B-164086, JUL. 10, 1968

B-164086: Jul 10, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DIAMOND AND SYLVESTER: REFERENCE IS MADE TO YOUR LETTER OF JUNE 26. IN OUR DECISION WE HELD THAT A TELEGRAPHIC MODIFICATION OF A BID COULD BE CONSIDERED WHERE THE MODIFICATION WAS DELIVERED TO THE WESTERN UNION IN SEATTLE. THE CORPS OF ENGINEERS WAS NOT APPRISED OF THE RECEIPT OF THE MESSAGE BECAUSE THERE WAS AN APPARENT ERROR IN THE MESSAGE. CONFIRMATION OF THE MESSAGE WAS REQUESTED FROM WESTERN UNION IN SEATTLE AND AFTER CONFIRMATION THE CORPS OF ENGINEERS WAS NOTIFIED AFTER BIDS WERE OPENED OF THE RECEIPT OF THE MESSAGE. IN YOUR LETTER YOU STATE THAT SINCE THE MODIFICATION WAS FILED WITH WESTERN UNION FOR TRANSMISSION ONLY 1 HOUR AND 32 MINUTES PRIOR TO BID OPENING THE MODIFICATION SHOULD NOT HAVE BEEN CONSIDERED SINCE THE ORDINARY TIME ALLOWANCE FOR TRANSMISSION OF A MESSAGE BETWEEN SEATTLE AND ALASKA IS 2 HOURS.

B-164086, JUL. 10, 1968

TO LYCETTE, DIAMOND AND SYLVESTER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1968, REQUESTING, IN EFFECT, THAT WE RECONSIDER OUR DECISION OF JUNE 14, 1968, B-164086, DENYING THE PROTEST OF CHRISTENSON RABER KIEF AND ASSOCIATES, INC., ARISING UNDER INVITATION FOR BIDS NO. DACA85-68-B-0001 ISSUED BY THE CORPS OF ENGINEERS, ANCHORAGE, ALASKA.

IN OUR DECISION WE HELD THAT A TELEGRAPHIC MODIFICATION OF A BID COULD BE CONSIDERED WHERE THE MODIFICATION WAS DELIVERED TO THE WESTERN UNION IN SEATTLE, WASHINGTON, AT 12:28 P.M., A.S.T., AND RECEIVED IN ANCHORAGE, ALASKA, BY THE ALASKA COMMUNICATIONS SYSTEM (ACS) AT 1:03 P.M., A.S.T., 57 MINUTES BEFORE BID OPENING TIME. HOWEVER, THE CORPS OF ENGINEERS WAS NOT APPRISED OF THE RECEIPT OF THE MESSAGE BECAUSE THERE WAS AN APPARENT ERROR IN THE MESSAGE. CONFIRMATION OF THE MESSAGE WAS REQUESTED FROM WESTERN UNION IN SEATTLE AND AFTER CONFIRMATION THE CORPS OF ENGINEERS WAS NOTIFIED AFTER BIDS WERE OPENED OF THE RECEIPT OF THE MESSAGE.

IN YOUR LETTER YOU STATE THAT SINCE THE MODIFICATION WAS FILED WITH WESTERN UNION FOR TRANSMISSION ONLY 1 HOUR AND 32 MINUTES PRIOR TO BID OPENING THE MODIFICATION SHOULD NOT HAVE BEEN CONSIDERED SINCE THE ORDINARY TIME ALLOWANCE FOR TRANSMISSION OF A MESSAGE BETWEEN SEATTLE AND ALASKA IS 2 HOURS. YOU CONTEND THAT OUR PREVIOUS DECISIONS HAVE HELD THAT THE FACT THAT DELIVERY OF THE MESSAGE COULD HAVE BEEN MADE UNDER OPTIMUM CONDITIONS WITHIN THE TIME ACTUALLY ALLOWED WOULD NOT BE SUFFICIENT TO JUSTIFY ACCEPTANCE WHERE THE TIME ALLOWED WAS NOT THAT WHICH IN ORDINARY EXPERIENCE SHOULD HAVE BEEN EXPECTED.

WE AGREE THAT LATE-RECEIVED TELEGRAMS TO BE CONSIDERED ACCEPTABLE SHOULD BE FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO ALLOW FOR ANY NORMAL, USUAL OR FORESEEABLE DELAY OR THOSE DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES ITS WORK.

IN THE INSTANT CASE, HOWEVER, THE TELEGRAM WAS ACTUALLY RECEIVED BY ACS AT ANCHORAGE, ALASKA, 57 MINUTES BEFORE BID OPENING TIME. CONSEQUENTLY, IT IS CLEAR THAT THE TELEGRAM WAS FILED IN SUFFICIENT TIME EVEN THOUGH IT WAS FILED LESS THAN 2 HOURS BEFORE BID OPENING. AS WE POINTED OUT IN OUR DECISION OF JUNE 14, 1968, THE RECORD SHOWS CONCLUSIVELY THAT THE FAILURE OF ACS TO FOLLOW ITS NORMAL PROCEDURE OF NOTIFYING THE CORPS OF ENGINEERS THAT A TELEGRAPHIC BID MODIFICATION HAD BEEN RECEIVED WAS, TO A LARGE EXTENT, THE CAUSE OF THE DELAY IN DELIVERY OF THE TELEGRAM TO THE BID OPENING ROOM. IN VIEW THEREOF, WE ARE OF THE OPINION THAT THE BIDDER SHOULD NOT BE PENALIZED FOR THE ERROR OF THE ACS.