B-159408, AUG. 19, 1966

B-159408: Aug 19, 1966

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED JULY 12. (A) PROPOSALS AND MODIFICATIONS RECEIVED AT THE OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE CLOSE OF BUSINESS ON THE DATE SET FOR RECEIPT THEREOF (OR AFTER THE TIME SET FOR RECEIPT IF A PARTICULAR TIME IS SPECIFIED) WILL NOT BE CONSIDERED UNLESS: "/I) THEY ARE RECEIVED BEFORE AWARD IS MADE. EITHER "/II) THEY ARE SENT BY REGISTERED MAIL. IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS. FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE. WAS FOUND TO HAVE SUBMITTED THE LOWEST BID IN THE AMOUNT OF $2. WAS FOUND TO HAVE SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $2.

B-159408, AUG. 19, 1966

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JULY 12, 1966, FROM THE DEPUTY ASSISTANT SECRETARY OF THE INTERIOR, FURNISHING A REPORT ON THE PROTEST OF LYCETTE, DIAMOND AND SYLVESTER, ATTORNEYS-AT-LAW, SEATTLE, WASHINGTON, ON BEHALF OF B-E-C-K-RABER-KIEF, AGAINST THE PROPOSED REJECTION OF A LATE TELEGRAPHIC BID MODIFICATION SUBMITTED BY THAT COMPANY IN RESPONSE TO AN INVITATION FOR BIDS (NO. GAS-1/66) COVERING THE CONSTRUCTION OF THE AMERICAN SAMOA TROPICAL MEDICAL CENTER, FAGA ALU VILLAGE, TUTUILA ISLAND, AMERICAN SAMOA.

THE SUBJECT INVITATION, AS AMENDED, ADVISED INTERESTED PARTIES THAT SEALED BIDS FOR THE WORK INVOLVED WOULD BE RECEIVED UNTIL 2:00 P.M. P.D.T., MAY 17, 1966, IN THE OFFICE OF THE AGENT FOR GOVERNMENT OF AMERICAN SAMOA, BUILDING 101, FORT MASON, SAN FRANCISCO, CALIFORNIA, AND AT THAT TIME PUBLICLY OPENED.

PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS ADVISED ALL BIDDERS AS FOLLOWS:

"LATE PROPOSALS.

(A) PROPOSALS AND MODIFICATIONS RECEIVED AT THE OFFICE DESIGNATED IN THE REQUEST FOR PROPOSALS AFTER THE CLOSE OF BUSINESS ON THE DATE SET FOR RECEIPT THEREOF (OR AFTER THE TIME SET FOR RECEIPT IF A PARTICULAR TIME IS SPECIFIED) 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; AND, IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE OFFEROR WAS NOT RESPONSIBLE; OR

UPON THE OPENING OF BIDS AT THE SCHEDULED TIME, SWINERTON AND WALBERG CO. WAS FOUND TO HAVE SUBMITTED THE LOWEST BID IN THE AMOUNT OF $2,297,627, AND B-E-C-K-RABER-KIEF, HEREINAFTER REFERRED TO AS B-E C-K, WAS FOUND TO HAVE SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $2,500,000. HOWEVER, AT 2:10 P.M. OF THE DATE ON WHICH BIDS WERE OPENED THE AGENT FOR GOVERNMENT OF AMERICAN SAMOA RECEIVED A TELEGRAM FROM B-E-C-K ADVISING OF THE REDUCTION OF ITS BID BY THE SUM OF $283,000TO $2,217,000. IF THE TELEGRAPHIC MODIFICATION IS CONSIDERED B E-C-K IS THE LOWEST BIDDER BY $80,627.

IN REGARD TO THE TRANSMISSION OF ITS TELEGRAM, B-E-C-K HAS SUBMITTED A COPY OF A LETTER DATED MAY 26, 1966, FROM THE WESTERN UNION TELEGRAPH COMPANY, SEATTLE, WASHINGTON, SIGNED BY ITS REGIONAL SUPERVISOR (ADMINISTRATION), IN WHICH IT IS STATED THAT THE MESSAGE WAS RECEIVED OVER A DESK FAX INTO THE SEATTLE TELEGRAPH OFFICE AT 12:42 P.M., P.D.T. AND WAS TRANSMITTED AT 12:51 .M., P.D.T. THE MESSAGE WAS SPECIFIED FOR DELIVERY PRIOR TO 2:00 P.M., MAY 17, 1966. IT ALSO IS STATED IN THE LETTER THAT THE MESSAGE WAS NOT RECEIVED AT THE TELEGRAPH COMPANY'S VAN NESS OFFICE UNTIL 1:43 P.M.; AND THAT SINCE ALL MESSENGERS WERE OUT AN ATTEMPT WAS MADE TO TELEPHONE THE MESSAGE, BUT THAT SUCH ATTEMPT FAILED BECAUSE NO TELEPHONE WAS LISTED FOR THE AGENT FOR THE GOVERNMENT OF AMERICAN SAMOA. IT IS FURTHER REPORTED THAT A TAXICAB WAS THEN CALLED TO DELIVER THE MESSAGE AND THAT THE TAXI LEFT THE VAN NESS BRANCH OFFICE AT 2:01 P.M. THE MESSAGE WAS DELIVERED TO THE AGENT FOR THE GOVERNMENT OF AMERICAN SAMOA AT 2:10 P.M. THE TOTAL ELAPSED TIME BETWEEN THE TIME OF FILING THE MESSAGE AND RECEIPT THEREOF WAS ONE HOUR AND 28 MINUTES.

THE RECORD SHOWS THAT THE ATTORNEY GENERAL OF AMERICAN SAMOA RENDERED AN OPINION THAT THE TELEGRAPHIC MODIFICATION SUBMITTED BY B-E-C-K SHOULD NOT BE CONSIDERED SINCE IT WAS RECEIVED 10 MINUTES AFTER THE TIME SET FOR BID OPENING. ALSO, IN AN OPINION DATED JUNE 8, 1966, THE DIRECTOR OF SURVEY AND REVIEW, DEPARTMENT OF THE INTERIOR, STATED THAT THE LATE TELEGRAPHIC BID MODIFICATION SUBMITTED BY B-E-C-K SHOULD BE DISREGARDED ESPECIALLY SINCE THE TELEGRAPH COMPANY DID NOT ADMIT ANY FAULT OR DELAY ATTRIBUTABLE TO ITS HANDLING OF THE MESSAGE.

IN AN AFFIDAVIT DATED JULY 20, 1966, MR. JOHN C. ENDRES, ENGINEER ESTIMATOR FOR B-E-C-K, STATES THAT MR. D. J. BLEVINS, REGIONAL SUPERVISOR (ADMINISTRATION), THE WESTERN UNION TELEGRAPH COMPANY, SEATTLE, WASHINGTON, HAD ADVISED HIM THAT IT WAS HIS OPINION THAT AFTER THE MESSAGE WAS TRANSMITTED TO THE OAKLAND TERMINAL, IT WAS SENT TO THE SAN FRANCISCO MAIN OFFICE RATHER THAN TO THE VAN NESS BRANCH OFFICE WHERE IT SHOULD HAVE GONE, AND FOR THAT REASON IT WAS NOT ACTUALLY RECEIVED IN THE VAN NESS BRANCH OFFICE UNTIL 1:43 P.M.; THAT THE MESSAGE SHOULD HAVE LEFT THE OAKLAND TERMINAL AND BEEN IN THE VAN NESS BRANCH OFFICE WITHIN 10 MINUTES AFTER IT WAS RECEIVED IN THE OAKLAND OFFICE; AND THAT THE PROPER ROUTING WOULD HAVE PLACED THE TELEGRAM IN THE VAN NESS OFFICE AT 1:01 P.M. INSTEAD OF 1:43 P.M., THE TIME IT WAS ACTUALLY RECEIVED.

SUBSEQUENT TO THE RECEIPT OF THE ADMINISTRATIVE REPORT, B-E-C-K'S ATTORNEYS SUBMITTED TO OUR OFFICE A NOTARIZED LETTER DATED AUGUST 10, 1966, WHICH THE COMPANY RECEIVED FROM THE WESTERN UNION TELEGRAPH COMPANY, SEATTLE, WASHINGTON. IN THAT LETTER, MR. D. J. BLEVINS, REGIONAL SUPERVISOR (ADMINISTRATION), STATED AS FOLLOWS:

"THIS REFERS TO YOUR TELEGRAM OF MAY 17, 1966 TO AGENT FOR THE GOVERNMENT OF AMERICAN SAMOA AT SAN FRANCISCO, CALIFORNIA.

"THE MESSAGE WAS FILED WITH US BY YOUR OFFICE AT 12:42 PM, IN SUFFICIENT TIME TO HAVE ALLOWED US TIME TO DELIVER IT BY THE 2:00 PM DEADLINE, AND IT SHOULD HAVE BEEN DELIVERED BY 1:42 PM.

"SINCE THE MESSAGE WAS SENT FROM SEATTLE INTO OUR AUTOMATIC SWITCHING SYSTEM AT 12:51 PM AND WAS NOT RECEIVED AT THE VAN NESS BRANCH OFFICE IN SAN FRANCISCO UNTIL 1:43 PM, IT IS MY OPINION THAT THE MESSAGE WAS MISROUTED BY THE SWITCHING CENTER AT OAKLAND TO THE SAN FRANCISCO MAIN OFFICE AND WAS THEN RESENT BY THE SAN FRANCISCO MAIN OFFICE TO THE BRANCH OFFICE ON VAN NESS AVENUE, WHICH HANDLES DELIVERIES TO FORT MASON. THE RELAY FILES IN THE SAN FRANCISCO MAIN OFFICE HAVE BEEN DESTROYED, AND I AM UNABLE TO OBTAIN THE RECORDS TO SUBSTANTIATE MY CONTENTION.'

THE TEST AS TO WHETHER A TELEGRAPHIC BID MODIFICATION RECEIVED LATE IS ACCEPTABLE IS THREEFOLD. FIRST, THE BID MODIFICATION MUST HAVE BEEN FILED WITH THE TELEGRAPH COMPANY IN TIME FOR RECEIPT BY BID OPENING TIME BY NORMAL TRANSMISSION PROCEDURE. SECOND, THERE MUST BE A SUBSEQUENT DELAY BY THE TELEGRAPH COMPANY THROUGH NO FAULT OR NEGLECT ON THE PART OF THE BIDDER. THIRD, THE DELAY IN TRANSMISSION MUST BE ABNORMAL DELAY OR TIME BEYOND THAT USUALLY ENCOUNTERED UNDER NORMAL TELEGRAPHIC PROCEDURES. COMP. GEN. 290; 39 COMP. GEN. 586. HENCE, A LATE TELEGRAPHIC BID MODIFICATION MUST REASONABLY MEET ALL THREE OF THE ABOVE CRITERIA IN ORDER TO BE AN ACCEPTABLE LATE TELEGRAPHIC BID. WE BELIEVE THAT THE INFORMATION BEFORE US SATISFACTORILY ESTABLISHES THAT THE MODIFICATION WAS FILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED IN NORMAL TRANSMISSION BEFORE BID OPENING; THAT THE DELAY IN TRANSMISSION WAS THE FAULT OF THE TELEGRAPH COMPANY, AND THAT SUCH DELAY WAS DUE TO MISROUTING WHICH RESULTED IN EXCESSIVE TRANSMISSION TIME THAT WAS ABNORMAL UNDER THE CIRCUMSTANCES.

THEREFORE, THE TELEGRAPHIC BID MODIFICATION SUBMITTED BY B-E-C-K PROPERLY MAY BE CONSIDERED IN MAKING AN AWARD.

THE FILE ENCLOSED WITH THE JULY 12 REPORT IS RETURNED HEREWITH AS REQUESTED.