B-157809, OCT. 15, 1965

B-157809, OCT. 15, 1965

TO THE SECRETARY OF THE NAVY:

WE REFER TO A LETTER OF OCTOBER 6, 1965, WITH ENCLOSURES, REFERENCE 43.410A/JMC:JH, FROM THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY. A DECISION HAS BEEN REQUESTED WHETHER THE TELEGRAPH MODIFICATION FROM THE WHILMAR GENERAL CONTRACTORS, INCORPORATED, AND GOOLSBY ENGINEERING, INCORPORATED, A JOINT VENTURE HEREAFTER REFERRED TO AS WHILMAR AND GOOLSBY, MAY BE CONSIDERED.

ON AUGUST 16, 1965, THE GULF DIVISION, BUREAU OF YARDS AND DOCKS, NEW ORLEANS, LOUISIANA, ISSUED INVITATION FOR BIDS NO. NBY-72030, FOR THE CONSTRUCTION OF THE APOLLO UNIFIED S-BAND EXPANSION (RODD FIELD), CORPUS CHRISTI, TEXAS, IN ACCORDANCE WITH SPECIFICATION NO. 72030/65. BIDS WERE OPENED ON SEPTEMBER 14, 1965, AT THE OFFICES OF THE GULF DIVISION LOCATED IN ALGIERS, LOUISIANA. THE CHARLES BURNETT COMPANY, INCORPORATED, D/B/A, H. E. JONES CONSTRUCTION COMPANY OF CORPUS CHRISTI, TEXAS, SUBMITTED A BID WHICH QUOTED A PRICE OF $714,000 FOR THE ABOVE PROJECT. WHILMAR AND GOOLSBY'S BID AS SUBMITTED WAS $975,000. BY A TELEGRAPHIC MODIFICATION, WHICH IS THE SUBJECT FOR CONSIDERATION IN THIS CASE, THE WHILMAR AND GOOLSBY BID WAS REDUCED BY $263,000 TO $712,000. IF THE TELEGRAPHIC MODIFICATION MAY PROPERLY BE CONSIDERED, THE WHILMAR AND GOOLSBY BID IS LOW.

THE RECORD SHOWS THAT THE WHILMAR AND GOOLSBY MODIFICATION WAS FILED ON THE DAY OF BID OPENING WITH THE WESTERN UNION TELEGRAPH COMPANY AT TEMPLE, TEXAS, AT 1:44 P.M., C.S.T. WESTERN UNION HAS ADVISED THAT THE WHILMAR AND GOOLSBY MESSAGE WAS TRANSMITTED FROM TEMPLE, TEXAS, TO DALLAS AT :02 P.M. THE RECORDS OF WESTERN UNION AT DALLAS INDICATE THAT THE WHILMAR AND GOOLSBY MESSAGE WAS TRANSMITTED TO NEW ORLEANS AT 2:35 P.M., AND WAS ELECTRICALLY TIMED AS RECEIVED IN NEW ORLEANS AT 2:35 P.M.; HOWEVER, THE MESSAGE WAS NOT TRANSMITTED TO THE PROCURING OFFICE UNTIL AFTER BID OPENING BECAUSE OF THE ABNORMAL VOLUME OF BUSINESS DUE TO HURRICANE "BETSY.' IN THIS CONNECTION A LETTER FROM WESTERN UNION DATED SEPTEMBER 28, 1965, STATES:

"* * * ALL TELEGRAMS INTO NEW ORLEANS FROM ALL POINTS OF THE COUNTRY EXPERIENCED HEAVY DELAY INCLUDING TELEGRAMS FROM DALLAS, TEXAS. DESPITE THE FACT THAT WE FLEW 28 EMPLOYEES INTO NEW ORLEANS TO ASSIST IN HANDLING THE TELEGRAMS, THE INFLUX OF TELEGRAMS TAXED OUR FACILITIES, CAUSING DELAYS IN SWITCHING THE TELEGRAMS OUT OF OUR SWITCHING AISLES.'

WESTERN UNION HAS ADVISED THAT UNDER NORMAL CONDITIONS WHILMAR AND GOOLSBY'S MESSAGE WOULD HAVE BEEN PRINTED ON THE TELEGRAM FORM AND TELEPHONED TO THE PROCURING OFFICE BY ABOUT 2:45 P.M. THE WESTERN UNION TIME STAMP ON THE ACTUAL TELEGRAM IS 3:20 P.M., SEPTEMBER 14, 1965.

BY LETTER OF SEPTEMBER 20, 1965, H. E. JONES HAS PROTESTED TO YOUR DEPARTMENT THE PROPOSED AWARD TO WHILMAR AND GOOLSBY. BASICALLY, H. E. JONES ALLEGES THAT ANY DAMAGE TO TELEGRAPH FACILITIES FROM HURRICANE "BETSY" WOULD HAVE BEEN REPAIRED BY THE DAY OF BID OPENING. IN THIS CONNECTION THE RECORD SHOWS THAT WHILMAR AND GOOLSBY'S MESSAGE WAS NOT DELAYED BY DAMAGE TO WESTERN UNION FACILITIES BUT BY THE ABNORMAL VOLUME OF MESSAGES SENT TO THE NEW ORLEANS AREA IN THE AFTERMATH OF HURRICANE "BETSY.' H. E. JONES ADVISED YOUR DEPARTMENT THAT SIX TELEGRAPHIC MESSAGES WERE RELAYED BY WESTERN UNION TO THE PROCUREMENT OFFICE WITHOUT DELAY ON SEPTEMBER 14, 1965, AND THAT ONE OF THESE MESSAGES ORIGINATED IN THE SAME OFFICE AS THE WHILMAR AND GOOLSBY MESSAGE. IN THE ABSENCE OF FURTHER EVIDENCE ON THIS POINT WE DO NOT FEEL THAT THIS ALLEGATION WOULD NECESSARILY SHOW THAT THERE WAS NO DELAY IN THE WHILMAR AND GOOLSBY MESSAGE.

CLAUSE 5 (D) OF THE INSTANT INVITATION PROVIDES THAT TELEGRAPHIC MODIFICATIONS WILL BE CONSIDERED. CLAUSE 7 OF THE INVITATIONS ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" PROVIDES:

"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 RECEIVED BEFORE AWARD AND (A) THEY ARE SUBMITTED BY MAIL (OR BY TELEGRAPH, IF AUTHORIZED) AND (B) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY, IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE * * *.'

IN VIEW OF THE RECORD PRESENTED WE FIND THAT WHILMAR AND GOOLSBY'S TELEGRAPHIC MODIFICATION WOULD HAVE BEEN TIMELY RECEIVED BY THE PROCURING OFFICE IF THE ABNORMAL VOLUME OF MESSAGES DUE TO HURRICANE "BETSY" HAD NOT DELAYED WESTERN UNION'S NORMAL TRANSMISSION PROCEDURE. THE DELAY IN THIS CASE THEREFORE WAS DUE TO THE DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IN THESE CIRCUMSTANCES WHILMAR AND GOOLSBY'S MODIFICATION MAY BE CONSIDERED. SEE B-156142, FEBRUARY 19, 1965.