B-159911, SEP. 16, 1966

B-159911, SEP. 16, 1966

TO VAN COTT, BAGLEY, CORNWALL AND MCCARTHY:

REFERENCE IS MADE TO YOUR LETTER AND TELEGRAM OF AUGUST 22, 1966, REQUESTING RECONSIDERATION OF OUR DECISION B-159911 OF AUGUST 24, 1966, TO CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION, WHEREIN WE HELD THAT THE LATE TELEGRAPHIC BID MODIFICATION RECEIVED FROM THE JERICO CONSTRUCTION COMPANY REDUCING THE AMOUNT OF ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. 292-67-5 SHOULD BE DISREGARDED IN MAKING AN AWARD UNDER THE INVITATION.

IT IS YOUR POSITION THAT THE LATE TELEGRAPHIC BID MODIFICATION SHOULD HAVE BEEN CONSIDERED AS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION SO AS TO HAVE BEEN RECEIVED BY THE GOVERNMENT AT THE TIME OF BID OPENING. IN SUPPORT OF THAT POSITION, YOU STATE THAT THE TWO LETTERS FURNISHED TO THE ATOMIC ENERGY COMMISSION BY WESTERN UNION, WHICH ARE QUOTED IN OUR AUGUST 24 DECISION, CLEARLY STATE THAT THE TELEGRAPHIC MODIFICATION WAS SENT IN AMPLE TIME AND THAT UNDER NORMAL CONDITIONS THE TELEGRAM COULD HAVE BEEN DELIVERED PRIOR TO OR BY 2:00 P.M., ON JULY 26, 1966, THE DATE OF BID OPENING. YOU STATE THAT IT APPEARS OBVIOUS THAT THE REASON FOR THE DELAY IN THE TRANSMISSION OF THE TELEGRAM WAS THE FACT THAT THE TELEGRAPH COMPANY WAS EXPERIENCING PEAK LOAD CONDITIONS AND ALSO HAD RECENTLY RELOCATED A CERTAIN PART OF ITS OPERATIONS, WHICH YOU ALLEGE, CONTRIBUTED TO THIS DELAY. IN THIS REGARD, YOU ADVISE THAT YOU HAVE BEEN ADVISED BY OFFICIALS OF WESTERN UNION THAT ADDITIONAL INFORMATION CONCERNING THE COMPANY'S RESPONSIBILITY IN THIS MATTER WOULD BE SENT DIRECTLY TO OUR OFFICE FOR OUR CONSIDERATION. REGARD TO THE LATTER, WE HAVE RECEIVED FROM WESTERN UNION A TELEGRAM DATED AUGUST 22, 1966, IN WHICH THE DISTRICT MANAGER, SALT LAKE CITY, UTAH, ADVISES AS FOLLOWS:

"THE FOLLOWING IS A CLARIFICATION OF THE TWO LETTERS DATED JULY 28, 1966 AND AUGUST 2, 1966 WHICH WE WROTE AT MR. CLYDE'S REQUEST TO MR. ALLAN G. ELSIK, CONTRACTING OFFICER, U.S. ATOMIC ENERGY COMMISSION, P.O. BOX 5400, SANDIA BASE, ALBUQUERQUE, NEW MEXICO, RELATIVE THE SAME TELEGRAM.

"/1) WE WOULD LIKE TO EMPHASIZE THE FACT THAT WE BELIEVE THAT THE TELEGRAM IN QUESTION COULD HAVE BEEN DELIVERED IN TONOPAH IN TIME.

"/2) WE BELIEVE THAT THE MESSAGE WAS DELAYED IN DELIVERY BEYOND A NORMAL TIME DUE TO THE CHANGE OF THE RELAY SYSTEM TO PORTLAND, OREGON, ON THE 25TH OF JULY, WHICH WAS UNUSUAL AND THE FACT THAT WE HAD AN UNUSUALLY HEAVY FILE OF MESSAGES IN OUR OFFICE AT RENO, NEVADA, PARTLY DUE TO THE BID LETTING AT TONOPAH.

"WE BELIEVE THE MESSAGE IN QUESTION COULD HAVE BEEN DELIVERED PRIOR TO THE BID OPENING TIME. WE, OF COURSE, WILL NEVER GUARANTEE DELIVERY AT A SPECIFIC TIME, THOUGH WE TRY TO DO THIS. NOT KNOWING CIRCUMSTANCES SURROUNDING DELIVERY, WE CANNOT GUARANTEE DELIVERY WITHIN A SPECIFIED TIME ON ANY TELEGRAM.'

ALTHOUGH THE DISTRICT MANAGER OF WESTERN UNION'S SALT LAKE CITY OFFICE DOES STATE THAT THE CHANGE IN THE RELAY SYSTEM CONTRIBUTED TO THE CAUSE OF THE DELAY, IT IS NOTED THAT THE DISTRICT MANAGER ALSO STATES THAT THE DELAY WAS DUE TO THE FACT THAT THE RENO OFFICE HAD AN UNUSUALLY HEAVY FILE OF MESSAGES BECAUSE OF THE BID OPENING AT TONOPAH, NEVADA. IN THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE DELAY IN DELIVERY OF JERICO'S TELEGRAPHIC BID MODIFICATION WAS PRIMARILY DUE TO THE HEAVY VOLUME OF BUSINESS, FOR WHICH CONDITION WE HAVE HELD A BIDDER MUST BEAR THE RESPONSIBILITY. SEE B-159529, DATED JULY 6, 1966, COPY HEREWITH.

WE HAVE HELD THAT THE BIDDER HAS THE BURDEN OF PROOF TO SHOW THAT THE FAILURE OF A TELEGRAPHIC BID MODIFICATION TO ARRIVE BEFORE BID OPENING WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION. 39 COMP. GEN. 586; 40 ID. 290; ID. 337. UNLESS AND UNTIL THAT BURDEN OF PROOF IS MET BY THE BIDDER, THE TELEGRAPHIC BID MODIFICATION MUST BE REGARDED AS LATE AND, AS SUCH, MAY NOT BE CONSIDERED IN MAKING AN AWARD. IN THE PRESENT CASE, JERICO HAS NOT, IN OUR OPINION, SUSTAINED THE REQUIRED BURDEN OF PROOF.

ACCORDINGLY, WE FIND NO BASIS TO MODIFY THE CONCLUSION REACHED IN OUR DECISION OF AUGUST 24, 1966.