANCELLATION OF THE 1:44 P.M. TELEGRAM BEFORE ITS RECEIPT IN THE PROCUREMENT OFFICE AT 3:42 P.M. ON JUNE 13.

IN OUR DECISION OF MAY 12, 1964, YOU WERE ADVISED THAT ARMED SERVICES PROCUREMENT REGULATION 2-304, WHICH GOVERNS THE CONSIDERATION OF BID MODIFICATIONS, CONTEMPLATES THAT SUCH MODIFICATIONS BE IN WRITTEN OR TELEGRAPHIC FORM, AND, THEREFOR,THE 1:44 P.M. TELEGRAPHIC MESSAGE REDUCING SALERNO'S BID PRICE CAME WITHIN THE PURVIEW OF ASPR 2-304. YOU WERE FURTHER ADVISED THAT SINCE SALERNO, IN HIS ATTEMPTS TO CANCEL THE 1:44 P.M. TELEGRAM, DID NOT TRANSMIT TO THE PROCUREMENT OFFICE A TIMELY COMMUNICATION, EITHER WRITTEN OR TELEGRAPHIC, ADVISING THAT THE 1:44 P.M. TELEGRAM SHOULD BE DISREGARDED, THERE WAS NO SECOND BID MODIFICATION WITHIN THE CONTEMPLATION OF ASPR 2-304. RATHER, THERE WAS AN UNSUCCESSFUL ATTEMPTED WITHDRAWAL OF THE 1:44 P.M. TELEGRAM VIA THE AGENCY OF THE WESTERN UNION TELEGRAPH COMPANY.

IN OUR DECISION OF AUGUST 31, 1964, THE MATTER WAS RECONSIDERED AT YOUR REQUEST, SPECIFICALLY FROM THE STANDPOINT OF WHETHER THE ATTEMPTED WITHDRAWAL COULD BE CONSIDERED A TIMELY TELEPHONED TELEGRAPHIC MESSAGE UNDER ASPR 2-304 (A) IN VIEW OF THE STATEMENTS OF WESTERN UNION EMPLOYEES AT NEW ROCHELLE THAT SALERNO HAD INSTRUCTED THEM BY TELEPHONE IF NECESSARY AND THAT SUCH A TELEPHONED MESSAGE COULD HAVE BEEN RECEIVED IN THE PROCUREMENT OFFICE IN NEW YORK CITY BEFORE BID OPENING AT 3:00 P.M., ON JUNE 13, HAD YOUR INSTRUCTIONS BEEN FOLLOWED. WE CALLED YOU ATTENTION TO THE REQUIREMENT IN ASPR 2 304 (A) FOR THE RECEIPT OF TIMELY TELEPHONED TELEGRAPHIC MESSAGE FROM THE RECEIVING TELEGRAPH OFFICE CONFIRMED BY A WRITTEN TELEGRAM. WE POINTED OUT THAT NOT ONLY WAS THERE NO MESSAGE TELEPHONED FROM THE RECEIVING TELEGRAPH OFFICE IN NEW YORK CITY, FROM WHICH THE MESSAGE WOULD HAVE BEEN TELEPHONED UNDER NORMAL PROCEDURES AFTER FIRST BEING TRANSMITTED TO NEW YORK CITY BY WIRE FROM NEW ROCHELLE, BUT THERE WAS NEVER ANY CONFIRMATORY TELEGRAM. ACCORDINGLY, OUR DECISION OF MAY 12, WAS AFFIRMED.

IN YOUR CURRENT REQUEST FOR RECONSIDERATION OF OUR MAY 12 DECISION, YOU CONTEND THAT THE TELEGRAM OF JUNE 14, 1963, FROM THE WESTERN UNION NEW ROCHELLEE OFFICE TO SALERNO EVIDENCING THE FACT THAT SALERNO HAD REQUESTED CANCELLATION AT 2:44 P.M. OF THE BID MODIFICATION SENT ONE HOUR EARLIER ON JUNE 13, SHOULD BE REGARDED AS COMPLIANCE WITH ASPR 2 304 (A) SO AS TO WARRANT ITS CONSIDERATION AS A TIMELY TELEPHONED TELEGRAPHIC BID MODIFICATION, THUS REINSTATING SALERNO'S BID IN THE ORIGINAL AMOUNT.

THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS OF BIDS SHOULD BE RECEIVED PRIOR TO THE TIME FOR BID OPENING. IN THOSE CASES IN WHICH EXCEPTIONS HAVE BEEN PERMITTED UNDER THE APPLICABLE PROCUREMENT REGULATIONS, BIDDERS HAVE BEEN HELD RESPONSIBLE FOR FULL COMPLIANCE WITH THE PROVISIONS OF THE REGULATIONS.

ASPR 2-304 (A) UNDER WHICH YOU WOULD HAVE THE ATTEMPTED SECOND BID MODIFICATION CONSIDERED, READS AS FOLLOWS:

"2-304 MODIFICATION OR WITHDRAWAL OF BIDS.

"/A) BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED PRIOR TO THE EXACT TIME SET FOR OPENING OF BIDS. A TELEGRAPHIC MODIFICATION OR WITHDRAWAL OF A BID RECEIVED BY TELEPHONE FROM THE RECEIVING TELEGRAPH OFFICE PRIOR TO THE TIME FIXED FOR OPENING OF BIDS SHALL BE CONSIDERED IF SUCH MESSAGE IS CONFIRMED BY THE TELEGRAPH COMPANY WITH A WRITTEN TELEGRAM. MODIFICATIONS RECEIVED BY TELEGRAM SHALL BE SEALED IN AN ENVELOPE AND NO INFORMATION CONTAINED THEREIN SHALL BE DISCLOSED PRIOR TO THE TIME SET FOR BID OPENING.'

THE LANGUAGE OF THAT REGULATION REQUIRES (1) THAT THE TELEPHONIC MESSAGE BE RECEIVED BY THE BID OPENING OFFICE PRIOR TO THE TIME FIXED IN THE INVITATION FOR BID OPENING; (2) THAT SUCH TELEPHONIC MESSAGE BE TRANSMITTED FROM THE RECEIVING TELEGRAPH OFFICE; AND (3) THAT A WRITTEN TELEGRAM CONFIRMING THE MESSAGE BE FURNISHED. FROM THE RECORD, IT IS CLEAR THAT NOT ONLY WAS NO TIMELY TELEPHONIC MESSAGE RECEIVED IN THE PROCUREMENT OFFICE, BUT NEITHER OF THE OTHER TWO REQUIREMENTS OF THE REGULATION HAS BEEN MET. IN FACT, WE FIND NOTHING IN THE RECORD TO SHOW THAT ANY TELEGRAM FROM SALERNO TO THE PROCUREMENT OFFICE WITHDRAWING OR COUNTERMANDING THE 1:44 P.M. TELEGRAM WAS EVER FILED WITH THE TELEGRAPH COMPANY BY SALERNO, NOR HAVE WE BEEN FURNISHED WITH ANY INFORMATION THAT THE TELEPHONED INSTRUCTIONS FROM SALERNO'S SECRETARY TO THE TELEGRAPH OFFICE COULD HAVE BEEN GIVEN ANY EFFECT BY WESTERN UNION EXCEPT TO STOP DELIVERY OF THE ORIGINAL MESSAGE IF IT HAD NOT ALREADY BEEN DELIVERED. THE ONLY TELEGRAM ADDRESSED TO THE PROCUREMENT OFFICE, OTHER THAN THE TELEGRAPHIC BID MODIFICATION DISPATCHED BY SALERNO AT 1:44 P.M., ON JUNE 13, IS THE TELEGRAM DATED JUNE 28, TRANSMITTED TO THE PROCUREMENT OFFICE BY THE WESTERN UNION NEW ROCHELLE OFFICE AND RECEIVED AFTER AWARD VERIFYING THAT SALERNO HAD REQUESTED THAT OFFICE BY TELEPHONE AT 2:44 P.M., JUNE 13, TO CANCEL THE 1:44 P.M. TELEGRAM. THAT TELEGRAM, LIKE THE OTHER EVIDENCE WHICH SALERNO HAS SUBMITTED, MERELY INDICATES THAT WESTERN UNION FAILED TO COMPLY WITH SALERNO'S INSTRUCTIONS. THEREFORE, THERE BEING NO COMPLIANCE WITH THE REQUIREMENTS OF ASPR 2-304 (A), ITS PROVISIONS MAY NOT BE INVOKED.

IN THE CIRCUMSTANCES, WE MUST ADHERE TO OUR CONCLUSION THAT THERE WAS NEITHER A TIMELY SECOND BID MODIFICATION NOR AN EFFECTIVE WITHDRAWAL OF THE FIRST BID MODIFICATION SO AS TO WARRANT ALLOWANCE OF SALERNO'S CLAIM FOR AN INCREASE IN HIS CONTRACT PRICE. ACCORDINGLY, OUR DECISION OF MAY 12, IS REAFFIRMED.