B-158918, MAY 24, 1966, 45 COMP. GEN. 730

B-158918: May 24, 1966

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NEED NOT BE CANCELED ON THE BASIS THE MODIFICATION WAS AN "ENTIRELY NEW ID" AS CONTENDED BY THE DISPLACED LOW BIDDER. THE RECORD JUSTIFYING THE CONTRACTING OFFICER'S CONCLUSION THAT THE MODIFICATION WAS FILED IN TIME FOR RECEIPT BY NORMAL TRANSMISSION PROCEDURE PRIOR TO THE TIME FIXED IN THE INVITATION. THAT THE DELAY DUE TO "BUSTING" AND REPEATING THE MESSAGE WAS NOT THE FAULT OF THE BIDDER. WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION. THE FACT THAT THE PRICE REDUCTION WAS SUBSTANTIAL DOES NOT TRANSFORM THE MODIFICATION INTO AN . * FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 5. A TOTAL OF TEN BIDS WERE RECEIVED FOR THIS CONTRACT. THE BIDS WERE OPENED AT 3:00 P.M. WHICH WAS ISSUED ON JANUARY 20.

B-158918, MAY 24, 1966, 45 COMP. GEN. 730

BIDS - LATE - TELEGRAPHIC MODIFICATIONS - DELAY DUE TO WESTERN UNION AN AWARD TO A BIDDER, LOW UPON CONSIDERATION OF A TELEGRAPHIC BID MODIFICATION RECEIVED 3 MINUTES AFTER THE SCHEDULED BID OPENING TIME, DUE TO AN UNNECESSARY BREAK IN TRANSMISSION BY A WESTERN UNION OPERATOR, NEED NOT BE CANCELED ON THE BASIS THE MODIFICATION WAS AN "ENTIRELY NEW ID" AS CONTENDED BY THE DISPLACED LOW BIDDER, THE RECORD JUSTIFYING THE CONTRACTING OFFICER'S CONCLUSION THAT THE MODIFICATION WAS FILED IN TIME FOR RECEIPT BY NORMAL TRANSMISSION PROCEDURE PRIOR TO THE TIME FIXED IN THE INVITATION, AND THAT THE DELAY DUE TO "BUSTING" AND REPEATING THE MESSAGE WAS NOT THE FAULT OF THE BIDDER, BUT WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION, AND THE FACT THAT THE PRICE REDUCTION WAS SUBSTANTIAL DOES NOT TRANSFORM THE MODIFICATION INTO AN ,ENTIRELY NEW BID" UNDER AN INVITATION PROHIBITING TELEGRAPHIC BIDS, AND REQUIRING USE OF FURNISHED FORMS AND THE SUPPLYING OF INFORMATION THAT HAD NOT BEEN INCLUDED IN THE BID MODIFICATION.

TO WALSH, BRENNER, SUSMAN AND DUFFY, MAY 24, 1966,*

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1966, WITH ENCLOSURES, ON BEHALF OF DE MATTEO CONSTRUCTION COMPANY, PROTESTING AGAINST AWARD OF A CONTRACT TO EITHER NEW ENGLAND CONSTRUCTORS, INC., OR TO FRANKLIN CONSTRUCTION COMPANY, BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR CONSTRUCTION OF THE FOREST INSECT AND DISEASE LABORATORY, HAMDEN, CONNECTICUT, GSA PROJECT NO. 06068.

A TOTAL OF TEN BIDS WERE RECEIVED FOR THIS CONTRACT, AND THE BIDS WERE OPENED AT 3:00 P.M., E.S.T., ON FEBRUARY 24, 1966, AS SCHEDULED, IN THE GSA BUSINESS SERVICE OFFICE, U.S. POST OFFICE BUILDING, BOSTON, MASSACHUSETTS. THE INVITATION, WHICH WAS ISSUED ON JANUARY 20, 1966, REQUIRED THE SUBMISSION OF A BASE BID, FIVE ALTERNATE ADDITIVES, AND A LIST OF PROPOSED SUBCONTRACTORS FOR DESIGNATED CATEGORIES OF WORK. AT THE TIME THE BIDS WERE OPENED AN APPARENT LOW BASE BID OF $688,700 WAS SUBMITTED BY DE MATTEO. THE FRANKLIN CONSTRUCTION COMPANY WAS THE APPARENT SECOND LOW BIDDER WITH A BASE BID OF $669,000. NEW ENGLAND'S BASE BID WAS $900,000.

AT 3:03 P.M., A TELEGRAPHIC MODIFICATION OF THE NEW ENGLAND BID WAS RECEIVED IN THE GSA TELECOMMUNICATIONS OFFICE, WHICH IS IN THE SAME BUILDING AS THE BUSINESS SERVICE OFFICE. THE MODIFICATION REDUCED THE BASE BID $255,314, REDUCED ALL THE ALTERNATE ADDITIVES, AND CHANGED CERTAIN OF THE PROPOSED SUBCONTRACTORS. THE TELEGRAM WAS FILED WITH THE HARTFORD, CONNECTICUT, OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY AT 2:13 P.M., E.S.T., ON THE BID OPENING DAY.

AT 3:05 P.M., E.S.T., ON FEBRUARY 24, 1966, A TELEGRAPHIC MODIFICATION OF THE FRANKLIN BID WAS RECEIVED IN THE GSA TELECOMMUNICATIONS OFFICE. THE MODIFICATION REDUCED THE BASE AMOUNT $10,000 AND CHANGED THE NAME OF THE PROPOSED ELECTRICAL SUBCONTRACTOR. THE TELEGRAM WAS FILED WITH THE NEW HAVEN, CONNECTICUT, OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY AT 2:24 P.M., E.S.T., ON BID OPENING DAY.

BASED UPON HIS INVESTIGATION, THE CONTRACTING OFFICER CONCLUDED THAT ALTHOUGH BOTH OF THE TELEGRAPHIC MODIFICATIONS WERE RECEIVED AFTER THE TIME SET FOR BID OPENING, THEY WERE NEVERTHELESS PROPER FOR CONSIDERATION UNDER THE TERMS OF THE INVITATION AND APPLICABLE REGULATIONS. THE ALIGNMENT OF THE THREE LOW BIDDERS AFTER CONSIDERATION OF THE MODIFICATION IS AS FOLLOWS:

CHART

NEW ENGLAND CONSTRUCTORS, INC. $644,686

FRANKLIN CONSTRUCTION CO., INC. 659,000

DE MATTEO CONSTRUCTION COMPANY 699,000 IN VIEW THEREOF, NEW ENGLAND CONSTRUCTORS WAS AWARDED A CONTRACT ON ITS BASE BID AND ALTERNATE ADDITIVES A AND D ON APRIL 1, 1966. HOWEVER, WE HAVE BEEN ADVISED THAT "NOTICE TO PROCEED" IS BEING WITHHELD PENDING OUR DECISION ON YOUR PROTEST.

IN PROTESTING AGAINST THE AWARD OF A CONTRACT TO EITHER NEW ENGLAND OR FRANKLIN IT IS YOUR PRIMARY CONTENTION THAT SINCE NEITHER OF THEM ALLOWED A REASONABLE LENGTH OF TIME FOR THEIR TELEGRAPHIC MODIFICATIONS TO ARRIVE BEFORE BID OPENING, THEIR BIDS MUST BE CONSIDERED AS ORIGINALLY SUBMITTED, IN WHICH CASE DE MATTEO IS THE LOW BIDDER. IN THIS REGARD, YOU CONTEND THAT ALTHOUGH THE MANAGERS OF THE RESPECTIVE WESTERN UNION OFFICES STATED THAT UNDER NORMAL TRANSMISSION PROCEDURES THE TELEGRAPHIC MODIFICATIONS SHOULD HAVE ARRIVED ON TIME, THEY DID NOT INDICATE THAT THE LATE RECEIPT WAS ABNORMAL AND UNFORESEEABLE. IN THIS CONNECTION YOU CITE TWO OF OUR DECISIONS, 40 COMP. GEN. 290 AND B 150705, FEBRUARY 28, 1963. IN FURTHER SUPPORT OF YOUR POSITION, YOU POINT TO THE SIZE OF THE MODIFICATIONS AS INDICATING THAT THE MODIFICATIONS WERE IN EFFECT THE "REAL" AND "ENTIRELY NEW" BIDS OF THE TWO BIDDERS. AS A FURTHER ARGUMENT, YOU STATE THAT THE BIDDERS "SHOULD BE HELD TO THE VERY LETTER OF THE BIDDING PROCEDURE AND REGULATIONS," OTHERWISE THE GOVERNMENT IS "ENABLING THEM TO BENEFIT FROM "LEAKS" FROM THE OFFICES OF CONTRACTORS WHO HAS CAREFULLY TOED THE LINE.'

THE PERTINENT PROVISIONS OF THE INVITATION ARE INCLUDED IN INSTRUCTION NO. 5 (D) OF THE INSTRUCTIONS TO BIDDERS, WHICH PERMITS TELEGRAPHIC MODIFICATIONS OF BIDS ALREADY SUBMITTED IF RECEIVED AT THE OFFICE DESIGNATED BY THE TIME SET FOR OPENING OF BIDS, AND INSTRUCTION NO. 7, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(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: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE, AND EITHER (2) THEY ARE SENT BY * * * TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO * * * DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE * * *

THE FOLLOWING PROVISIONS, IN PERTINENT PART, OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) APPLICABLE TO THE MATTER UNDER CONSIDERATION ARE: SEC. 1 -2.304 MODIFICATION OR WITHDRAWAL OF BIDS.

(A) BIDS MAY BE MODIFIED * * * BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. A TELEGRAPHIC MODIFICATION * * * OF A BID RECEIVED IN SUCH OFFICE BY TELEPHONE FROM THE RECEIVING TELEGRAPH OFFICE NOT LATER THAN THE TIME SET FOR OPENING OF BIDS SHALL BE CONSIDERED IF SUCH MESSAGE IS CONFIRMED BY THE TELEGRAPH COMPANY BY SENDING A COPY OF THE WRITTEN TELEGRAM WHICH FORMED THE BASIS FOR THE TELEPHONE CALL.

* * * * * * * SEC. 1 2.305 LATE MODIFICATIONS AND WITHDRAWALS.

MODIFICATIONS OF BIDS * * * WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE MODIFICATIONS" * * *. A LATE MODIFICATION * * SHALL BE SUBJECT TO THE RULES AND PROCEDURES APPLICABLE TO LATE BIDS SET FORTH IN SECS. 1-2.303.

* * * * * * * SEC. 1-2.303-2 CONSIDERATION FOR AWARD.

A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

(A) IT IS RECEIVED BEFORE AWARD; AND EITHER

(B) IT WAS SENT BY * * * TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY * * * BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

* * * * * * * SEC. 1 2.303-4 TELEGRAPHIC BIDS.

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 * *

THESE PROVISIONS OF THE INVITATION AND OF THE FPR SET FORTH THE CONDITIONS UNDER WHICH TELEGRAPHIC MODIFICATIONS OF BIDS WILL BE CONSIDERED WHEN RECEIVED LATE. IN INTERPRETING SIMILAR PROVISIONS OUR OFFICE STATED AS FOLLOWS IN 39 COMP. GEN. 586:

THE GENERAL RULE IS THAT TELEGRAPHIC MODIFICATIONS OF BIDS SHOULD BE RECEIVED PRIOR TO THE TIME SET FOR BID OPENING. EXCEPTIONS TO THE RULE TEND TO PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND IT IS THEREFORE INCUMBENT UPON ANY BIDDER WHO SEEKS TO INVOKE AN EXCEPTION TO PROVE THAT HE IS ENTIRELY WITHOUT FAULT OF NEGLIGENCE IN TRANSMITTING A LATE MODIFICATION TO HIS BID. AS INDICATED AT 35 COMP. GEN. 426, THE LATE BIDDER'S LACK OF KNOWLEDGE OF OTHER BIDS IS NOT ENOUGH. THE TELEGRAPHIC BID MODIFICATION MUST HAVE BEEN DEPOSITED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS, AND WHERE THERE IS SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, THAT DELAY MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY REQUIRED BY NORMAL TRANSMISSION PROCEDURE, THE BURDEN OF PROOF OF WHICH IS PLACED UPON THE BIDDER. UNDER THIS EXCEPTION IT IS NOT SUFFICIENT FOR A LATE BIDDER TO SHOW THAT HIS MESSAGE COULD HAVE BEEN TRANSMITTED AND RECEIVED UNDER OPTIMUM CONDITIONS. HE MUST SHOW THAT HIS MESSAGE WAS DEPOSITED SUFFICIENTLY AHEAD OF BID OPENING TIME TO ALLOW FOR ANY NORMAL, USUAL, OR FORESEEABLE DELAYS, AND THAT ITS FAILURE TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION.

THE EVIDENCE SUBMITTED BY NEW ENGLAND CONSTRUCTORS TO SUSTAIN THE BURDEN OF PROOF, AS STATED ABOVE, WAS A TELEGRAM DATED FEBRUARY 25, 1966, AND CONFIRMED BY LETTER DATED MARCH 2, 1966, FROM A. H. VAN WIE, DISTRICT MANAGER OF THE HARTFORD OFFICE OF WESTERN UNION, WHICH IS AS FOLLOWS: THE TELEGRAM IN CONNECTION WITH BID FOR PROJECT NUMBER 06068 SENT BY ERNEST ESCHERT PRESIDENT NEW ENGLAND CONSTRUCTORS 3 EAST MAIN STREETAVON CONN WAS FILED AT 213 PM EST FEBRUARY 24TH IN SUFFICIENT TIME FOR DELIVERY UNDER NORMAL CONDITIONS BY 3PM. DUE TO OPERATIONAL DIFFICULTIES THE MESSAGE WAS DELAYED IN TRANSMISSION. LETTER OF CONFIRMATION WILL FOLLOW.

A H VAN WIE DISTRICT MGR WESTERN UNION IN ADDITION, THE RECORD SUBMITTED BY GSA INCLUDES THE FOLLOWING MEMORANDUM OF THE CONTRACTING OFFICER SETTING FORTH OTHER EVIDENCE CONSIDERED BY HIM IN CONCLUDING THAT THE LATE TELEGRAPHIC MODIFICATION OF THE NEW ENGLAND BID WAS PROPERLY FOR CONSIDERATION IN EVALUATION OF ITS BID:

THIS MORNING I RECEIVED A TELEGRAM FROM MR. A. T. VAN WIE DISTRICT MANAGER OF THE HARTFORD, CONNECTICUT OFFICE OF WESTERN UNION TELEGRAPH COMPANY IN REFERENCE TO LATE MODIFICATION TO THE BID OF NEW ENGLAND CONSTRUCTORS ON THE SUBJECT PROJECT. THE MESSAGE STATED THAT THE OPERATOR HANDLING THE ORIGINAL MESSAGE, AFTER COMPLETING THE LOCALLY PREPARED COPY, REALIZED THE LONG MESSAGE WAS NOT PAGED. THIS REQUIRED A SECOND PREPARATION, THUS CAUSING THE MESSAGE TO GO OVER THE TIME LIMIT.

AFTER RECEIPT OF THIS TELEGRAM, I SPOKE BY TELEPHONE WITH MR. TRYON, OPERATIONS MANAGER AT THE HARTFORD OFFICE, AND ASKED FURTHER INFORMATION ON THE REFERENCE TO PAGING TELEGRAMS. MR. TRYON SAID THAT UNDER THEIR OPERATING PRACTICE ROUTINES ON GSA CIRCUITS MESSAGES OVER A CERTAIN LENGTH REQUIRE PAGING IDENTIFICATION AND A ROUTING INDICATOR CODE AND STATION SERIAL NUMBER ON EACH PAGE. THIS WAS NOT DONE IN THE FIRST TRANSMISSION OF THE TELEGRAM. THE OPERATOR WAS FEARFUL THAT THE MESSAGE WOULD NOT BE ACCEPTABLE TO GSA IF NOT PROPERLY IDENTIFIED AND IMMEDIATELY SENT A SECOND MESSAGE. MR. TRYON SAID THIS IS CLASSED AS A "CONSCIOUS ERROR" AND IS VERY UNUSUAL IN THEIR SYSTEM.

AS BACKGROUND FOR THE DEVELOPMENT OF THIS ERROR, MR. TRYON SAID THAT THE GSA ADVANCED RECORDS SYSTEM CIRCUIT WAS JUST ESTABLISHED IN THEIR OFFICE A FEW DAYS EARLIER. THIS MEANT A CHANGE FROM THEIR BID PROCEDURE AND THERE WAS STILL A LACK OF FAMILIARITY WITH THE SYSTEM AMONGST THEIR OPERATORS. HE SAID THE ERROR WAS MADE BY AN OPERATOR WHO ACTUALLY HAD BEEN AN INSTRUCTOR IN THE NEW SYSTEM, AND ALTHOUGH SHE MADE THE ERROR SHE BECAME AWARE OF IT ALMOST IMMEDIATELY AND REPEATED THE MESSAGE.

I CHECKED WITH THE TELECOMMUNICATIONS OFFICE OF GSA AND VERIFIED THAT THE MESSAGE HAD BEEN INITIATED AND WAS THEN "BUSTED" AT 2:58 P.M. FEBRUARY 24, 1966. THE TERM "BUSTED" MEANS CESSATION OF TRANSMISSION. AFTERWARDS, THE MESSAGE AS RECEIVED WAS REPEATED.

IT IS OUR CONSIDERED OPINION THAT THE FOREGOING EVIDENCE JUSTIFIES THE CONTRACTING OFFICER'S CONCLUSION THAT THE NEW ENGLAND TELEGRAPHIC BID MODIFICATION WAS FILED IN TIME FOR RECEIPT, BY NORMAL TRANSMISSION PROCEDURE, PRIOR TO THE TIME FIXED IN THE INVITATION, AND THAT THE SUBSEQUENT DELAY WAS THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER, BUT WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION.

SINCE THE NEW ENGLAND BID, AS MODIFIED, IS LOW, THE QUESTION INVOLVING MODIFICATION OF FRANKLIN'S BID NEED NOT BE CONSIDERED.

WITH RESPECT TO YOUR RELIANCE ON THE TWO DECISIONS OF OUR OFFICE CITED HERETOFORE, WE BELIEVE THEY ARE READILY DISTINGUISHABLE FROM THE FACTS IN THE INSTANT CASE. IN NEITHER OF THE CITED CASES HAD THE TELEGRAPHIC MODIFICATION ARRIVED AT THE DESIGNATED OFFICE PRIOR TO THE TIME SET FOR OPENING, AND ALL THAT THE EVIDENCE INDICATED WAS THAT THEY COULD HAVE ARRIVED BY BID OPENING TIME BUT IT DID NOT ESTABLISH THAT AND DELIVERY BEYOND THAT TIME WAS ABNORMAL AND UNFORESEEABLE. IN THE INSTANT CASE THE TELEGRAM WAS ACTUALLY RECEIVED IN THE TELECOMMUNICATION OFFICE OF GSA AT :58 P.M., ALTHOUGH TRANSMISSION WAS CEASED AND THEN REPEATED AS ORIGINALLY RECEIVED WITH THE CHANGES IN FORM AS INDICATED HERETOFORE. THIS CLEARLY ESTABLISHES THAT THE TELEGRAM WAS FILED IN TIME FOR RECEIPT PRIOR TO BID OPENING TIME. WE DO NOT BELIEVE THE BIDDER SHOULD BE CHARGED WITH THE DELAY INCIDENT TO THE TELEGRAPH OPERATOR'S DECISION TO "BUST" TRANSMISSION AND REPEAT THE MESSAGE WITH THE CORRECTIONS HERETOFORE NOTED, SINCE THE MODIFICATION WOULD HAVE BEEN ACCEPTABLE IN THE FORM ORIGINALLY RECEIVED AT 2:58 P.M. ALTHOUGH THE AMOUNT OF THE REDUCTION INCLUDED IN NEW ENGLAND'S MODIFICATION WAS SUBSTANTIAL, WE DO NOT BELIEVE THIS FACT ALONG TRANSFORMS THE MODIFICATION INTO AN "ENTIRELY NEW BID.' BIDS WERE REQUIRED BY THE INVITATION TO BE ON THE FORMS FURNISHED AND TELEGRAPHIC BIDS WERE SPECIFICALLY PROHIBITED. MOREOVER, THE TELEGRAPHIC MODIFICATION DID NOT INCLUDE VARIOUS INFORMATION REQUIRED BY THE INVITATION AND THEREFORE WOULD NOT HAVE BEEN RESPONSIVE AS WAS THE BID AS ORIGINALLY SUBMITTED. SINCE YOU HAVE SUBMITTED NO EVIDENCE IN SUPPORT OF THE ALLEGATION THAT NEW ENGLAND'S MODIFICATION, WAS PROMPTED BY KNOWLEDGE OF DE MATTEO'S BID PRICE, WE HAVE GIVEN IT NO CONSIDERATION IN REACHING OUR DECISION.

IN VIEW OF THE FOREGOING WE SEE NO VALID BASIS FOR CANCELLATION OF THE AWARD TO NEW ENGLAND CONSTRUCTORS. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.