B-154451, AUG. 5, 1964

B-154451, AUG. 5, 1964

TO BARCO, COOK AND PATTON, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR REQUEST FOR RECONSIDERATION OF DECISION B 154451 OF JUNE 25, 1964, TO THE CONSTRUCTION CONTRACTING OFFICER, VETERANS ADMINISTRATION (VA), WHEREIN IT WAS DETERMINED THAT THE LATE RECEIVED TELEGRAPHIC BID MODIFICATION FROM CARL E. ERICKSON COMPANY REDUCING THE BID SUBMITTED FOR PROJECT 12-5324 SHOULD BE DISREGARDED IN THE CONSIDERATION OF BIDS.

IT IS YOUR POSITION THAT THE LATE RECEIVED TELEGRAPHIC BID MODIFICATION SHOULD HAVE BEEN CONSIDERED AS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY THE NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE. IN SUPPORT OF THAT POSITION, YOU STATE THAT THE 1 HOUR AND 20-MINUTE TRANSMISSION DELAY BY WESTERN UNION BETWEEN CHICAGO AND THE WASHINGTON TIELINE OPERATOR WAS HIGHLY UNUSUAL AND ABNORMAL AND WAS A DELAY BEYOND THE CONTROL OR ANTICIPATION OF THE BIDDER. IN THAT CONNECTION YOU HAVE INDICATED THAT ON JULY 7 THE TELEGRAPH COMPANY SENT TO THE CONTRACTING OFFICER A TELEGRAM STATING THAT NORMALLY THE LATE RECEIVED TELEGRAM SHOULD HAVE BEEN DELIVERED IN APPROXIMATELY 1 HOUR AND THAT IT WAS DELIVERED LATE DUE TO CIRCUMSTANCES WHICH WERE IN NO WAY THE FAULT OF THE SENDER AND COMPLETELY BEYOND HIS CONTROL. IN VIEW OF THE JULY 7 TELEGRAM, YOU STATE THAT THE DEPOSIT OF THE TELEGRAPHIC MODIFICATION WITH THE TELEGRAPH COMPANY 1 HOUR AND 20 MINUTES BEFORE IT WAS READY TO BE PLACED ON THE TIELINE WOULD PRIMA FACIE ESTABLISH A CONDITION OF ABNORMAL DELAY. YOU STATE FURTHER THAT ON JULY 7 YOUR CLIENT WAS ADVISED BY THE WESTERN UNION REGIONAL MANAGER IN CHICAGO THAT THE COMPANY WAS UNABLE TO GIVE HIM ANY EXPLANATION OR JUSTIFICATION FOR THE DELAY BETWEEN CHICAGO AND WASHINGTON AND THAT ON JULY 8 YOUR CLIENT WAS ADVISED BY A WESTERN UNION OFFICE MANAGER IN WASHINGTON THAT THE TELEGRAM WAS FILED AT 11:56 A.M. C.D.T. ON THE DAY IN QUESTION AND SHOULD HAVE ARRIVED AT THE WESTERN UNION PERFORATION CENTER IN CINCINNATI AT NOON AND AT THE LATEST SHOULD HAVE BEEN TRANSMITTED TO WASHINGTON NOT LATER THAN 12:30 P.M., C.D.T. IN THE LATTER REGARD, YOU STATE THAT WESTERN UNION IN CINCINNATI MAKES TRANSMISSION CHECKS EVERY HALF HOUR SO THAT IF THE TELEGRAM MISSED THE NOON CHECK IT SHOULD HAVE BEEN PICKED UP BY THE 12:30 P.M. CHECK. ANY DELAY IN EXCESS OF THIS MAXIMUM CHECK TIME, YOU STATE, WOULD BE CLEARLY ABNORMAL. IN YOUR OPINION, CITING 40 COMP. GEN. 290, 293, THESE ADDITIONAL FACTS, COUPLED WITH WESTERN UNION'S ADMISSION THAT ONE HOUR IS NORMAL FOR BOTH TRANSMISSION AND DELIVERY, ESTABLISH BEYOND ANY DOUBT THAT THE 1 HOUR AND 20 MINUTE DELIVERY TIME WAS ABNORMAL AND NOT DUE TO NORMAL, USUAL AND FORESEEABLE DELAYS.

AN ADDITIONAL POINT YOU MAKE IS THAT THE DELAY OCCASIONED BY THE WASHINGTON OPERATOR'S ACTION IN SEEKING VERIFICATION OF THE AMOUNT OF THE MODIFICATION FROM CHICAGO SHOULD IN NO WAY BE ATTRIBUTED TO THE BIDDER, SINCE THE ERROR IN THE TELEGRAM WAS NOT MADE BY THE BIDDER AND WAS DUE TO THE FAULT OF THE TELEGRAPH COMPANY AND IS IN NO WAY NORMAL, USUAL OR FORESEEABLE. IN THAT CONNECTION, YOU CITE 37 COMP. GEN. 604.

YOU SUBMIT TOO THAT THE TWENTY-SIX MINUTES RELIED UPON IN OUR DECISION FOR TRANSMISSION VIA THE TIELINE AND THEN FOR TELEPHONIC RELAY BY THE VA TELECOMMUNICATIONS OFFICE TO THE CONTRACTING OFFICER IS AN ABNORMALLY LONG TIME TO RELY UPON. YOU STATE THAT YOU INTERVIEWED SUPERVISORS IN THE VA TELECOMMUNICATIONS ROOM AND THEY TOLD YOU THAT WHEN A TELEGRAPHIC BID MODIFICATION IS RECEIVED OVER THE TIELINE, IT IS IMMEDIATELY TELEPHONED TO THE CONTRACTING OFFICER AND THAT THE ONLY DELAY FACTOR IS THE LENGTH OF TIME IT TAKES FOR A MESSAGE TO BE COMPLETED ON THE TELETYPE MACHINE. YOU STATE FURTHER THAT YOU WERE TOLD BY ONE OF THE SUPERVISORS THAT THE 26- MINUTE DELAY WAS UNUSUALLY LONG AND COULD HAVE BEEN DUE TO A LENGTHY MESSAGE WHICH TOOK SEVERAL MINUTES IN TRANSMISSION. THEREFORE, YOU CONCLUDE THAT IF THE SHORT THREE-LINE MESSAGE WHICH YOUR CLIENT SENT HAD BEEN TRANSMITTED OVER THE TIELINE TWENTY MINUTES BEFORE BID OPENING, THERE WOULD HAVE BEEN MORE THAN SUFFICIENT TIME TO RELAY THE MESSAGE TO THE CONTRACTING OFFICER BEFORE THE DEADLINE, POINTING OUT THAT IT TOOK FOUR MINUTES FOR THE TELEGRAM TO BE TRANSMITTED FROM WASHINGTON WESTERN UNION TO THE VA TELECOMMUNICATIONS OFFICE AFTER IT WAS PLACED ON THE TIELINE AT 5:23 P.M. E.S.T.

FINALLY, RELYING UPON 41 COMP. GEN. 165, YOU SUBMIT THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO AWARD THE CONTRACT TO YOUR CLIENT, PARTICULARLY AS THE TELEGRAM WAS CORRECTLY WORDED BY HIM, AS THE ERROR IN THE TELEGRAM WAS MADE BY THE TELEGRAPH COMPANY, AND AS THE GOVERNMENT STANDS TO SAVE $8,000 BY ACCEPTING THE MODIFICATION.

IN THE EVENT OUR OFFICE IS NOT LED TO FOLLOW THE CONCLUSION YOU HAVE SUGGESTED, YOU REQUEST THAT AN INFORMAL HEARING BE CONVENED TO ALLOW FOR EXAMINATION OF PROPER WITNESSES.

UNDER THE FEDERAL PROCUREMENT REGULATIONS A LATE TELEGRAPHIC MODIFICATION IS PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE RECEIVED ON TIME UNLESS THE BIDDER DEMONSTRATES "BY CLEAR AND CONVINCING EVIDENCE" THAT THE MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE. FURTHER, THE REGULATION PROVIDES THAT WHERE A TELEGRAPHIC MODIFICATION IS RECEIVED LATE AND IT IS NOT CLEAR FROM AVAILABLE INFORMATION WHETHER IT CAN BE CONSIDERED, THE BIDDER IS TO BE NOTIFIED OF THE FACT AND GIVEN A DATE BY WHICH HE IS TO PRESENT CLEAR AND CONVINCING EVIDENCE BEARING UPON THE MATTER. IN ACCORDANCE WITH THE REGULATIONS, ON JUNE 3, THE DAY AFTER THE RECEIPT OF THE LATE TELEGRAPHIC MODIFICATION, THE BIDDER WAS ADVISED BY LETTER THAT IT HAD UNTIL JUNE 10 TO PRESENT CLEAR AND CONVINCING EVIDENCE THAT THE MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURES SO AS NOT TO HAVE BEEN LATE. THE LETTER ALSO STATED THAT THE EVIDENCE FURNISHED MUST GO BEYOND A MERE SHOWING THAT THE MESSAGE WAS FILED EARLY ENOUGH SO THAT IT SHOULD HAVE BEEN DELIVERED AT A CERTAIN TIME UNDER FAVORABLE CONDITIONS AND MUST ESTABLISH THAT THE PARTICULAR MESSAGE WAS DELAYED BY OTHER THAN ROUTINE HANDLING. THE LETTER WAS QUITE SPECIFIC, AS THE REGULATIONS AUTHORIZED IT TO BE, AS TO THE DATE BY WHICH THE NECESSARY EVIDENCE HAD TO BE FURNISHED.

IN THAT REGARD, WE DO NOT FIND THAT THE EVIDENCE CONSIDERED IN OUR JUNE 25 DECISION ESTABLISHED THAT THE TELEGRAM WOULD HAVE ARRIVED ON TIME IF STEPS WERE NOT TAKEN TO CLARIFY THE DISCREPANCY. AS FAR AS WE ARE CONCERNED, BASED UPON THE SHOWING WHICH WAS MADE, THERE IS NO REASON WHY WE SHOULD BELIEVE THAT THE ONE HOUR AND TWENTY-MINUTE TRANSMISSION TIME BETWEEN CHICAGO AND WASHINGTON WAS DUE TO ANYTHING MORE THAN HEAVY TRAFFIC. MOREOVER, THE FACT THAT ANOTHER TELEGRAM RECEIVED PRIOR TO THE OPENING OF BIDS WAS FILED BY ANOTHER BIDDER IN CHICAGO AN HOUR AND TWENTY MINUTES PRIOR TO THE LATE RECEIVED TELEGRAM AND TOOK TWENTY-SIX MINUTES TO GO THE ROUTE OF THE TIELINE AND OF SUBSEQUENT TELEPHONIC ADVICE TO THE CONTRACTING OFFICER BY VA PERSONNEL WAS SUFFICIENT IN OUR OPINION TO CAST SUBSTANTIAL DOUBT THAT YOUR CLIENT'S TELEGRAM WOULD HAVE NECESSARILY RECEIVED MORE EXPEDITIOUS TREATMENT. IN THE FACE OF THAT DOUBT, WE FELT THAT IT WAS SOMETHING LESS THAN "CLEARLY AND CONVINCINGLY ESTABLISHED" THAT THE TWENTY MINUTES THAT REMAINED WAS ADEQUATE TIME FOR YOUR CLIENT'S BID TO REACH THE CONTRACTING OFFICER EVEN BY VOCAL TRANSMISSION BY VA TELECOMMUNICATIONS PERSONNEL. AS A MATTER OF FACT, FOLLOWING THE THEORY OF THE WESTERN UNION COMPANY THAT NORMALLY A TELEGRAM SHOULD BE DELIVERED IN APPROXIMATELY AN HOUR, RELIANCE UPON THE TWENTY-SIX MINUTE TRANSMISSION TIME DOES NOT SEEM INAPPROPRIATE SINCE THE TOTAL ELAPSED TIME FROM THE TIME THAT TELEGRAM WAS FILED IN CHICAGO UNTIL IT WAS ORALLY COMMUNICATED TO THE OFFICE OF THE CONTRACTING OFFICER WAS ONE HOUR AND SIX MINUTES. WHILE YOU HAVE INDICATED THAT ONLY ABOUT FOUR MINUTES ELAPSED FROM THE TIME YOUR CLIENT'S TELEGRAM WAS PLACED ON THE TIELINE UNTIL IT WAS RECEIVED IN THE VA TELECOMMUNICATIONS ROOM AROUND 5:27 P.M., WE BELIEVE THAT THE TIMING ON THE PREVIOUS TELEGRAM WAS MORE PERTINENT SINCE IT WAS CLOSER IN TIME TO THAT TIME OF THE DAY WHEN THE TELEGRAM WOULD HAVE BEEN RECEIVED BUT THE TELEGRAPH COMPANY'S ACTION IN SEEKING VERIFICATION. STATEMENTS OF TELECOMMUNICATIONS ROOM EMPLOYEES NOW REFERRED TO ARE CONJECTURAL AND NOT BASED ON THE ACTUAL FACTS SINCE ACCORDING TO THE STATEMENTS THE EARLY TELEGRAM TOOK LONGER TO PROCESS THAN USUAL BECAUSE IT WAS AN UNUSUALLY LONG MESSAGE. HOWEVER, OUR EXAMINATION REVEALS THAT YOUR CLIENT'S MESSAGE WAS THREE LINES AND THAT THE PREVIOUS TELEGRAM WAS SIX LINES. THE ADDITIONAL THREE LINES IN THE LATTER TELEGRAM IN OUR OPINION DO NOT MAKE AN "UNUSUALLY LONG MESSAGE.'

WHETHER OR NOT THE DELAY OCCASIONED BY WESTERN UNION'S CONFIRMATION OF YOUR CLIENT'S MESSAGE IS ATTRIBUTABLE TO HIM IS NOT PERTINENT TO THIS CASE, SINCE IT IS OUR POSITION THAT IT WAS NOT CLEARLY AND CONVINCINGLY SHOWN THAT IF THE CONFIRMATION HAD NOT OCCURRED THE TELEGRAM UNDER NORMAL TRANSMISSION PROCEDURE WOULD HAVE ARRIVED ON TIME. IF THE CAUSE OF DELAY WAS NOT DUE TO HEAVY TRAFFIC, WHICH IS A BURDEN THE SENDER MUST BEAR, THEN IT MUST BE SHOWN BY POSITIVE EVIDENCE WHAT WAS THE ACTUAL CAUSE OF DELAY.

WHILE YOU CITE 40 COMP. GEN. 290 AS SUPPORTING YOUR POSITION, OUR VIEWS WITH RESPECT TO THAT CASE WERE DISCUSSED IN OUR DECISION OF JUNE 25 SO THAT IT IS NOT NECESSARY TO REPEAT THEM HERE. IT WILL SUFFICE TO SAY THAT, UNDER THE FACTS WHICH WERE BEFORE US FOR CONSIDERATION AT THE TIME OF THAT DECISION, THE CITED CASE REQUIRED THE RESULT WHICH WAS REACHED.

THE CASE IN 41 COMP. GEN. 165 IS DISTINGUISHABLE FROM THE PRESENT ONE ALTHOUGH SIMILAR IN THAT IN BOTH CASES THE TELEGRAM WAS CORRECTLY WORDED BY THE BIDDER AND SOME ERROR WAS MADE IN THE MESSAGE IN TELEGRAPHIC TRANSMISSION. THE IMPORTANT DISTINCTION IS THAT IN THE CITED CASE A GARBLED TELEGRAM WAS RECEIVED TIMELY FOLLOWED BY CLARIFICATION AFTER BID OPENING, WHEREAS IN THE IMMEDIATE CASE NO TELEGRAM WAS RECEIVED UNTIL ALMOST THREE HOURS AFTER OPENING. THEREFORE, IN THE CITED CASE THERE WAS NO QUESTION THAT THE TELEGRAM COULD ARRIVE ON TIME. IT DID ARRIVE ON TIME, ALTHOUGH IN GARBLED FORM. IN THE IMMEDIATE CASE, IT DID NOT ARRIVE ON TIME AND THE EVIDENCE DID NOT ESTABLISH THAT IT WOULD HAVE ARRIVED ON TIME.

YOU HAVE STATED THAT IT WOULD BE IN THE GOVERNMENT'S INTEREST TO ACCEPT YOUR CLIENT'S MODIFICATION SINCE IT WOULD STAND TO SAVE $8,000. HOWEVER, TO ACHIEVE THAT END IT WOULD BE NECESSARY TO DISREGARD THE FEDERAL PROCUREMENT REGULATIONS WHICH REQUIRE THAT BEFORE THE LATE MODIFICATION BE CONSIDERED ACCEPTABLE THE BIDDER OVERCOME THE PRESUMPTION THAT THE TELEGRAM WAS FILED TOO LATE TO BE RECEIVED IN TIME. IN THAT CONNECTION, OUR OFFICE HAS CONSIDERED THAT THE STRICT MAINTENANCE OF COMPETITIVE BID PROCEDURES IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENT PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THOSE RULES. SEE 37 COMP. GEN. 110, 112.

IN VIEW OF THE FOREGOING, THE JUNE 25 DECISION IS SUSTAINED.

AS TO REQUEST FOR AN INFORMAL HEARING TO ALLOW FOR EXAMINATION OF WITNESSES, WHILE IT IS OUR PRACTICE TO MEET INFORMALLY WITH THE PARTIES HAVING AN INTEREST IN THE OUTCOME OF OUR CASES, WE DO NOT CONDUCT HEARINGS FOR THE PURPOSE OF EXAMINING WITNESSES AND DECISIONS OF OUR OFFICE ARE BASED PRIMARILY UPON THE WRITTEN RECORD.