B-159529, DEC. 13, 1967

B-159529, DEC. 13, 1967

BIDS - LATE - TELEGRAPHIC MODIFICATION DECISION TO V.A. CONTRACTING OFFICER AUTHORIZING MODIFICATION OF CONTRACT WITH NATIONAL CONSTRUCTION COMPANY. WHERE A DELAY IN THE TRANSMISSION OF A TELEGRAPHIC BID MODIFICATION INCREASING THE PRICE OF A LOW BID WAS SHOWN TO BE EXCESSIVE, THE CIRCUMSTANCES INDICATE THAT TRANSMISSION PROCEDURES WERE FAULTY AND THAT MESSAGE WOULD HAVE ARRIVED IN AMPLE TIME TO BID OPENING. THEREFORE CONTRACT MAY BE MODIFIED TO REFLECT SPECIFIED INCREASE IN PRICE.

TO MR. FARRAR:

BY DECISION B-159529 OF JULY 6, 1966, TO YOU (46 COMP. GEN. 13), AND BY COPY OF DECISION B-159529 OF OCTOBER 24, 1966, YOU WERE ADVISED THAT THE LATE TELEGRAPHIC BID MODIFICATION FROM THE NATIONAL CONSTRUCTION COMPANY INCREASING ITS BID PRICE UNDER PROJECT 20-5255, SPECIFICATION 6611, BY $50,000 SHOULD BE DISREGARDED IN THE CONSIDERATION OF BIDS.

WITH OR WITHOUT THE $50,000 BID MODIFICATION, NATIONAL CONSTRUCTION COMPANY WAS THE LOW BIDDER ON THE PROJECT. AS A RESULT OF THE JULY 6, 1966, DECISION, A CONTRACT WHICH DID NOT INCLUDE THE $50,000 BID MODIFICATION WAS AWARDED TO THE COMPANY. THE COMPANY PROCEEDED TO PERFORM THE CONTRACT, BUT HAS CONTINUED TO INSIST THAT THE LATE TELEGRAPHIC MODIFICATION SHOULD HAVE BEEN REFLECTED IN THE AWARD MADE TO IT.

THE JULY 6 DECISION HELD THAT THE LATE TELEGRAPHIC MODIFICATION COULD NOT BE CONSIDERED BECAUSE IT WAS REPRESENTED, WITHOUT SUBSTANTIATION BY THE TELEGRAPH COMPANY, THAT THE MODIFICATION WAS DELAYED BECAUSE THE TELEGRAPH LINES WERE "JAMMED UP.' OUR OFFICE INTERPRETED THE FOREGOING TO MEAN THAT THE VOLUME OF BUSINESS WAS SO HEAVY THAT MESSAGES COULD NOT MOVE WITH ORDINARY DISPATCH, A CONDITION, WHETHER SUBSTANTIATED OR NOT, BIDDERS MUST ANTICIPATE AND FOR WHICH THEY BEAR THE RESPONSIBILITY. THE OCTOBER 24 DECISION SUSTAINED THE JULY 6 DECISION, BECAUSE, ALTHOUGH THE INFORMATION SUBSEQUENTLY FURNISHED BY WESTERN UNION ADVISED THAT THERE WAS A DELAY IN TRANSMISSION OF THE BID MODIFICATION, IT DID NOT STATE THAT THE DELAY WAS ABNORMAL. ALSO, WESTERN UNION FAILED TO ADVISE OF THE CAUSE OF DELAY OR WHERE IT OCCURRED, AND IT WAS THEREFORE HELD THAT THE DELAY WAS ATTRIBUTABLE TO THE VOLUME OF BUSINESS AS TO WHICH THE BIDDER WAS RESPONSIBLE.

NOW, THE CONTRACTOR HAS FURNISHED ADDITIONAL STATEMENTS FROM WESTERN UNION. ACCORDING TO THESE STATEMENTS, THE TRANSMISSION OF THE MESSAGE FROM WESTERN UNION, BOSTON, WHERE IT WAS FILED AT 2:59 P.M., TO WESTERN UNION, WASHINGTON, WAS COMPLETED AT 1:19 P.M., AND THAT THEREAFTER WESTERN UNION, WASHINGTON, PLACED THE MESSAGE ON TAPE AT 1:20 P.M. FOR INTERNAL ELECTRONIC TRANSMISSION TO THE VETERANS ADMINISTRATION IN WASHINGTON OVER A DIRECT TIELINE. THE TIME AT WHICH THIS LAST STEP IN TRANSMISSION WAS PERFORMED IS NOT AVAILABLE, BUT IT IS STATED THAT THE RECEIPT BY THE VETERANS ADMINISTRATION IS ALMOST SIMULTANEOUS AND THAT THE TIME WHEN A MESSAGE IS RECEIVED BY THE VETERANS ADMINISTRATION IS AUTOMATICALLY RECORDED AT THE END OF THE MESSAGE BY THE TRANSMITTING EQUIPMENT. HOWEVER, THE MESSAGE WAS REMOVED FROM THE RECEIVING EQUIPMENT BY VETERANS ADMINISTRATION PERSONNEL WITHOUT PRESERVING THAT ESSENTIAL INFORMATION. THE ONLY INFORMATION WHICH NOW EXISTS AS TO THE TIME OF RECEIPT BY THE VETERANS ADMINISTRATION IS THE TIME STAMP PLACED UPON THE MESSAGE BY VETERANS ADMINISTRATION PERSONNEL WHICH SHOWS RECEIPT OF THE MESSAGE AT 2:37 P.M. OR 7 MINUTES AFTER THE SCHEDULED BID OPENING TIME.

WESTERN UNION HAS ADVISED FURTHER THAT, WHILE IT CANNOT EXPLAIN THE CAUSE OF THE DELAY, ITS RECORDS DO NOT INDICATE THAT THE MESSAGE VOLUME WAS SUCH AS WOULD ACCOUNT FOR THE DELAY. IT STATES THAT ITS GOAL IS TO DELIVER TELEGRAMS WITHIN 1 HOUR OF FILING AND THAT IN ACTUAL EXPERIENCE DELIVERY IS ACCOMPLISHED WITHIN 42 MINUTES ON 90 PERCENT OF THE TELEGRAMS. IT HAS STATED ALSO THAT THE DELAY IN TRANSMISSION WAS ABNORMAL.

AS INDICATED ABOVE, WESTERN UNION HAS NOW INDICATED THAT THE MESSAGE VOLUME WAS NOT SUCH AS WOULD ACCOUNT FOR THE DELAY. THUS, THE ASSUMPTIONS UPON WHICH THE JULY 6 AND OCTOBER 24 DECISIONS WERE BASED ARE SUBSTANTIALLY REFUTED. ALTHOUGH THE CAUSE OF DELAY IS NOT EXPLAINED, IT IS APPARENT NOW THAT THE DELAY OCCURRED AFTER THE MESSAGE WAS RECEIVED IN WESTERN UNION, WASHINGTON. THE MESSAGE TOOK AN HOUR AND 17 MINUTES TO BE RECEIVED BY THE VETERANS ADMINISTRATION AFTER IT WAS PLACED ON TAPE BY WESTERN UNION, WASHINGTON. HOWEVER, ALL THAT REMAINED TO BE ACCOMPLISHED AFTER PLACING THE MESSAGE ON TAPE WAS AN INTERNAL ELECTRONIC TRANSMISSION WITHIN WESTERN UNION, WASHINGTON, AND AN ELECTRONIC TRANSMISSION OVER A DIRECT TIELINE TO THE VETERANS ADMINISTRATION. IN THE CIRCUMSTANCES, WE FEEL THAT THE TIME WITHIN WHICH THE MESSAGE WAS HANDLED IN WASHINGTON WAS EXCESSIVE. WHILE THE CAUSE OF THE DELAY HAS NOT BEEN SPECIFICALLY IDENTIFIED, SINCE EXCESSIVE TRAFFIC VOLUME HAS BEEN RULED OUT, WE BELIEVE THAT THE CIRCUMSTANCES REQUIRE A CONCLUSION THAT THE TRANSMISSION PROCEDURES WERE FAULTY AND THAT THE MESSAGE WOULD HAVE ARRIVED IN AMPLE TIME TO MEET THE 2:30 P.M. BID OPENING IN THE ABSENCE OF THE APPARENTLY DELAYED TRANSMISSION.

ACCORDINGLY, IN VIEW OF THE FOREGOING, THE CONTRACT FOR THE SUBJECT PROJECT SHOULD BE MODIFIED TO REFLECT A $50,000 INCREASE IN PRICE.