B-154333, JUN. 11, 1964

B-154333: Jun 11, 1964

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TO THE POSTMASTER GENERAL: REFERENCE IS MADE TO LETTER OF JUNE 2. THERE WAS RECEIVED OVER TELEFAX IN THE POST OFFICE DEPARTMENT TELECOMMUNICATIONS ROOM A TELEGRAPHIC BID MODIFICATION FROM THE DATTEL PARTNERSHIP INCREASING THE PER ANNUM RENTAL TO $96. THE TELEFAX IN ISSUE WAS PICKED UP BY THE MESSENGER AT 2:00 P.M. WAS DELIVERED TO THE REALTY DIVISION BUREAU OF FACILITIES AT 2:02 P.M. A BUREAU OF FACILITIES REPRESENTATIVE THEN DELIVERED THE TELEGRAM TO THE ROOM WHERE BIDS WERE IN THE PROCESS OF BEING READ. AFTER THE LAST OF THE 13 BIDS RECEIVED WAS READ. THE TELEGRAM WAS READ. THAT IT WAS DESIRED THAT THE TELEGRAM BE DISREGARDED. DATTEL EXPLAINED THAT THE TELEGRAM WAS FILED WITH WESTERN UNION ABOUT AN HOUR AND A HALF BEFORE THE BID OPENING TIME BECAUSE THE GENERAL CONTRACTOR HAD INCREASED HIS PRICE AND THAT BY THE TIME HE LEARNED SUBSEQUENTLY THAT THE CONTRACTOR WISHED THE INCREASE DISREGARDED IT WAS ABOUT 10 MINUTES BEFORE BID OPENING SO THAT ANOTHER TELEGRAM FROM MEMPHIS.

B-154333, JUN. 11, 1964

TO THE POSTMASTER GENERAL:

REFERENCE IS MADE TO LETTER OF JUNE 2, 1964, FROM THE ASSISTANT POSTMASTER GENERAL, BUREAU OF FACILITIES, REQUESTING A DECISION WHETHER THERE SHOULD BE CONSIDERED IN THE EVALUATION OF BIDS A LATE RECEIVED TELEGRAM FROM SAMUAL AND THEODORE DATTEL, MEMPHIS, TENNESSEE, INCREASING THE BID SUBMITTED IN RESPONSE TO THE ADVERTISEMENT FOR BIDS FOR CONSTRUCTION AND LEASE-BACK OF A POSTAL FACILITY IN HAMMOND, INDIANA, PURSUANT TO 39 U.S.C. 2103.

THE DATTEL PARTNERSHIP SUBMITTED A LOW BID IN THE AMOUNT OF $92,760 PER YEAR FOR THE BASIC 30-YEAR LEASE TERM. THE NEXT LOW BIDDER BID $92,904 PER YEAR FOR THE SAME TERM.

AT 1:45 P.M. E.D.T., 15 MINUTES BEFORE THE TIME SET FOR THE OPENING OF BIDS, THERE WAS RECEIVED OVER TELEFAX IN THE POST OFFICE DEPARTMENT TELECOMMUNICATIONS ROOM A TELEGRAPHIC BID MODIFICATION FROM THE DATTEL PARTNERSHIP INCREASING THE PER ANNUM RENTAL TO $96,960. THE REGULAR MESSENGER FOR THE TELECOMMUNICATIONS ROOM PICKS UP AND DELIVERS MESSAGES ONCE AN HOUR ON THE HOUR. IN ACCORDANCE WITH THIS PRACTICE, THE TELEFAX IN ISSUE WAS PICKED UP BY THE MESSENGER AT 2:00 P.M. E.D.T., AND WAS DELIVERED TO THE REALTY DIVISION BUREAU OF FACILITIES AT 2:02 P.M. E.D.T. A BUREAU OF FACILITIES REPRESENTATIVE THEN DELIVERED THE TELEGRAM TO THE ROOM WHERE BIDS WERE IN THE PROCESS OF BEING READ. AFTER THE LAST OF THE 13 BIDS RECEIVED WAS READ, THE TELEGRAM WAS READ.

AFTER THE CLOSE OF THE BID OPENING, SAMUEL DATTEL ADVISED BY TELEPHONE, AND CONFIRMED BY LETTER, THAT IT WAS DESIRED THAT THE TELEGRAM BE DISREGARDED. MR. DATTEL EXPLAINED THAT THE TELEGRAM WAS FILED WITH WESTERN UNION ABOUT AN HOUR AND A HALF BEFORE THE BID OPENING TIME BECAUSE THE GENERAL CONTRACTOR HAD INCREASED HIS PRICE AND THAT BY THE TIME HE LEARNED SUBSEQUENTLY THAT THE CONTRACTOR WISHED THE INCREASE DISREGARDED IT WAS ABOUT 10 MINUTES BEFORE BID OPENING SO THAT ANOTHER TELEGRAM FROM MEMPHIS, TENNESSEE, TO WASHINGTON, D.C., DIRECTING CANCELLATION OF THE FIRST ONE COULD NOT BE SENT TO ARRIVE IN TIME. IN VIEW THEREOF AND SINCE HIS SECRETARY HAD ASCERTAINED THAT THE TELEGRAM WAS NOT DISPATCHED UNTIL ABOUT 41 MINUTES AFTER THE TELEGRAM WAS FILED AND, FROM A CONVERSATION WITH WESTERN UNION, HAD REASON TO BELIEVE THAT IT WOULD NOT ARRIVE ON TIME, MR. DATTEL DECIDED TO LEAVE THE SITUATION AS IT WAS.

THE ADVERTISEMENT FOR BIDS PROVIDES IN SECTION 13 THAT BIDS TO BE CONSIDERED ELIGIBLE FOR CONSIDERATION MUST BE "ADDRESSED TO AND RECEIVED IN THE OFFICE OF THE DIRECTOR, REALTY DIVISION, BUREAU OF FACILITIES, POST OFFICE DEPARTMENT, ROOM 4402, WASHINGTON, D.C. 20260, NOT LATER THAN :00 P.M., PREVAILING LOCAL TIME, MAY 21, 1964.' SECTION 14 OF THE ADVERTISEMENT PROVIDES THE CONDITIONS UPON WHICH TELEGRAPHIC MODIFICATIONS MAY BE CONSIDERED. IT STATES THAT "BIDS MAY BE MODIFIED OR WITHDRAWN BY TELEGRAPHIC NOTICE PROVIDED ANY SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF BIDS.' WHILE SECTION 14 DOES NOT DESIGNATE THE PLACE WHERE THE TELEGRAPHIC MODIFICATIONS ARE TO BE RECEIVED, THE REASONABLE INTERPRETATION OF THAT REQUIREMENT IS THAT THEY BE RECEIVED IN THE ROOM STIPULATED IN THE PRECEDING SECTION, THAT PLACE HAVING BEEN DESIGNATED THE ONE FOR RECEIVING OF BIDS AND THE LOGICAL INFERENCE FROM THAT BEING THAT IF IT IS THE PLACE TO SUBMIT THE BID, IT IS THE PLACE TO WHICH MODIFICATIONS AND WITHDRAWALS OF THE BID SHOULD BE SENT, NO OTHER PLACE HAVING BEEN SPECIFIED FOR THE LATTER PURPOSES.

IN B-95514, JUNE 7, 1950, UNDER A SIMILAR SET OF CIRCUMSTANCES, OUR OFFICE HELD THAT A LATE TELEGRAPHIC BID MODIFICATION FROM THE OTHERWISE LOW BIDDER WHICH WOULD HAVE DISPLACED IT IN THE STANDING OF BIDDERS MIGHT BE DISREGARDED UNDER TERMINOLOGY IN THE INVITATION PROVIDING THAT TELEGRAPHIC MODIFICATIONS WOULD BE CONSIDERED IF RECEIVED PRIOR TO THE HOUR SET FOR OPENING, SINCE SUCH TERMINOLOGY PROVIDED A BASIS FOR THE ACTION AND IT WAS IN THE INTEREST OF THE GOVERNMENT TO DO SO.

IN THIS CASE THE ADVERTISEMENT FOR BIDS PROVIDES FOR TELEGRAPHIC MODIFICATION WHEN RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF BIDS AND DOES NOT PROVIDE FOR THE CONSIDERATION OF LATE TELEGRAPHIC BID MODIFICATIONS. TO VARY OR DISREGARD, AFTER BIDS HAVE BEEN OPENED, ANY OF THE STATED TERMS AND CONDITIONS OF THE SOLICITATION FOR BIDS, WHICH ARE THE GROUND RULES UPON WHICH BIDDERS MUST RELY, IS A SERIOUS MATTER. IN 17 COMP. GEN. 554, 558, IT WAS STATED THAT TO PERMIT PUBLIC OFFICERS TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING CONTRACTS ON AN OPEN COMPETITIVE BASIS. CHANGING THE GROUND RULES UPON WHICH BIDDERS ARE REQUESTED TO BID AFTER THE OPENING OF BIDS IS SUBJECT TO THE SAME CRITICISM AND SHOULD BE AVOIDED.

WHILE THE END RESULT IN THE IMMEDIATE CASE IS THE SAME AS THAT IN B 154076, MAY 6, 1964, CITED IN THE JUNE 2 LETTER, IT SHOULD BE NOTED THAT THE TWO CASES ARE NOT ALIKE IN THAT THEY INVOLVED DIFFERENT PROVISIONS WITH RESPECT TO LATE TELEGRAPHIC MODIFICATIONS. THE ADVERTISEMENT FOR BIDS IN THE IMMEDIATE CASE EMPLOYED TERMS DIFFERENT FROM THE STANDARD LATE TELEGRAPHIC MODIFICATION PROVISION EMPLOYED IN THE INVITATION FOR BIDS IN THE CITED CASE.

IN VIEW OF THE FOREGOING, THE TELEGRAPHIC MODIFICATION MAY BE DISREGARDED AND AN AWARD MAY BE MADE TO THE DATTEL PARTNERSHIP IF OTHERWISE PROPER.

THE ENCLOSURES WHICH ACCOMPANIED THE JUNE 2 LETTER ARE RETURNED AS REQUESTED.