B-153824, APR. 22, 1964

B-153824: Apr 22, 1964

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THE QUESTION PRESENTED IS WHETHER A TELEGRAPHIC MODIFICATION FROM DMH ENTERPRISES. OF THE EIGHT BIDS SUBMITTED ONLY THOSE OF DMH AND GREEN CONSTRUCTION ARE MATERIAL HERE. DMH'S BASIC BID FOR THE PROJECT WAS $650. GREEN CONSTRUCTION'S BASIC BID FOR THE PROJECT WAS $255. IF DMH'S TELEGRAPHIC MODIFICATION IS NOT CONSIDERED. GREEN CONSTRUCTION'S BID IS LOW. FIVE TELEGRAPHIC MODIFICATIONS WERE RECEIVED BY THE CONTRACTING OFFICER AS FOLLOWS: CHART "ABBOTT CONSTRUCTION. KANSAS" * EVIDENCE INDICATES CORRECT TIME WAS PROBABLY 10:10 A.M. THE SECOND COLUMN INDICATES THE TIME THAT THE TELEGRAM WAS RECEIVED IN THE BID OPENING ROOM. THE THIRD COLUMN INDICATES THE TIME THAT THE MESSAGE WAS FILED WITH WESTERN UNION.

B-153824, APR. 22, 1964

TO THE SECRETARY OF THE ARMY:

WE REFER TO A LETTER WITH ENCLOSURES DATED MARCH 25, 1964, FROM HEADQUARTERS, DEPARTMENT OF THE ARMY, OFFICE OF THE CHIEF OF ENGINEERS, WASHINGTON 25, D.C., (ENGGC-M), FURNISHING THIS OFFICE WITH A REPORT REGARDING A PROTEST FROM GREEN CONSTRUCTION COMPANY, ULRICH BUILDING, MANHATTAN, KANSAS. THE QUESTION PRESENTED IS WHETHER A TELEGRAPHIC MODIFICATION FROM DMH ENTERPRISES, INCORPORATED, P.O. BOX 413, SALINA, KANSAS, DELIVERED TO THE BID OPENING ROOM SOME 12 MINUTES AFTER THE TIME FOR BID OPENING MAY BE CONSIDERED AS PART OF DMH'S BID.

ON JANUARY 6, 1964, THE UNITED STATES ARMY ENGINEER DISTRICT, KANSAS CITY, MISSOURI, ISSUED INVITATION FOR BIDS NO. ENG-23-028-64-25 FOR THE CONSTRUCTION OF A BARRACKS FOR ENLISTED WOMEN AT FORT RILEY, KANSAS. THE INVITATION PROVIDED THAT BIDS WOULD BE OPENED ON FEBRUARY 6, 1964, AT 1:00 A.M., C.S.T., IN ROOM NO. 302, FEDERAL OFFICE BUILDING, 911 WALNUT STREET, KANSAS CITY, MISSOURI. OF THE EIGHT BIDS SUBMITTED ONLY THOSE OF DMH AND GREEN CONSTRUCTION ARE MATERIAL HERE. DMH'S BASIC BID FOR THE PROJECT WAS $650,000 WITH A PRICE OF $21,000 FOR THE ADDITIVES AND ALTERNATIVES. GREEN CONSTRUCTION'S BASIC BID FOR THE PROJECT WAS $255,700 WITH $12,515 AS THE PRICE FOR THE ADDITIVES AND ALTERNATIVES. IF DMH'S TELEGRAPHIC MODIFICATION IS NOT CONSIDERED, GREEN CONSTRUCTION'S BID IS LOW.

FIVE TELEGRAPHIC MODIFICATIONS WERE RECEIVED BY THE CONTRACTING OFFICER AS FOLLOWS:

CHART "ABBOTT CONSTRUCTION, INC. 10:59 AM 10:24 AM SALINA, KANSAS MULLEN CONSTRUCTION CO. 11:10 AM 10:21 AM SALINA, KANSAS DMH ENTERPRISES INC. 11:12 AM 0:25 AM* SALINA, KANSAS N.F. ENGLISH CONSTRUCTION CO. 11:20 AM 10:28 AM HUTCHINSON,

KANSAS WILSON CONSTRUCTORS, INC. 11:27 AM 10:23 AM SALINA, KANSAS"

* EVIDENCE INDICATES CORRECT TIME WAS PROBABLY 10:10 A.M. SEE DISCUSSION BELOW.

THE SECOND COLUMN INDICATES THE TIME THAT THE TELEGRAM WAS RECEIVED IN THE BID OPENING ROOM, THE THIRD COLUMN INDICATES THE TIME THAT THE MESSAGE WAS FILED WITH WESTERN UNION, AND THE FOURTH COLUMN INDICATES WHERE THE MODIFICATION WAS FILED. IT SHOULD BE NOTED THAT THE MODIFICATIONS WERE NOT RECEIVED IN THE BID OPENING ROOM IN THE SAME ORDER THEY WERE FILED WITH WESTERN UNION. THE TIME OF FILING OF THE DMH MODIFICATION WILL BE DISCUSSED FURTHER BELOW. ALL OF THE TELEGRAPHIC MODIFICATIONS WERE SENT BY "RX" MESSAGE, AN EXPEDITIOUS TYPE OF TELEGRAPH SERVICE. ONLY DMH'S MODIFICATION WHICH REDUCED ITS BASIC BID BY $401,200 AND THE ADDITIVES AND ALTERNATIVES BY $8,400 IS MATERIAL TO THIS CASE SINCE ABBOTT'S MODIFICATION WHICH ARRIVED BEFORE BID OPENING DID NOT REDUCE ABBOTT'S BID BELOW GREEN'S BID, AND SINCE THE OTHER THREE BIDDERS HAVE DECLINED TO FURNISH EVIDENCE RELATING TO THE ACCEPTABILITY OF THEIR LATE TELEGRAPHIC MODIFICATIONS. DMH'S BASIC BID AS REDUCED BY THE MODIFICATION WOULD BE SOME $6,900 LOWER THAN GREEN CONSTRUCTION'S BASIC BID, AND DMH'S BID FOR THE ADDITIVES AND ALTERNATIVES AS MODIFIED WOULD BE SOME $85 HIGHER THAN GREEN CONSTRUCTION'S BID FOR THE ADDITIVES AND ALTERNATIVES.

DMH CONTENDS ITS MODIFICATION WAS LATE BECAUSE OF DELAY BY THE TELEGRAPH COMPANY FOR WHICH DMH WAS NOT RESPONSIBLE. IN SUPPORT OF THIS CONTENTION, DMH SUBMITTED FOUR LETTERS FROM WESTERN UNION AND A COPY OF ITS ORIGINAL TELEGRAM. A LETTER DATED FEBRUARY 6, 1964, FROM WESTERN UNION SIGNED BY THE MANAGER OF THE SALINA TELEGRAPH OFFICE STATES THAT THE DMH TELEGRAM WAS FILED AT 10:25 .M., FEBRUARY 6, 1964. ANOTHER LETTER DATED FEBRUARY 7, 1964, ALSO SIGNED BY THE MANAGER OF THE SALINA TELEGRAPH OFFICE INDICATES THAT THE TIME OF FILING WAS 10:10 A.M. THE FEBRUARY 7 LETTER INDICATES THAT WESTERN UNION CONDUCTED AN INVESTIGATION TO ASCERTAIN THE TIME OF FILING STATED IN THAT LETTER. THERE IS NO INDICATION IN THE FEBRUARY 6 LETTER THAT THE TIME OF FILING STATED IN THAT LETTER WAS BASED ON AN INVESTIGATION BY WESTERN UNION. A LETTER DATED FEBRUARY 10, 1964, FROM THE KANSAS CITY DISTRICT MANAGER OF WESTERN UNION STATES AN INVESTIGATION WAS MADE CONCERNING THE CIRCUMSTANCES OF DMH'S TELEGRAPHIC MODIFICATION, AND ANOTHER LETTER FROM THE KANSAS CITY DISTRICT MANAGER OF WESTERN UNION ALSO DATED FEBRUARY 10, 1964, STATES THAT THE DMH MODIFICATION WAS FILED AT 10:04 A.M. ON MARCH 11, 1964, THE MANAGER OF THE SALINA TELEGRAPH OFFICE, DIRECTED A TELEGRAM TO THE CORPS OF ENGINEERS ADVISING THAT THE TIME OF FILING IN THE FEBRUARY 6 AND 7 LETTERS WERE APPROXIMATE AND THAT DMH'S BASIC COPY WAS FILED AT 10:04 A.M.

THE FEBRUARY 10, 1964, LETTER FROM THE WESTERN UNION'S DISTRICT MANAGER, KANSAS CITY, STATES THAT THE MODIFICATIONS LISTED ABOVE WERE NOT RECEIVED AT KANSAS CITY, MISSOURI, IN THE SAME ORDER IN WHICH THE TELEGRAMS WERE FILED AT SALINA. THIS LETTER ALSO STATES THAT THERE WERE DIFFERENT TRANSMISSION TIMES FOR THE MODIFICATIONS FROM SALINA TO KANSAS CITY (MISSOURI). WESTERN UNION ALSO ADVISES THAT BETWEEN THE HOURS OF 10:00 A.M. AND 11:30 A.M. ON FEBRUARY 6, 1964, THE SALINA, KANSAS, TELEGRAPH OFFICE HAD AN UNUSUAL AND COMPLETELY ABNORMAL RUSHOF BUSINESS WHICH CAUSED DMH'S MODIFICATION AND TWO OF THE OTHER MODIFICATIONS WHICH ORIGINATED AT SALINA, TO ARRIVE LATE AND ALSO CAUSED THE TELEGRAPHIC MODIFICATIONS TO BE DELIVERED IN AN ORDER DIFFERENT FROM THE ORDER OF FILING. THE TIME STAMPED ON DMH'S ORIGINAL WIRE IS BLURRED BUT DMH CONTENDS THAT UNDERMICROSCOPIC EXAMINATION THE STAMP WOULD INDICATE 10:04 A.M. AS THE TIME OF FILING. ARMY WAS UNABLE TO VERIFY THIS CONTENTION AFTER EXAMINATION WITH A MICROSCOPE AND MAGNIFYING GLASS. A COPY OF DMH'S TELEGRAM TO THE UNITED STATES ARMY ENGINEER DISTRICT AT KANSAS CITY IS STAMPED "10:25 M., C.S.T.' HOWEVER, CONSIDERING THAT THE RUSH OF BUSINESS ON FEBRUARY 6, 1964, PROBABLY CAUSED SOME CONFUSION AT THE SALINA OFFICE IT SEEMS VERY POSSIBLE THAT DMH'S TELEGRAM WAS NOT STAMPED AT THE TIME IT WAS ACTUALLY FILED AT THE SALINA TELEGRAPH OFFICE; CONSEQUENTLY, WE DO NOT CONSIDER THIS STAMP AS CONCLUSIVELY ESTABLISHING THE TIME OF FILING.

BY LETTER DATED MARCH 4, 1964, WESTERN UNION ADVISES THAT THE AVERAGE TIME OF SERVICE FOR TELEGRAMS FROM THE TIME FILED AT ANY CITY UNTIL DELIVERED TO THE ADDRESSEE BY WESTERN UNION TIE-LINE AT KANSAS CITY WAS 32.8 MINUTES FOR THE MONTH OF JANUARY, AND 34.5 MINUTES FOR THE MONTH OF FEBRUARY. FOR THE WEEK ENDED FEBRUARY 8, THE AVERAGE TIME WAS 31.0 MINUTES, AND FOR FEBRUARY 6, 1964, THE AVERAGE SPEED-OF SERVICE FOR DELIVERY VIA TIE-LINE AT KANSAS CITY WAS 19 MINUTES. WESTERN UNION ADVISES THAT THE SERVICE OBJECTIVE OF 60 MINUTES BETWEEN TIME OF FILING AND TIME OF DELIVERY IS 100 PERCENT. THESE AVERAGES WERE COMPILED BY SAMPLING A CERTAIN PERCENTAGE OF MESSAGES HANDLED IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION. SEE 47 CODE OF FEDERAL REGULATIONS SEC. 64.221 THROUGH 64.295.

THE INVITATION PROVIDES THAT TELEGRAPHIC MODIFICATIONS WILL BE CONSIDERED. PARAGRAPH 7 OF STANDARD FORM 22, ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS (AUG 1963)., " AS MODIFIED, IN PERTINENT PART PROVIDES:

"/A) 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: (I) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (II) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED; AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; * * *.'

UNDER THE PROVISION OF ARMED SERVICES PROCUREMENT REGULATION SECTION 2- 305 THE RULES STATED FOR LATE BIDS IN ARMED SERVICES PROCUREMENT REGULATION 2-303.3 THROUGH 2-303.5 APPLY IN DETERMINING WHETHER LATE MODIFICATIONS SHOULD BE CONSIDERED EFFECTIVE. ARMED SERVICES PROCUREMENT REGULATION SECTION 2-303.4 ENTITLED "TELEGRAPHIC BIDS" PROVIDES AS FOLLOWS:

"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 CONTRACTING OFFICER FOUND THAT THE TELEGRAPHIC MODIFICATION OF DMH WAS LATE SOLELY BECAUSE OF DELAY BY THE TELEGRAPH COMPANY AND THAT DMH FURNISHED CLEAR AND CONVINCING EVIDENCE, INCLUDING SUBSTANTIATION BY AUTHORIZED OFFICIALS OF THE TELEGRAPH COMPANY, THAT THE TELEGRAPHIC MODIFICATION WAS FILED IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE. CONSEQUENTLY, IT IS RECOMMENDED THAT DMH'S MODIFICATION BE ACCEPTED.

FROM A REVIEW OF THE RECORD WE FIND THAT ONLY ONE OF THE WESTERN UNION LETTERS INDICATED THAT THE TIME OF FILING WAS 10:25 A.M. AND THAT THE TIME OF FILING SET FORTH IN THIS LETTER WAS NOT BASED ON THE RESULTS OF AN INVESTIGATION BY WESTERN UNION. WE FIND THAT THE OTHER WESTERN UNION LETTERS STATE THAT THE TIME OF FILING WAS SOMETIME BETWEEN 10:04 A.M. AND 10:10 A.M., THAT THE TIME OF FILING SET FORTH IN THESE LETTERS IS BASED ON INVESTIGATIONS CONDUCTED BY WESTERN UNION, AND THAT WESTERN UNION LATER CHANGED ITS POSITION REGARDING THE 10:25 A.M. FILING TIME STATED IN THE FEBRUARY 6 LETTER. IN THESE CIRCUMSTANCES THE PREPONDERANCE OF THE EVIDENCE CLEARLY INDICATES THAT DMH'S MODIFICATION WAS FILED ABOUT 10:10 A.M. ON FEBRUARY 6, 1964, OR SOME 50 MINUTES BEFORE BID OPENING. THE QUESTION IS WHETHER A TELEGRAM FROM SALINA, KANSAS, WOULD BE DELIVERED TO THE BID OPENING ROOM IN KANSAS CITY, MISSOURI, WITHIN 50 MINUTES BY NORMAL TRANSMISSION PROCEDURE.

THE AVERAGE TIME FOR DELIVERY OF A TELEGRAM AT KANSAS CITY, MISSOURI, AFTER FILING WAS 34.5 MINUTES FOR THE MONTH OF FEBRUARY, 31.0 MINUTES FOR THE WEEK OF FEBRUARY 8, AND 19 MINUTES ON FEBRUARY 6. DMH'S TELEGRAM WAS FILED WELL WITHIN THE TIME REQUIRED FOR DELIVERY AS INDICATED BY THESE AVERAGES. MOREOVER, THE FACT THAT THE TELEGRAPHIC MODIFICATIONS FROM SALINA, KANSAS, WERE NOT RECEIVED BY THE KANSAS CITY TELEGRAPH OFFICE OR THE BID OPENING ROOM IN THE SAME ORDER IN WHICH THE TELEGRAMS WERE FILED AT THE SALINA OFFICE, WHICH APPARENTLY WOULD NOT HAPPEN IN THE NORMAL BUSINESS ROUTINE OF THE TELEGRAPH COMPANY, SUPPORTS WESTERN UNION'S STATEMENT THAT THE VOLUME OF BUSINESS BETWEEN 10:00 A.M. AND 11:30 A.M. ON FEBRUARY 6 WAS UNUSUAL AND COMPLETELY ABNORMAL. WE NOTE THAT THE AVERAGE DELIVERY TIMES SET OUT ABOVE, WHILE NOT NECESSARILY INDICATIVE OF NORMAL TRANSMISSION TIMES, ARE SUFFICIENTLY LESS THAN THE 50 MINUTES AVAILABLE FOR TRANSMISSION OF THE TELEGRAM PRIOR TO BID OPENING TO RAISE A PRESUMPTION THAT SUCH TELEGRAM WOULD HAVE BEEN DELIVERED ON TIME BY "NORMAL TRANSMISSION PROCEDURE.' ACCORDINGLY, DMH'S MODIFICATION MAY BE CONSIDERED AS ADMINISTRATIVELY RECOMMENDED.

WE ARE RETURNING THE PAPERS SUBMITTED WITH YOUR REPORT ON THE MATTER EXCEPT FOR THE REPORT FROM THE DEPUTY DIVISION ENGINEER, THE KANSAS CITY CORPS OF ENGINEERS' REPORT, AND THE REPORT FROM THE CONTRACTING OFFICER.