B-168521, JANUARY 7, 1970, 49 COMP. GEN. 417

B-168521: Jan 7, 1970

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WHICH IS ALLEGED TO HAVE BEEN INTENDED AS A DECREASE. ABSENT A SHOWING THE MESSAGE DELIVERED ORIGINALLY BY THE TELEGRAPH COMPANY WAS NOT THE MESSAGE TELEPHONED BY THE BIDDER. THE EXCEPTION TO THE PROHIBITION IN SECTION 1-2.406-3(A)(2) OF THE FEDERAL PROCUREMENT REGULATIONS THAT PERMITS A BID CORRECTION THAT DISPLACES LOWER BIDS WHEN THE ERROR IS ESTABLISHED THROUGH INFORMATION PROVIDED BY THE TELEGRAPH COMPANY RATHER THAN BY THE INTERESTED BIDDER DOES NOT APPLY. AFTER BIDS ARE OPENED AND BIDDERS' PRICES DISCLOSED. 1970: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 28. THE INVITATION WAS ISSUED ON AUGUST 7. A TELEGRAM WAS RECEIVED BY CONTRACTING OFFICIALS WHICH READ AS FOLLOWS: IN REGARD TO INVITATION #GS-03B-12673.

B-168521, JANUARY 7, 1970, 49 COMP. GEN. 417

BIDS -- MISTAKES -- CORRECTION -- LOW BID DISPLACEMENT A TELEGRAM RECEIVED PRIOR TO BID OPENING INCREASING THE BID PRICE FOR JANITORIAL SERVICES, WHICH IS ALLEGED TO HAVE BEEN INTENDED AS A DECREASE, AND IF SO CONSIDERED THREE LOWER BIDS WOULD BE DISPLACED TO MAKE THE CORRECTED PRICE THE LOWEST SUBMITTED, MAY NOT BE TREATED AS A PRICE DECREASE ON THE BASIS THE MISTAKE OCCURRED IN THE TRANSMISSION OF THE BID AMENDMENT, ABSENT A SHOWING THE MESSAGE DELIVERED ORIGINALLY BY THE TELEGRAPH COMPANY WAS NOT THE MESSAGE TELEPHONED BY THE BIDDER, OR A CERTIFICATION BY THE TELEGRAPH COMPANY THAT WOULD SUPPORT THE ALLEGATION OF ERROR IN THE BID PRICE MODIFICATION. THEREFORE, THE EXCEPTION TO THE PROHIBITION IN SECTION 1-2.406-3(A)(2) OF THE FEDERAL PROCUREMENT REGULATIONS THAT PERMITS A BID CORRECTION THAT DISPLACES LOWER BIDS WHEN THE ERROR IS ESTABLISHED THROUGH INFORMATION PROVIDED BY THE TELEGRAPH COMPANY RATHER THAN BY THE INTERESTED BIDDER DOES NOT APPLY. BIDS -- DISCARDING ALL BIDS -- COMPELLING REASONS ONLY THE INTEREST OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRE THAT, AFTER BIDS ARE OPENED AND BIDDERS' PRICES DISCLOSED, INVITATIONS SHOULD BE CANCELED ONLY FOR THE MOST COGENT AND COMPELLING REASONS, AND THE FACT THAT ONE BIDDER MADE A MISTAKE IN BID DOES NOT REPRESENT A COGENT OR COMPELLING REASON FOR REJECTING ALL BIDS AND READVERTISING A PROCUREMENT.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, JANUARY 7, 1970:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 28, 1969, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, FURNISHING A REPORT RELATIVE TO THE PROTESTS OF RICE CLEANING SERVICE (RICE), DYNAMIC INTERNATIONAL, INC. (DYNAMIC), AND AAPROVED MAINTENANCE SERVICE, INC. (AAPROVED), WITH RESPECT TO INVITATION FOR BIDS NO. GS-03B-12673, ISSUED BY THE PUBLIC BUILDINGS SERVICE, BUILDINGS OPERATION DIVISION, WASHINGTON, D.C.

THE RECORD DISCLOSES THAT THE INVITATION SOLICITED BIDS FOR JANITORIAL CLEANING SERVICES FOR THE GENERAL SERVICES ADMINISTRATION (GSA) REGIONAL OFFICE BUILDING AND THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT BUILDING, WASHINGTON, D.C. THE INVITATION WAS ISSUED ON AUGUST 7, 1969, AND PROVIDED, IN ACCORDANCE WITH ADDENDUM NO. 1, FOR BID OPENING ON AUGUST 28, 1969, AT 1:30 P.M. PRIOR TO BID OPENING, AT 10:31 A.M. ON THE BID OPENING DATE, A TELEGRAM WAS RECEIVED BY CONTRACTING OFFICIALS WHICH READ AS FOLLOWS:

IN REGARD TO INVITATION #GS-03B-12673, REGIONAL OFFICE BUILDING AND

HOUSING AND URBAN DEVELOPMENT BUILDING WASHINGTON D. C. WE WISH TO

INCREASE ALL BID ITEMS UNDER THE INVITATION 2-1/10 PERCENT

RICE CLEANING SERVICE JAMES E RICE OWNER

AT THE TIME OF BID OPENING, THIS TELEGRAPHIC MODIFICATION WAS READ ALOUD, AND THE BID ABSTRACT DATED AUGUST 28, 1969, SIGNED BY THE PURCHASING OFFICER DISCLOSED THE FOLLOWING BID PRICES REPRESENTING TOTAL AGGREGATE BIDS FOR THE TWO BUILDINGS ON A PER MONTH BASIS, LISTED IN THE ORDER OPENED:

ADVANCE BUILDING MAINTENANCE CO. $57,400.00

AAPROVED MAINTENANCE SERVICE, INC. 56,026.56

ALL-PRODUCTS CO.--NO BID

SPRINGFIELD BUILDING MAINTENANCE, INC. 59,400.00

SPRINGFIELD WHITE CASTLE CO. 58,887.00

DYNAMIC INTERNATIONAL, INC. 54,988.00

RICE CLEANING SERVICE 57,218.64

NASH JANITORIAL SERVICES, INC. 56,815.85

THE ABSTRACT REVEALS THAT RICE'S ORIGINAL BID PRICE OF $56,041.76 WAS INCREASED BY THE TIMELY TELEGRAPHIC MODIFICATION BY $1,176.88, RESULTING IN THE ABSTRACTED BID PRICE OF $57,218.64. TWO REPRESENTATIVES OF RICE IN ATTENDANCE AT THE BID OPENING, UPON THE READING OF THE TELEGRAPHIC MODIFICATION CALLING FOR A BID PRICE INCREASE, STATED THAT IT HAD BEEN THEIR COMPANY'S INTENTION TO DECREASE THE BID PRICE, RATHER THAN INCREASE IT. AS INCREASED, RICE'S BID BECAME THE FOURTH LOW BID RECEIVED; HOWEVER, IF DECREASED, IT WOULD BECOME THE LOW BID, DISPLACING THREE APPARENTLY ACCEPTABLE LOWER BIDDERS. ON AUGUST 28, 1969, AT 3:57 P.M., GSA RECEIVED A TELEGRAM FROM MISS L. M. HARRIS, MANAGER OF THE WESTERN UNION TELEGRAPH COMPANY AT MCMINNVILLE, TENNESSEE, WHO ORIGINALLY RECEIVED THE MESSAGE FROM MR. RICE'S SECRETARY AND MRS. HARRIS TRANSMITTED THE TELEGRAPHIC MODIFICATION TO THE ADDRESSEE. THE TELEGRAM AS TRANSMITTED READ AS FOLLOWS:

IN REGARD TO TELEGRAM THIS AM RICE CLEANING SERVICE CALLED TO CONFIRM

THEIR 2-1/10 PERCENT DECREASE. THEY MADE OUR OFFICE AWARE WE HAD

MADE AN APPARENT ERROR IN SENDING THIS WIRE. THE WORDING SHOULD HAVE

BEEN A 2-1/10 PERCENT DECREASE INSTEAD OF INCREASE. OUR OFFICE

CONFIRMS WE MADE THIS MISTAKE

ON THE SAME DATE, AT 6:52 P.M., THE FOLLOWING TELEGRAM WAS RECEIVED BY CONTRACTING OFFICIALS FROM THE TELEGRAPH COMPANY AT MCMINNVILLE:

REF OUR CT MCC003 SMITHVILLE TENN AUG 28 907A CDT TO GEN VCS

ADMINISTRATION RDGON 3 RM 7122 7TH AND D STS SOUTHWEST SGD RICE

CLEANING SVC JAMES E RICE OWNER. SNDR CALLED ABT MIXUP IN MSG SHUD

READ QUOTE "WE WISH TO DECREASE ALL BID ITEMS UNDER THE INVITATION

2-1/10 PERCENT" UNQUOTE RPT WE SIH TO DECREASE ALL BID ITEMS UNDER THE

INVITATION 2-1/10 PERCENT. UNQUOTE. PLS CORRECT AND VERIFY CORRECTION IT IS NOTED THAT THE ORIGINAL OF THE FOREGOING MESSAGE PREPARED AT THE MCMINNVILLE OFFICE CONCLUDED WITH THE PHRASE "OUR ERROR," WHILE THE TRANSMITTED TELEGRAM DID NOT. SUBSEQUENTLY, ON AUGUST 29 AT 5:07 P.M., GSA RECEIVED THE FOLLOWING TELEGRAM:

HEREWITH COPY OF OUR MCC003 (PDF SMITHVILLE TENN AUG 28 907A CDT

GENERAL SVCS ADMINISTRATION (DLV BEFORE 1230P CDT AND RPT DLY IMMY)

REGION 3 RM 7122 7TH AND D STS SOUTHWEST WASHDC. IN REGARD TO INVITATION

#GS-03B-XXX INVITATION GS-03B-12673, REGIONAL OFFICE BUILDING

AND HOUSING AND URBAN DEVELOPMENT BUILDING WASHINGTON, D. C. WE WISH

TO DECREASE ALL BID ITEMS UNDER THE INVITATION 2-1/10 PERCENT.

SGD RICE CLEANING SVC JAMES E. RICE OWNER

BY LETTER DATED SEPTEMBER 5, 1969, TO GSA, THE ATTORNEY FOR RICE REQUESTED THAT RICE'S BID BE CORRECTED AND AWARD BE MADE TO HIS CLIENT AS LOW BIDDER. RICE CITES IN SUPPORT OF ITS POSITION OUR DECISION AT 41 COMP. GEN. 165 (1961). IT CONTENDS THAT THE CITED DECISION SHOULD BE READ IN CONNECTION WITH THE "SWORN STATEMENT DATED 28 AUGUST 1969 *** SUBMITTED *** BY MISS L. M. HARRIS, MANAGER, OF THE TELEGRAPH COMPANY AT MCMINNVILLE, TENNESSEE." THAT STATEMENT ADDRESSED TO MR. RICE, OWNER OF THE RICE CLEANING SERVICE, AND SWORN TO BE TRUE AND CORRECT STATES: DEAR MR. RICE:

IN REGARD TO TELEGRAM CONCERNING INVITATION NO. GS-03B-12673. REGIONAL OFFICE BUILDING AND HOUSING AND (URBAN) DEVELOPMENT BUILDING, WE REGRET OUR ERROR IN TRANSMITTING TELEGRAM WEDNESDAY AM AUGUST 28, 1969. OUR APPARENT ERROR WAS MADE IN TRANSMITTING THIS TELEGRAM. WE SHOULD HAVE USED THE WORD DECREASE INSTEAD OF INCREASE. THE WIRE SHOULD HAVE READ. "WE WISH TO DECREASE ALL BID ITEMS UNDER THE INVITATION BY 2.1 PER CENT."

THIS LETTER AND OUR WIRE TO GENERAL SERVICES ADMINISTRATION WILL CONFIRM OUR MISTAKE.

SINCERELY YOURS,

WESTERN UNION TELEGRAPH COMPANY,

(SIGNED) L. M. HARRIS

L. M. HARRIS, MANAGER.

THE RECORD DISCLOSES THAT THIS LETTER WAS PREPARED BY RICE PERSONNEL FOR THE SIGNATURE OF L. M. HARRIS. DYNAMIC, BY TELEGRAM TO GSA, RECEIVED SEPTEMBER 3, 1969, STATED THAT IT WAS PROTESTING FAVORABLE CONSIDERATION OF RICE'S MISTAKE IN BID ALLEGATION. APPROVED, ANOTHER BIDDER, BY LETTER DATED SEPTEMBER 2, 1969, SIGNED BY ITS ATTORNEY, PROTESTED ANY CHANGE IN THE WORDING OF THE TELEGRAPHIC MODIFICATION FROM "INCREASE" TO "DECREASE." THE MATTER HAS BEEN SUBMITTED TO OUR OFFICE AS A DOUBTFUL CASE FOR ADVANCE DECISION UNDER THE AUTHORITY OF SECTION 1-2.406-3(E) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

THE BASIC ISSUE IN THIS CASE IS WHETHER CORRECTION OF THE TIMELY TELEGRAPHIC MODIFICATION RECEIVED PRIOR TO BID OPENING BY RICE SHOULD BE PERMITTED. FPR SEC. 1-2.406-3(A)(2) PROVIDES THAT A BID MAY BE CORRECTED WHERE 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, CORRECTION MAY NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF. THE INSTANT INVITATION IN ARTICLE 5, GSA FORM 1467A, PERMITS TELEGRAPHIC MODIFICATION OF BIDS. 41 COMP. GEN. 165, SUPRA, CITED BY RICE, CREATED AN EXCEPTION TO THIS RULE AGAINST THE DISPLACEMENT OF LOWER BIDDERS BY BID CORRECTION. THE DECISION HELD THAT AN ERROR MADE BY THE TELEGRAPH COMPANY IN TRANSMITTING A BID TO THE CONTRACTING AGENCY COULD BE CORRECTED ON THE GROUND THAT THE MISTAKE WAS NOT ATTRIBUTABLE TO THE BIDDER, BUT TO AN INDEPENDENT AGENCY OVER WHICH THE BIDDER HAD NO EFFECTIVE CONTROL. THEREAFTER, IN B-148886, MAY 25, 1962, OUR OFFICE CONSIDERED A SIMILAR CASE INVOLVING AN ERRONEOUS TELEGRAPHIC TRANSMISSION OF A BID MODIFICATION. IN THAT CASE, THE EVIDENCE DISCLOSED THAT WESTERN UNION HAD INCORRECTLY TRANSMITTED THE INTENDED BID PRICE MODIFICATION, BASED UPON A VERIFAX COPY OF THE ACTUAL TELEGRAM FILED BEFORE TRANSMITTAL WHICH REFLECTED THE INTENDED BID. WE CONCLUDED THAT THE EVIDENCE CLEARLY ESTABLISHED THAT THE ONUS OF MISTAKE WAS WITH WESTERN UNION AND HELD THAT THE BID SHOULD BE CONSIDERED FOR AWARD, CITING 41 COMP. GEN. 165. FURTHER DISCUSSED 41 COMP. GEN. 165 IN B-162627, NOVEMBER 1, 1967. THAT DECISION INVOLVED AN ALLEGED MISTAKEN TELEGRAPHIC MODIFICATION, WHEREIN THE BIDDER SUBMITTED A NUMBER OF DOCUMENTS EVIDENCING ITS BELIEF THAT THE INTENDED MESSAGE WAS TELEPHONICALLY TRANSMITTED IN CORRECT FORM TO THE TELEGRAPH COMPANY'S OFFICE. WE CONSTRUED 41 COMP. GEN. 165 TO STAND FOR THE PRINCIPLE THAT A TELEGRAPHIC BID AMENDMENT INCORRECTLY TRANSMITTED BY THE TELEGRAPH CARRIER COULD BE CORRECTED TO ACCORD WITH THE MESSAGE RECORDED AT THE ORIGINATING OFFICE OF THE TELEGRAPH COMPANY EVEN THOUGH CORRECTION RESULTED IN THE DISPLACEMENT OF THE LOW BIDDER.

THE RATIONALE TO BE DERIVED FROM THE CITED CASES IS THAT FOR A TELEGRAPHIC BID AMENDMENT TO FALL WITHIN THE EXCEPTION (SET OUT IN 41 COMP. GEN. 165) TO THE PROHIBITION OF FPR SEC. 1-2.406-3(A)(2) AGAINST CORRECTION OF BIDS WHICH DISPLACE OTHER LOWER 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. COMPARE, IN THIS REGARD, B-162740, JANUARY 17, 1968, WHERE THE WORDING OF A TELEGRAM AS ORIGINALLY DELIVERED TO THE GOVERNMENT ALLEGEDLY RESULTED FROM A "PHONE MISUNDERSTANDING." WE HELD THAT SINCE THE TELEGRAPH COMPANY HAD NO RECORD TO SHOW THAT THE MESSAGE DELIVERED ORIGINALLY WAS NOT THE MESSAGE TELEPHONED IN BY THE BIDDER, THE TELEGRAPH COMPANY'S CERTIFICATION THAT A CORRECTED MESSAGE WAS THE INTENDED MESSAGE COULD NOT BE ACCEPTED SO AS TO PERMIT BID CORRECTION BASED ON THE CORRECTED MESSAGE.

IT IS OUR OPINION THAT THE EVIDENCE IN THIS CASE DOES NOT SUPPORT THE POSITION URGED BY RICE. THE WESTERN UNION TELEGRAPH COMPANY FORWARDED TO THE CHIEF OF THE CONTRACTUAL SERVICES BRANCH OF GSA, A DOCUMENTED REPORT ON THE INCIDENT. IN ACCORDANCE WITH OUR PRIOR DECISIONS, WE MUST LOOK TO THE RECORDS OF THE TELEGRAPH COMPANY IN ORDER TO ASCERTAIN WHETHER OR NOT AN ERROR WAS IN FACT MADE BY THE TELEGRAPH COMPANY IN THE TRANSMISSION OF THE MODIFICATION. IN A STATEMENT DATED SEPTEMBER 16, 1969, L. M. HARRIS, THE MANAGER OF THE WESTERN UNION OFFICE AND THE PERSON WHO TRANSCRIBED THE ORIGINAL MESSAGE, DESCRIBED THE INCIDENT IN DETAIL TO HER COMPANY SUPERVISOR AS FOLLOWS:

AUGUST 28, 1969 APPROXIMATELY 9 AM CDT SECRETARY OF MR JAMES RICE

OWNER OF RICE CLEANING SERVICES SMITHVILLE TENN, FONED MY OFFICE AND

STATED SHE WISHED TO SEND A WIRE AND WANTED THE MESSAGE DELIVERED

WISHED TO HAVE A REPORT DELIVERY OF MESSAGE. AFTER COMPLETING THE

MESSAGE, (IN THE USUAL MANNER OF HANDLING WIRES FROM THIS OFFICE) I

REREAD THE MESSAGE TO SECRETARY. THE SECRETARY SAID MESSAGE WAS

CORRECT AND TO SEND IT ON IMMEDIATELY PLEASE. APPROXIMATELY 2-3 HOURS

BEFORE 1230P CDT OR NOT DELIVERED AT ALL. SECRETARY, ALSO STATED SHE

LATER, THE SAME SECRETARY TELEPHONED MY OFFICE AGAIN SAYING THAT

THERE HAD BEEN AN ERROR IN SENDING THE MESSAGE AND ASK ME TO READ

MY COPY BACK TO SECRETARY. I REREAD THE MESSAGE AND UPON ENDING,

SECRETARY "OH MY GOODNESS, THERE HAS BEEN A TERRIBLE MIXUP," MY COPY

READS DECREASE ALL BID ITEMS ETC. SECRETARY STATED THAT SHE HAD HER

COPY RIGHT IN FRONT OF HER AND THAT SHE DISTINCTLY REMEMBER READING

DECREASE AND THAT SHE KNEW FOR A POSITIVE FACT THAT I REREAD IT THE

SAME WAY. I STATED THAT MY COPY HAD INCREASE AND THAT WAS THE WAY I

TRANSMITTED THE MESSAGE. SECRETARY, STATED THAT I HAD MISUNDERSTOOD HER

AND THAT SHE WAS ALMOST POSITIVE I READ THE MESSAGE BACK AS DECREASED.

SECRETARY THEN STATED THAT MR RICE WOULD HAVE TO BE INFORMED AND THAT

HE WOULD BE UPSET AND WOULD PROBABLY WISH TO TALK WITH ME CONCERNING

THE ERROR.

APPROXIMATELY 25-30 MINUTES LATER MR. RICE TELEPHONED MY OFFICE/

MR. RICE INFORMED ME THERE WAS AN ERROR AND ASK IF I KNEW ABOUT IT. I

STATED THAT HIS SECRETARY HAD FONED MY OFFICE AND TOLD ME OF THE

MIXUP AND I ALSO STATED THAT I REREAD THE MESSAGE TO HIS SECRETARY

WHEN HE GAVE IT TO ME, THAT SECRETARY TOLD ME MESSAGE WAS CORRECT AND TO

RELEASE IT. MR. RICE ASKED ME TO READ THE MESSAGE TO HIM, WHICH I

DID. MR. RICE SAID, THAT HIS REPRESENTATIVE HAD FONED AND SAID THE

JOB WAS THEIRS IF MESSAGE READ DECREASE INSTEAD OF INCREASE 2.1

PERCENT. AT THIS TIME MR. RICE, STATED THAT HIS SECRETARY WAS

LOYAL, AND A VERY EFFICIENT EMPLOYEE. THAT ALL HIS EMPLOYEES WERE

AWARE THAT INFORMATION CONCERNING BID MATTERS WERE VERY IMPORTANT.

HE ASK IF I WOULD SEND A CORRECTION NOTICE, STATING THAT I MADE THE

ERROR WHICH I AGREED TO DO, STATING THAT IT PROBABLY WOULDN'T HELP

BECAUSE MESSAGE HAD ALREADY BEEN RECEIVED, MR. RICE STATED, THAT

HE WOULD APPRECIATE IT, IF I WOULD GO AHEAD AND SEND A CORRECTION

NOTICE, STATING THAT I HAD MADE THE ERROR. WHEN I WAS HESITANT ABOUT SAYING I MADE THE ERROR, MR. RICE STATED THAT HE WAS POSITIVE HIS

SECRETARY SAID DECREASE BECAUSE SHE WAS A VERY EFFICIENT SECRETARY

AND HAD BEEN WITH HIM SEVERAL YEARS. APPROXIMATELY 15-20 MINUTES

LATER MR. RICE AGAIN TELEPHONED MY OFFICE AND ASK IF I HAD SENT THE

CORRECTION NOTICE. I STATED I HAD, WHICH HE ASK ME TO READ TO HIM,

WHICH I DID. MR. RICE THEN STATED THAT MESSAGE READ AS IF WE HAD

CHANGED THE WORDING OF THE MESSAGE TEXT AND ASK IF I WOULD SEND

ANOTHER WIRE TO THE OFFICE OF GENERAL SERVICES, WASHINGTON, D. C. AND STATE THAT THE ERROR WAS MY FAULT. APPROXIMATELY 10 MINUTES

LATER MR. RICE, SECRETARY TELEPHONED MY OFFICE STATING THAT MR.

RICE WOULD LIKE FOR ME TO HAVE THE MESSAGE, WHERE I STATED THE ERROR

WAS MY FAULT, CERTIFIED AND MAILED TO BID OFFICE. SECRETARY, SAID

MR. RICE FELT LIKE THE GOVERNMENT WOULD NOT ACCEPT THE TELEGRAM. THE

SECRETARY AGAIN STATED THAT SHE WAS POSITIVE SHE UNDERSTOOD MY

SAYING DECREASE 2.1 PERCENT WHEN REREADING MESSAGE TO HER.

STATED THAT I DIDN'T BELIEVE IT WOULD BE NECESSARY TO CERTIFY MESSAGE,

THAT A WIRE SHOULD BE SUFFICIENT. SECRETARY STATED, MR. RICE SAID

THE GOVERNMENT WERE FUSSY PEOPLE TO WORK WITH AND THE WIRE WOULD

NOT BE ENOUGH. I STATED THAT I WOULD HAVE TO TALK WITH MY AREA

SUPERVISOR BUT I DIDN'T THINK A CERTIFY LETTER WOULD BE NECESSARY.

I THEN CALLED KNOXVILLE AND TALKED WITH MR. HELSEY. MR. HELSEY STATED

THAT A CERTIFIED LETTER WOULD NOT BE NECESSARY AND THAT MY WIRE

SHOULD BE SUFFICIENT. I STATED TO MR. HELSEY THAT I COULD NOT BE

POSITIVE THAT THE ERROR WAS MINE AND THAT I DID NOT WISH TO SIGN A

CERTIFIED STATEMENT TO THAT FACT. MR. HELSEY, STATED THAT IT WOULD

NOT BE NECESSARY FOR ME TO SIGN, THAT THE WIRE SHOULD BE SUFFICIENT

FOR MR. RICE. I TELEPHONED SECRETARY OF MR. RICE AND INFORMED HER OF MY

CONVERSATION WITH MR. HELSEY, APPROXIMATELY 30 MINUTES LATER MR. HELSEY

TELEPHONED MY OFFICE AND STATED HE HAD TALKED WITH MR. RICE AND HE FELT

THAT I COULD SIGN LATER WITHOUT ANY PROBLEM. I AGAIN STATED TO MR.

HELSEY THAT I DIDN'T WISH TO SIGN CERTIFIED STATEMENT. MR. HELSEY, SAID

"YOU CAN USE YOUR OWN JUDGEMENT BUT WE HAVE HAD OTHER SITUATIONS OF

SUCH MATTERS BEFORE"/UPON THIS STATEMENT FROM MR. HELSEY, I FELT THAT

THIS WAS SUFFICIENT GROUNDS TO SIGN STATEMENT MR. RICE TELEPHONED MY

OFFICE AND STATED HE HAD TALKED WITH MR. HELSEY AND MR. HELSEY INFORMED

HIM IT WOULD BE OKAY FOR ME TO SIGN CERTIFIED STATEMENT. APPROXIMATELY

15 MINUTES LATER MR. RICE SECRETARY TELEPHONED MY OFFICE AND STATED THAT

A MR. WALKER, THEIR OFFICE MANAGER WOULD COME BY THE NEXT MORNING AND

BRING AN NOTARY PUBLIC WITH HIM AND COPIES OF LETTER TO BE CERTIFIED TO

SAVE ME THE TROUBLE OF HAVING TO FOOL WITH LOCATING AND ALSO TYPING A

LETTER. MR. WALKER CAME BY WITH ONE ORIGINAL, 3 CARBON COPIES, BUT NO

NOTARY PUBLIC, AND STATED THAT HE WAS GOING OUT OF TOWN AFTER STOPPING AT

NOTARY PUBLIC AND WOULD MAIL ME A COPY LATER.

I CANNOT HONESTLY AND TRUTHFULLY SAY THAT I MADE THE ERROR.

L. M. HARRIS. IN A LETTER DATED SEPTEMBER 18, 1969, MR. R. L. HELSLEY STATED: MR. MAJURE KNOXVILLE, TENNESSEE

THIS HAS FURTHER REFERENCE TO YOUR INQUIRY AS TO MY SUGGESTION TO MISS HARRIS AT MCMINNVILLE REGARDING THE COMPLAINT THAT SHE HAD FROM MR. RICE.

I DID NOT REPEAT DID NOT SUGGEST TO MISS HARRIS THAT SHE SIGN ANY AFFIDAVIT. MISS HARRIS CALLED FOR YOU AS I PREVIOUSLY TOLD YOU, AND THEN REQUESTED TO TALK TO ME, AND SHE DID TELL ME THAT SHE HAD MADE AN ERROR IN THE MESSAGE BUT HAD GOTTEN IT CORRECTED. SHE WAS FIXING TO WRITE MR. RICE INFORMING HIM OF THE FACT THAT SHE HAD HANDLED BY SERVICE MESSAGE AND HAD RECEIVED INFORMATION BACK THAT A CORRECTION HAD BEEN MADE. I DO NOT KNOW WHAT WAS INVOLVED IN THE MESSAGE NEITHER DO I KNOW JUST WHAT SHE WROTE MR. RICE. I DID INFORM HER THAT I SAW NOTHING WRONG WITH CERTIFYING HER SIGNATURE ON THE LETTER SHE WAS WRITING TELLING HIM THAT SHE HAD RECEIVED INFORMATION A CORRECTION HAD BEEN MADE WITH THE ADDRESSEE. NOTHING WAS EVEN MENTIONED IN MY CONVERSATION WITH HER ABOUT AN AFFIDAVIT.

R. L. HELSLEY.

RICE CONTENDS THAT "ON SEVERAL OCCASIONS PRIOR TO 16 SEPTEMBER, 1969, ON WHICH DATE MISS L. M. HARRIS SUBMITTED A CONTRADICTORY STATEMENT, SHE CLEARLY AND UNEQUIVOCALLY AFFIRMED THE FACT THAT SHE HAD ERRONEOUSLY USED THE WORD 'INCREASE' IN PLACE OF THE WORD 'DECREASE' IN THE BID MODIFICATION MESSAGE." IT CITES IN SUPPORT THEREOF, THE TELEGRAM RECEIVED AT GSA ON AUGUST 28, 1969, AT 6:52 P.M., WITHOUT THE LANGUAGE "OUR ERROR" IN THE ORIGINAL MESSAGE; THE TELEGRAM RECEIVED AT GSA ON AUGUST 28, 1969, AT 3:57 P.M. CONTAINING THE WORDS "OUR OFFICE CONFIRMS WE MADE THIS MISTAKE"; THE TELEGRAPH OPERATOR'S CONTEMPORANEOUS CORRECTION OF HER OFFICE COPY OF THE ORIGINAL BID MESSAGE, STRIKING OUT THE WORD "INCREASE" AND SUBSTITUTING "DECREASE"; AND THE AUGUST 28, 1969, STATEMENT SIGNED BY THE TELEGRAPH OPERATOR.

WE HAVE THOROUGHLY REVIEWED THE FILE AS SUBMITTED AND SUPPLEMENTED AND CANNOT CONCLUDE THAT THE DOCUMENTED EVIDENCE CLEARLY AND CONCLUSIVELY REVEALS THAT A MISTAKE HAD BEEN MADE BY THE WESTERN UNION OPERATOR IN THE TRANSMISSION OF THE TELEGRAPHIC MODIFICATION. IN HER SEPTEMBER 16, 1969 STATEMENT, MRS. HARRIS STATED "I CANNOT HONESTLY AND TRUTHFULLY SAY THAT I MADE THE ERROR." WE HELD IN B-162740, SUPRA, THAT AN ERROR DUE TO A "PHONE MISUNDERSTANDING" IS CLEARLY NOT A CLERICAL-TYPE ERROR WHICH IS CONTEMPLATED BY THE REGULATIONS. IN ALL CASES, AS CITED ABOVE, WHERE CORRECTION HAS BEEN ALLOWED, TANGIBLE PRETRANSMISSION EVIDENCE IN THE FILES OF THE TELEGRAPH COMPANY HAS BEEN AVAILABLE TO SUPPORT THE ALLEGATION OF ERROR. HERE, THE TELEGRAPH OPERATOR CONCLUDES THAT SHE CANNOT HONESTLY AND TRUTHFULLY STATE THAT SHE MADE THE ERROR AND, TO THE BEST OF HER RECOLLECTION, DOES NOT THINK THAT SHE MADE THE ERROR. QUOTED BELOW IS THE FULL TEXT OF A TELEGRAM TO GSA FROM J. B. PENNSE, AREA VICE PRESIDENT OF WESTERN UNION, WHICH, WE FEEL, UNEQUIVOCALLY DISPOSES OF THE PROTEST.

MR GEORGE MARSHALL OF DUNN NORTH CAROLINA HAS REQUESTED US TO SEND YOU

A STATEMENT WITH RESPECT TO A CERTAIN BID MSG FILED APPROX 9 AM BY

THE RICE CLEANING SERVICE OF SMITHVILE TENN THE MSG IN QUESTION

WAS FILED AT OUR MCMINNVILLE TENN OFFICE. WE UNDERSTAND THAT MR

MARSHALL IS A COMPETITOR OF THE RICE CLEANING SERVICE. MR MARSHALL

WISHES WESTERN UNION TO ADVISE YOU IF RICE CLEANING USED THE WORD

QUOTE INCREASE UNQUOTE OR THE WORD QUOTE DECREASED UNQUOTE IN THE BID

MSG WHEN RICE FILED IT OVER THE TELEPHONE WE UNDERSTAND THAT THE

FIRST MSG RECEIVED BY GSA USED THE WORD QUOTE INCREASE UNQUOTE BUT

THAT THE MGR OF WESTERN UNION'S MCMINNVILE TENN OFFICE SUBSEQUENTLY

SENT A SERVICE MSG IN WHICH SHE ADVISED YOU THAT THE WORD SHOULD HAVE

READ QUOTE DECREASED UNQUOTE. WU HAS EXAMINED THE ORIGINAL MSG AS

RECORDED OVER THE TELEPHONE BY THE MCMINNVILLE TENN MGR AND THAT MSG

CONTAINS THE WORD QUOTE INCREASED UNQUOTE. WE HAVE NOT BEEN ABLE TO

DETERMINE ALL THE FACTS AS OF THIS TIME OR DISCUSS THE MATTER

WITH THE MCMINNVILLE TENN MGR AS SHE IS ON VACATION. WESTERN UNION WILL

ATTEMPT TO DETERMINE ALL OF THE FACTS AS SOON AS POSSIBLE AND WILL

ADVISE YOU FURTHER

IN THIS REGARD, OUR EXAMINATION OF A COPY OF THE ORIGINAL MESSAGE DISCLOSES THAT THE TELEGRAPH OPERATOR TYPED THE WORD "INCREASE." CANNOT DISREGARD THE OBVIOUS EFFECT OF THIS DISCLOSURE, COUPLED WITH THE ACTUAL TRANSMISSION OF THE WORD "INCREASE."

SINCE THE TELEGRAPH COMPANY HAS NO RECORD TO SHOW THAT THE MESSAGE DELIVERED ORIGINALLY WAS NOT THE MESSAGE TELEPHONED IN BY THE BIDDER, THE SUBSEQUENT CERTIFICATIONS DO NOT SUPPORT THE REQUESTED BID CORRECTION. THE RECORD BEFORE US, THE EXISTENCE OF THE ERROR OR THE INTENDED BID CANNOT BE ESTABLISHED EITHER FROM THE FACE OF THE BID AS TIMELY TELEGRAPHICALLY MODIFIED, OR FROM ANY EVIDENCE FURNISHED BY RICE. ACCORDINGLY, CORRECTION OF THE RICE BID IS NOT AUTHORIZED.

RICE CONTENDS THAT GSA'S SUBMISSION OF THE MATTER TO OUR OFFICE IS PREMATURE IN THAT THE AGENCY FAILED TO TAKE ANY ACTION ITSELF BEFORE SUBMISSION. THEREFORE, IT URGES THAT THE FILE SHOULD BE RETURNED TO GSA FOR AN INITIAL DECISION AND FOR ITS CONSIDERATION OF REBIDDING THE PROCUREMENT AS ONE OF THE ALTERNATIVES.

AS STATED, SUPRA, FPR SEC. 1-2.406-3(E) PERMITS SUBMISSION OF MATTERS TO OUR OFFICE FOR ADVANCE DECISIONS IN ACCORDANCE WITH AGENCY PROCEDURES. WITH RESPECT TO RICE'S SUGGESTION THAT REBIDDING BE CONSIDERED BY GSA, WE HAVE HELD ON NUMEROUS OCCASIONS THAT THE INTEREST OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRE THAT, AFTER BIDS ARE OPENED AND BIDDERS' PRICES DISCLOSED, INVITATIONS SHOULD BE CANCELED ONLY FOR THE MOST COGENT AND COMPELLING REASONS. 36 COMP. GEN. 364 (1956); B-167132, JUNE 16, 1969. SEE, ALSO, FPR SEC. 1-2.404-1. WE DO NOT THINK THE FACT THAT ONE BIDDER HAS MADE A MISTAKE IN HIS BID REPRESENTS A COGENT OR COMPELLING REASON FOR REJECTING ALL BIDS AND READVERTISING.

IN ACCORDANCE WITH THE FOREGOING, THE BID PRICE OF RICE CLEANING SERVICE SHOULD BE EVALUATED IN THE AMOUNT OF $57,218.64. THE ATTACHMENTS FORWARDED WITH THE LETTER ARE RETURNED AS REQUESTED.