B-162627, NOV. 1, 1967

B-162627, NOV. 1, 1967

BIDS - MISTAKES - CORRECTION - TELEGRAPHIC TRANSMISSION ERROR DECISION TO THE POSTMASTER GENERAL CONCERNING PROPRIETY OF CORRECTION OF BID OF JAMES BROOKS MANUFACTURING CO. FOR CONVEYOR BELTS WHEN SUCH CORRECTION WILL RESULT IN DISPLACEMENT OF LOW BIDDER. A BIDDER WHO FURNISHED EVIDENCE FROM ITS RECORDS THAT A TELEGRAPHIC BID MODIFICATION WAS INTENDED TO EXTEND THE DISCOUNT PERIOD TO AN ACCEPTABLE 30 DAY PERIOD RATHER THAN THE SHORTER 10 DAY DISCOUNT PERIOD AS ACTUALLY TRANSMITTED BY THE CARRIER HAS NOT FURNISHED EVIDENCE TO PERMIT CORRECTION OF ITS BID AND THE CONSEQUENT DISPLACEMENT OF THE LOW BIDDER. FOR A TELEGRAPHIC MODIFICATION TO COME WITHIN THE EXCEPTION OF THE PROHIBITION IN FPR 1-2.406-3 (A) (2) AGAINST CORRECTION OF BIDS WHICH DISPLACE OTHER BIDS, THE BIDDER SEEKING CORRECTION MUST ESTABLISH THE TELEGRAPHIC TRANSMISSION ERROR THROUGH INFORMATION PROVIDED BY THE TELEGRAPH COMPANY RATHER THAN THROUGH RECORDS AND DOCUMENTS UNDER THE CONTROL OF THE INTERESTED BIDDER. THE FACT THAT THE BIDDER PREVIOUSLY PERFORMED IN AN ADMIRABLE FASHION AND IS HELD IN HIGH REGARD MAY NOT BE CONSIDERED IN SUCH A CASE. 41 COMP. GEN. 165.

TO MR. POSTMASTER GENERAL:

WE REFER TO A LETTER DATED OCTOBER 5, 1967, FROM THE DIRECTOR, PROCUREMENT DIVISION, BUREAU OF FACILITIES, POST OFFICE DEPARTMENT, REQUESTING AN OPINION WHETHER, UNDER ADVERTISED SOLICITATION NO. 1035 TO PROCURE PORTABLE CONVEYOR BELTS, A TELEGRAPHIC BID AMENDMENT FROM THE JAMES BROOKS MANUFACTURING COMPANY (BROOKS) MAY BE CORRECTED FOR BID EVALUATION PURPOSES WHEN SUCH CORRECTION WILL RESULT IN DISPLACEMENT OF THE APPARENT LOW BIDDER.

BROOKS' ORIGINAL BID FORM INDICATED A 3 PERCENT DISCOUNT FOR PAYMENT WITHIN 10 DAYS, BUT THIS WAS MODIFIED BEFORE BID OPENING TIME, SEPTEMBER 13, 1967, BY A TELEGRAPH AMENDMENT WHICH OFFERED A 5 PERCENT DISCOUNT FOR PAYMENT MADE WITHIN 10 DAYS. OF THE 14 BIDS RECEIVED, THE $451,080.70 GROSS BID OF STEWART-GLAPAT EVALUATED LOWER THAN ANY OTHER BID, INCLUDING BROOKS' GROSS BID OF $449,165.00, FOR STEWART-GLAPAT OFFERED A 2 PERCENT DISCOUNT FOR PAYMENT WITHIN 20 DAYS, OR AN ADJUSTED BID OF $442,059.09, WHILE BROOKS' TELEGRAPHIC OFFER OF A 5 PERCENT DISCOUNT FOR 10-DAY PAYMENT COULD NOT BE CONSIDERED BECAUSE IT FAILED TO SATISFY THE 20-DAY MINIMUM DISCOUNT PERIOD NECESSARY FOR CONSIDERATION UNDER ARTICLE 9, STANDARD FORM 33A, DATED JULY 1966, INCLUDED IN THE SOLICITATION.

BROOKS DOES NOT DISPUTE THE FACT A 3 PERCENT DISCOUNT FOR 10-DAY PAYMENT WAS INDICATED ON THE ORIGINAL BID FORM. HOWEVER, BROOKS CONTENDS ITS TELEGRAPHIC MODIFICATION OF SEPTEMBER 13, 1967, WAS SENT FOR THE EXPLICIT PURPOSE OF EXTENDING THE DISCOUNT PERIOD TO AN ACCEPTABLE 30 DAYS, IN ADDITION TO INCREASING THE DISCOUNT TO 5 PERCENT, AND THAT THE SHORTER 10- DAY PERIOD STATED ON THE TELEGRAM AS RECEIVED WAS THE RESULT OF A TRANSMISSION ERROR BY THE CARRIER, WESTERN UNION. THIS BEING THE CASE, BROOKS CONCLUDES ITS BID SHOULD BE EVALUATED ON THE BASIS OF A 5 PERCENT DISCOUNT, WHICH WOULD MAKE IT $15,352.34 LOWER THAN THE NET EVALUATED BID OF THE APPARENT LOW BIDDER, STEWART-GLAPAT.

AS EVIDENCE OF THE ERROR IN TRANSMISSION, BROOKS HAS SUBMITTED A NUMBER OF ITEMS EVIDENCING ITS BELIEF THE INTENDED MESSAGE WAS TELEPHONICALLY TRANSMITTED IN CORRECT FORM TO THE CINCINNATI OFFICE OF THE TELEGRAPH COMPANY ON SEPTEMBER 13, 1967. THESE INCLUDE THE OFFICE COPY OF THE SOLICITATION FORM CORRECTED TO SHOW A 30-DAY DISCOUNT PERIOD; AN OFFICE TELEPHONE DIARY INDICATING A 30-DAY DISCOUNT PERIOD WAS INCLUDED IN THE MESSAGE CALLED INTO THE LOCAL OFFICE OF THE TELEGRAPH COMPANY ON SEPTEMBER 13, 1967; AND THE SWORN STATEMENTS OF JAMES BROOKS, THE INDIVIDUAL WHO DRAFTED THE TELEGRAPHIC AMENDMENT TO THE BID AND OF JEAN BROOKS, THE INDIVIDUAL WHO TELEPHONED THE TEXT OF THE BID AMENDMENT TO THE TELEGRAPH OFFICE, ALL TO THE SAME EFFECT.

ACCORDING TO THE OCTOBER 5, 1967, REPORT FROM THE POST OFFICE DEPARTMENT, JAMES BROOKS MANUFACTURING COMPANY ENJOYS A REPUTATION FOR INTEGRITY AND HONESTY, SO THAT THERE IS NO REASON TO DOUBT THE VALIDITY OF THE STATEMENTS OR RECORDS FURNISHED AS EVIDENCE OF BROOKS' INTENDED TELEGRAPHIC BID AMENDMENT.

THE GENERAL RULE REGARDING CORRECTION OF BIDS PRIOR TO AWARD PROHIBITING CONSIDERATION OF EVIDENCE EXTRINSIC TO THE BID IF THE CORRECTION WILL RESULT IN THE DISPLACEMENT OF A QUALIFIED LOWER BIDDER IS SET OUT IN PARAGRAPH 1-2.406-3 (A) (2) OF THE FEDERAL PROCUREMENT REGULATIONS AS FOLLOWS:

"A DETERMINATION MAY BE MADE PERMITTING THE BIDDER TO CORRECT HIS BID WHERE THE BIDDER REQUESTS PERMISSION TO DO SO AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. HOWEVER, IF SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER ACCEPTABLE BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE.'

IN AN EXCEPTION TO THIS RULE, THIS OFFICE, IN 41 COMP. GEN. 165, HELD THAT A TELEGRAPHIC BID AMENDMENT WHICH HAD BEEN INCORRECTLY TRANSMITTED BY THE TELEGRAPHIC CARRIER COULD BE CORRECTED TO ACCORD WITH THE MESSAGE RECORDED AT THE ORIGINATING OFFICE OF THE TELEGRAPH COMPANY, EVEN THOUGH SUCH CORRECTION RESULTED IN THE DISPLACEMENT OF THE LOW BIDDER. UNDER SIMILAR CIRCUMSTANCES, IN B-148886 OF MAY 25, 1962, WE PERMITTED THE CORRECTION OF AN ERRONEOUSLY TRANSMITTED TELEGRAPHIC BID MODIFICATION TO CONFORM WITH THE ORIGINAL COPY OF THE TELEGRAM IN THE FILE OF THE ORIGINATING OFFICE OF THE TELEGRAPH CARRIER.

IN THE OPINION OF THIS OFFICE, THE FACT THE MATERIAL EVIDENCING THE INTENDED BID AMENDMENT WAS OBTAINABLE FROM THE RECORDS OF THE DISINTERESTED TELEGRAPH CARRIER IN THE CITED CASES DISTINGUISHES THEM FROM THE CASE AT HAND, WHERE THE INFORMATION COMES SOLELY FROM THE RECORDS OF THE INTERESTED PARTY. THIS INDEPENDENT VERIFICATION OF THE ORIGINAL MESSAGE AND ADMISSION OF ERROR IN TRANSMISSION BY THE TELEGRAPH COMPANY WHICH RESULTED IN THE GOVERNMENT'S RECEIPT OF A MESSAGE VARYING FROM THAT RECEIVED AT THE TRANSMITTING OFFICE, PROVIDES THE GOVERNMENT WITH A RELATIVELY IMPARTIAL MEANS OF ASCERTAINING THE INTENDED MESSAGE. WE FEEL THE CORRECTION OF A BID UNDER SUCH CIRCUMSTANCES IS PERMISSIBLE, AND IS IN KEEPING WITH THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS PERMITTING CONSIDERATION OF LATE TELEGRAPHIC BID AMENDMENTS WHERE IT IS SHOWN THE DELAY WAS DUE SOLELY TO THE TELEGRAPH CARRIER.

WE THEREFORE CONCLUDE THAT FOR A TELEGRAPHIC BID AMENDMENT TO FALL WITHIN THE EXCEPTION (SET OUT IN 41 COMP. GEN. 165) TO THE PROHIBITION OF FPR 1- 2.406-3 (A) (2) AGAINST CORRECTION OF BIDS WHICH DISPLACE OTHER BIDS, THE BIDDER SEEKING CORRECTION MUST CLEARLY ESTABLISH THE TELEGRAPHIC TRANSMISSION ERROR THROUGH INFORMATION PROVIDED BY THE TELEGRAPH COMPANY, RATHER THAN THROUGH RECORDS AND DOCUMENTS UNDER THE CONTROL OF THE INTERESTED BIDDER.

IN THE PRESENT CASE, THE RECORD DOES NOT INDICATE WHETHER WESTERN UNION ACKNOWLEDGES AN ERROR IN TRANSMISSION, OR WHETHER THE TELEGRAPHIC BID AMENDMENT RECEIVED BY THE POST OFFICE DEPARTMENT IN WASHINGTON, D.C. VARIES FROM THE MESSAGE RECORDED AS RECEIVED FROM BROOKS IN THE CINCINNATI OFFICE OF WESTERN UNION. WE THEREFORE MUST CONCLUDE THAT BROOKS HAS NOT FURNISHED ADEQUATE EVIDENCE TO PERMIT CORRECTION OF ITS BID AND THE CONSEQUENT DISPLACEMENT OF THE LOW BIDDER.

THE FACT THAT BROOKS HAS PREVIOUSLY PERFORMED POST OFFICE DEPARTMENT CONTRACTS IN AN ADMIRABLE FASHION, AND IS HELD IN HIGH REGARD, MAY NOT BE CONSIDERED AS A FACTOR IN DETERMINING THE ISSUE AT HAND, FOR WE CANNOT DISTINGUISH BETWEEN THE RIGHTS OF BROOKS AND THOSE OF ANY OTHER RESPONSIVE, RESPONSIBLE CONTRACTOR. AS STATED IN B-157914 OF FEBRUARY 23, 1966, OUR CONCLUSION AS TO THE PROPRIETY OF PERMITTING DOWNWARD CORRECTIONS OF ERRONEOUS BIDS HAS BEEN ARRIVED AT AFTER LONG AND SERIOUS CONSIDERATION, AND WE FEEL THAT THE GENERAL RULE AGAINST DOWNWARD REVISION TO THE PREJUDICE OF ANOTHER BIDDER IS SOUND, EVEN THOUGH ITS APPLICATION MAY APPEAR HARSH IN A PARTICULAR CASE.

ACCORDINGLY, IF OTHERWISE RESPONSIVE AND RESPONSIBLE, THE NET EVALUATED BID OF $442,059.09 OF STEWART-GLAPAT SHOULD BE CONSIDERED THE LOW BID UNDER ADVERTISED SOLICITATION NO. 1035.