B-151008, MAR. 27, 1963

B-151008, MAR. 27, 1963

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED MARCH 7, 1963, WITH ENCLOSURES, FROM THE ACTING ADMINISTRATOR, AGRICULTURAL RESEARCH SERVICE, REQUESTING A DECISION AS TO WHETHER RELIEF MAY BE GRANTED IN THE FORM OF A $2,600 INCREASE IN THE AMOUNT OF CONTRACT NO. 12-14-100-6950 (33) ENTERED INTO WITH THE ICKES-BRAUN GREENHOUSE MFG. CO.

THE AGRICULTURAL RESEARCH SERVICE, WASHINGTON, D.C., BY INVITATION NO. ARS-88-B-63 REQUESTED BIDS TO BE OPENED AT 2 P.M., FEBRUARY 1, 1963, FOR FURNISHING THE NECESSARY LABOR AND MATERIALS FOR THE CONSTRUCTION OF A GREENHOUSE AT THE NORTHERN GRAIN INSECTS RESEARCH LABORATORY, BROOKINGS, SOUTH DAKOTA. THE LOWEST BID RECEIVED WAS SUBMITTED BY ICKES-BRAUN GREENHOUSE MFG.CO. (HEREINAFTER REFERRED TO AS ICKES-BRAUN), CHICAGO, ILLINOIS, IN THE TOTAL AMOUNT OF $42,600 FOR BASIC BID ITEM 1 PLUS ALTERNATE 1A. THE FIVE OTHER BIDS RANGED FROM $48,115 TO $58,169. LETTER DATED FEBRUARY 5, 1963, ICKES-BRAUN WAS NOTIFIED THAT ITS AGGREGATE BID OF $42,600 FOR BASIC BID ITEM 1 AND ALTERNATE 1A HAD BEEN ACCEPTED.

BY LETTER DATED FEBRUARY 8, 1963, ICKES-BRAUN ACKNOWLEDGED RECEIPT OF THE NOTICE OF AWARD AND ADVISED THAT THE CONTRACT PRICE SHOWN THEREON WAS INCORRECT IN THAT IT SHOULD HAVE BEEN SHOWN AS BEING $45,200 SINCE THE COMPANY, PRIOR TO AWARD, HAD BY TELEGRAM INCREASED ITS PRICES ON BASIC BID ITEM 1 AND ALTERNATE 1A. THE COMPANY STATED THAT IT WAS EVIDENT THAT ITS TELEGRAM WAS RECEIVED BY THE CONTRACTING OFFICE ON TIME SINCE IT WAS SENT BY THE COMPANY ON THE DAY BEFORE THE DATE DESIGNATED FOR OPENING OF BIDS. THE COMPANY REQUESTED THAT A CHANGE ORDER BE ISSUED FOR THE PURPOSE OF SHOWING THE CORRECT CONTRACT PRICE FOR THE WORK.

BY LETTER DATED FEBRUARY 12, 1963, THE CONTRACTING OFFICE ADVISED ICKES- BRAUN THAT IT HAD NOT RECEIVED ANY TELEGRAM FROM THE COMPANY INCREASING ITS BID PRICES; THAT AT THE TIME WHEN THE COMPANY ASKED FOR A TABULATION OF BIDS THE CONTRACTING OFFICER DID NOT GIVE THE COMPANY THE FIGURES IN ITS BID, BUT RATHER READ ALL THE OTHER PRICES RECEIVED FROM THE OTHER BIDDERS; THAT IT HAD CHECKED WITH THE DEPARTMENT OF AGRICULTURE TELEGRAPH OFFICE AND THAT SUCH OFFICE ADVISED THAT IT HAS NO RECORD OF RECEIVING THE COMPANY'S TELEGRAM EITHER ON JANUARY 31 OR FEBRUARY 1, 1963. THE CONTRACTING OFFICE ALSO REPORTS THAT SINCE THE COMPANY'S TELEGRAM CONCEIVABLY COULD HAVE BEEN SENT DIRECTLY TO THE AGENCY'S OFFICE IN THE GENERAL SERVICES ADMINISTRATION BUILDING, 7TH AND D STREETS, S.W., WASHINGTON, D.C., IT ALSO CHECKED WITH THE GENERAL SERVICES ADMINISTRATION TELEGRAPH OFFICE WHICH ADVISED THAT IT HAS NO RECORD OF THE RECEIPT OF SUCH TELEGRAM. THE RECORD ALSO INDICATES THAT THE WESTERN UNION TELEGRAPH COMPANY'S OFFICE IN WASHINGTON, D.C., HAS NO RECORD OF RECEIVING THE TELEGRAM IN QUESTION.

THE RECORD SHOWS THAT A TELEGRAM DATED FEBRUARY 15, 1963, AND IDENTIFIED AS A "DUPLICATE BACK DATE MESSAGE CHICAGO ILLINOIS JANUARY 31," WAS RECEIVED BY THE CONTRACTING OFFICE FROM THE CHICAGO OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY AND THAT THE CONTRACTING OFFICE ADVISED THE LOCAL OFFICE OF THE TELEGRAPH COMPANY THAT THE ORIGINAL TELEGRAM OR AN AUTHENTIC COPY THEREOF WAS REQUIRED BY THAT OFFICE. BY LETTER DATED FEBRUARY 19, 1963, THE WESTERN UNION CUSTOMER SERVICE MANAGER IN CHICAGO, ILLINOIS, TRANSMITTED TO THE CONTRACTING OFFICE A PHOTOSTATIC COPY OF A NIGHT LETTER FILED BY ICKES-BRAUN ON JANUARY 31, 1963, AMENDING THE COMPANY'S ORIGINAL BID BY INCREASING THE PRICE FOR BASIC BID ITEM 1 BY $2,000 AND THE PRICE FOR ALTERNATE 1A BY $600. WITH RESPECT TO THE FACTS CONCERNING THE TELEGRAM THERE IS NO DISPUTE. THE MESSAGE WAS RECEIVED OVER THE TELEPHONE IN THE CHICAGO OFFICE OF THE WESTERN UNION TELEGRAPH COMPANY AT 4:39 P.M. ON JANUARY 31, 1963, THE DAY BEFORE THE DATE DESIGNATED FOR OPENING OF BIDS. IN HIS LETTER OF FEBRUARY 19, 1963, THE WESTERN UNION CUSTOMER SERVICE MANAGER STATES THAT THE MESSAGE WAS DULY TRANSMITTED FROM CHICAGO AND THAT THE WASHINGTON, D.C., OFFICE OF WESTERN UNION CUSTOMER SERVICE MANAGER STATES THAT THE MESSAGE WAS DULY TRANSMITTED FROM CHICAGO AND THAT THE WASHINGTON, D.C., OFFICE OF WESTERN UNION HAS STATED THAT THE MESSAGE WOULD HAVE BEEN SWITCHED DIRECT TO THE AGENCY'S COMMUNICATIONS OFFICE THE MORNING OF FEBRUARY 1, 1963. SINCE THE TIME DESIGNATED FOR OPENING BIDS WAS 2 P.M. ON FEBRUARY 1, 1963, IT IS APPARENT THAT THE MESSAGE WAS TIMELY FILED BY ICKES-BRAUN.

THE INVITATION PROVIDED THAT MODIFICATIONS BY TELEGRAPH OF BIDS ALREADY SUBMITTED WOULD BE CONSIDERED AND, WITH RESPECT TO LATE BIDS THAT:

"/A) BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (1) THEY ARE RECEIVED BEFORE AWARD IS MADE; AND EITHER (2) THEY ARE SENT BY REGISTERED MAIL OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; OR (3) IF SUBMITTED BY MAIL (OR BY TELEGRAM IF AUTHORIZED), IT IS DETERMINED THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION * * *"

THE ABOVE CONDITIONS FOLLOW LITERALLY THE PROVISIONS OF PARAGRAPHS 1- 2.303-2 AND 1-2.305 OF THE FEDERAL PROCUREMENT REGULATIONS SETTING FORTH THE CONDITIONS UNDER WHICH LATE MODIFICATIONS OF BIDS MAY BE CONSIDERED. THIS PARAGRAPH OF THE INVITATION CLEARLY SETS OUT THE CONDITIONS UNDER WHICH TELEGRAPHIC BID MODIFICATIONS WILL BE CONSIDERED WHEN RECEIVED LATE. THE BIDDER MUST ESTABLISH (1) THAT THE TELEGRAPHIC MODIFICATION WAS DEPOSITED IN TIME FOR RECEIPT PRIOR TO BID OPENING AND (2) THAT THE DELAY WAS WITHOUT HIS FAULT OR NEGLECT. ALSO THE RECORD MUST SHOW THAT (3) THE TELEGRAPHIC BID MODIFICATION WAS RECEIVED BY THE DESIGNATED OFFICE PRIOR TO AWARD. HERE CONDITIONS 1 AND 2 APPEAR TO HAVE BEEN MET; HOWEVER, CONDITION 3 RELATING TO RECEIPT OF THE TELEGRAPHIC BID MODIFICATION PRIOR TO AWARD HAS NOT BEEN MET.

ACCORDINGLY, AND SINCE IT APPEARS THAT THE PROCURING AGENCY WAS JUSTIFIED IN MAKING THE AWARD ON THE BASIS OF THE ORIGINAL BID SUBMITTED BY ICKES- BRAUN, YOU ARE ADVISED THAT WE WOULD NOT BE WARRANTED IN RECOMMENDING OR APPROVING A CONTRACT MODIFICATION WHICH WOULD INCREASE THE CONTRACT AMOUNT BY $2,600, BASED UPON THE CONTRACTOR'S CONTENTION THAT THE GOVERNMENT HAD TO CONSIDER THE TELEGRAPHIC BID MODIFICATION BECAUSE IT HAD BEEN TIMELY FILED BY THE COMPANY WITH THE TELEGRAPH COMPANY.