B-157416, SEP. 28, 1965

B-157416: Sep 28, 1965

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TO PRINCI AND LECOMTE: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4. ALTHOUGH THE TEXT OF THE MODIFICATION IS NOT DISCLOSED. IT IS ASSUMED THAT IT HAD A MATERIAL EFFECT ON PEABODY'S BID. PEABODY WAS THE LOW BIDDER AT THE TIME OF BID OPENING. PEABODY WAS NOTIFIED BY LETTER OF JULY 29 THAT IT WOULD BE AWARDED THE CONTRACT IN THE AMOUNT OF $552. IN SUPPORT OF YOUR CONTENTION THAT THE BID MODIFICATION IS PROPERLY FOR CONSIDERATION. YOU HAVE FURNISHED A LETTER DATED AUGUST 2 FROM AN OFFICIAL OF THE WESTERN UNION TELEGRAPH COMPANY BOSTON OFFICE STATING THAT PEABODY FILED ITS TELEGRAM WITH THAT OFFICE AT 1:32 P.M. THAT A WRITTEN TELEGRAM WAS SUBSEQUENTLY DELIVERED AT 2:30 P.M. NOT LATER THAN THE TIME SET FOR OPENING OF BIDS SHALL BE CONSIDERED PROVIDED IT IS CONFIRMED BY THE TELEGRAPH COMPANY BY DELIVERY OF THE WRITTEN TELEGRAM WHICH FORMED THE BASIS FOR THE TELEPHONE CALL.

B-157416, SEP. 28, 1965

TO PRINCI AND LECOMTE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1965, IN BEHALF OF PEABODY CONSTRUCTION COMPANY, INCORPORATED, BOSTON, MASSACHUSETTS, PROTESTING ANY AWARD BY THE HOUSING AND HOME FINANCE AGENCY (HHFA) OF A CONSTRUCTION CONTRACT ON PROJECT NO. MASS 65-C-FED 4A15, OTIS AIR FORCE BASE, BOURNE, MASSACHUSETTS, TO PEABODY WITHOUT CONSIDERATION OF A TELEGRAM DISPATCHED BY PEABODY TO THE BID OPENING OFFICE ON JULY 21, 1965, THE DATE SET FOR BID OPENING, MODIFYING ITS ORIGINAL BID. ALTHOUGH THE TEXT OF THE MODIFICATION IS NOT DISCLOSED, IT IS ASSUMED THAT IT HAD A MATERIAL EFFECT ON PEABODY'S BID.

THE RECORD INDICATES THAT THE BID SOLICITATION STIPULATED BIDS WOULD BE OPENED AT THE PROCURING AGENCY, THE NEW YORK REGIONAL OFFICE OF HHFA, AT 2:00 P.M., JULY 21. ON THE BASIS OF ITS BASE BID OF $555,000, LESS A DEDUCTIVE ALTERNATE OF $2,500, PEABODY WAS THE LOW BIDDER AT THE TIME OF BID OPENING.

THE RECORD FURTHER INDICATES THAT AT 2:32 P.M., JULY 21, THE PROCUREMENT OFFICE RECEIVED A TELEGRAPHIC MODIFICATION OF PEABODY'S BID. HOWEVER, ON THE BASIS THAT THE MODIFICATION HAD NOT BEEN TIMELY RECEIVED, PEABODY WAS NOTIFIED BY LETTER OF JULY 29 THAT IT WOULD BE AWARDED THE CONTRACT IN THE AMOUNT OF $552,500, REPRESENTING ITS BASE BID OF $555,000 LESS THE $2,500 DEDUCTIVE ALTERNATE.

IN SUPPORT OF YOUR CONTENTION THAT THE BID MODIFICATION IS PROPERLY FOR CONSIDERATION, YOU HAVE FURNISHED A LETTER DATED AUGUST 2 FROM AN OFFICIAL OF THE WESTERN UNION TELEGRAPH COMPANY BOSTON OFFICE STATING THAT PEABODY FILED ITS TELEGRAM WITH THAT OFFICE AT 1:32 P.M., JULY 21; THAT THE WESTERN UNION NEW YORK OFFICE TELEPHONED THE MESSAGE TO THE BID OPENING OFFICE AT 1:59 P.M., THE SAME DAY TO A PERSON GIVING THE INITIALS "WPMP" (WMP); AND THAT A WRITTEN TELEGRAM WAS SUBSEQUENTLY DELIVERED AT 2:30 P.M., THE SAME DAY TO A PERSON WITH INITIALS APPEARING TO BE "HH.'

SUBPART 1-2-304/A) OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES THAT A BID MODIFICATION OR WITHDRAWAL RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, BY TELEPHONE, FROM THE RECEIVING TELEGRAPH OFFICE, NOT LATER THAN THE TIME SET FOR OPENING OF BIDS SHALL BE CONSIDERED PROVIDED IT IS CONFIRMED BY THE TELEGRAPH COMPANY BY DELIVERY OF THE WRITTEN TELEGRAM WHICH FORMED THE BASIS FOR THE TELEPHONE CALL.

WE ARE ADVISED BY HHFA THAT IT HAS IDENTIFIED THE PROCUREMENT OFFICE EMPLOYEE WHO RECEIVED THE TELEPHONED MESSAGE FROM PEABODY IMMEDIATELY PRIOR TO BID OPENING, AS WELL AS THE SUBSEQUENT WRITTEN CONFIRMATION, AS INDICATED IN THE WESTERN UNION LETTER. ACCORDINGLY, CONSISTENT WITH THE PROCUREMENT REGULATIONS, IT HAS BEEN DETERMINED THAT PEABODY CANNOT BE HELD TO ITS ORIGINAL BID.

WE ARE FURTHER ADVISED THAT SINCE THE PERIOD FOR ACCEPTANCE OF THE REMAINING BIDS HAD EXPIRED AWARD COULD NOT BE MADE TO THE BIDDER WHOSE BID WAS THE LOWEST AFTER MODIFICATION OF THE PEABODY BID. ALL BIDS HAVE THEREFORE BEEN REJECTED AND IT IS THE INTENTION OF HHFA TO READVERTISE THE PROCUREMENT AS SOON AS POSSIBLE UNDER REVISED SPECIFICATIONS.

IN THE CIRCUMSTANCES, NO FURTHER ACTION BY OUR OFFICE APPEARS TO BE REQUIRED.

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