B-159529, JULY 6, 1966, 46 COMP. GEN. 13

B-159529, JULY 6, 1966, 46 COMP. GEN. 13

BIDS - LATE - TELEGRAPHIC MODIFICATIONS - NORMAL V. ABNORMAL DELAY. A SECOND TELEGRAPHIC MODIFICATION INCREASING A BID PRICE, AS DID THE FIRST TELEGRAPHIC MODIFICATION, THE BID REMAINING THE LOW BID, WHICH WAS DELAYED BY A "JAM UP" OF WESTERN UNION LINES AND DELIVERED AFTER BIDS WERE OPENED, THE LOW BIDDER CONFIRMING THE BID PRICE, AS INCREASED BY BOTH TELEGRAMS, MAY NOT BE CONSIDERED UNDER THE RULE THAT A BIDDER MUST ANTICIPATE BUSINESS VOLUME AND BEAR THE RESPONSIBILITY FOR LATE ARRIVAL WHEN UNABLE TO ESTABLISH THE HANDLING OF A MESSAGE WAS OTHER THAN ROUTINE; THEREFORE, THE SECOND INCREASE IN PRICE DISREGARDED, THE CONFIRMATION OF THE BID PRICE AS INCREASED BY BOTH TELEGRAMS MAY NOT BE CONSIDERED, AND A MISTAKE APPEARING TO HAVE BEEN MADE BY THE BIDDER, SECTION 1-2.406 OF THE FEDERAL PROCUREMENT REGULATIONS DEALING WITH MISTAKES IN BID SHOULD BE FOLLOWED AND THE BIDDER REQUESTED TO VERIFY THE BID PRICE AS INCREASED BY THE FIRST TELEGRAPHIC MODIFICATION, AND ANY ALLEGATION OF ERROR MADE BY THE BIDDER PROCESSED IN ACCORDANCE WITH THE REGULATION.

TO R. M. FARRAR, VETERANS ADMINISTRATION, JULY 6, 1966:

REFERENCE IS MADE TO YOUR LETTER 086D OF JUNE 22, 1966, REQUESTING A DECISION AS TO THE DISPOSITION WHICH SHOULD BE MADE OF THE BID SUBMITTED BY NATIONAL CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS FOR PROJECT 20- 5255, SPECIFICATION 6611, AS A RESULT OF THE LATE RECEIPT OF A TELEGRAPHIC BID MODIFICATION.

THE BIDDER SUBMITTED TWO TELEGRAPHIC MODIFICATIONS OF ITS $2,000,000 BID. THE FIRST, INCREASING THE BID PRICE BY $135,497, WAS FILED WITH WESTERN UNION, BOSTON, MASSACHUSETTS, AT 1:53 A. M., E. D. T., ON JUNE 14, 1966, AND WAS RECEIVED BY THE VETERANS ADMINISTRATION IN WASHINGTON, D. C., WELL IN ADVANCE OF THE 2:30 P. M., E. D. T., BID OPENING ON THAT DATE. THE SECOND, INCREASING THE BID PRICE BY AN ADDITIONAL $50,000, WAS FILED WITH WESTERN UNION, BOSTON, AT 12:59 P. M., E. D. T., AND, ALTHOUGH FILED MORE THAN AN HOUR AND A HALF BEFORE BID OPENING, WAS NOT RECEIVED IN THE VETERANS ADMINISTRATION TELETYPE ROOM IN WASHINGTON UNTIL 2:37 P. M., E. D. T., 7 MINUTES AFTER THE SCHEDULED OPENING.

THE BIDDER WAS NOTIFIED BY LETTER OF THE LATE RECEIPT OF THE SECOND TELEGRAM AND WAS PROVIDED AN OPPORTUNITY TO SUBMIT EVIDENCE ESTABLISHING THAT IT SHOULD BE CONSIDERED. FURTHER, ON THE SAME DAY, BY SEPARATE TELEGRAPHIC COMMUNICATION, IT WAS ADVISED THAT ITS BID WAS SOMEWHAT LOWER THAN THE OTHERS RECEIVED AND IT WAS REQUESTED TO VERIFY ITS BID PRICE. THE LATTER REQUEST, ALTHOUGH UNSTATED IN THE COMMUNICATION, WAS BASED UPON THE FACT THAT THE LOW BID OF $2,135,497, AS MODIFIED BY THE FIRST TELEGRAM, WAS 16 PERCENT LOWER THAN THE NEXT LOW BID IN THE AMOUNT OF $2,483,000.

THE BIDDER EXPLAINED THAT ON THE BID OPENING DAY IT INQUIRED OF WESTERN UNION PERSONNEL IN BOSTON HOW LONG IT WOULD TAKE TO SEND A TELEGRAM TO THE VETERANS ADMINISTRATION IN WASHINGTON; THAT IT WAS ADVISED THAT IT WOULD TAKE LESS THAN AN HOUR; AND THAT RELYING UPON THAT ADVICE IT SENT THE TELEGRAMS. THE BIDDER STATED FURTHER THAT A WESTERN UNION EMPLOYEE ADVISED THAT SERVICE ON THE SECOND TELEGRAM WAS ABNORMAL AND THAT THE LINES WERE "JAMMED UP.' ALTHOUGH THE BIDDER REFERS TO THE ADVICE RECEIVED FROM THE EMPLOYEE, THE BIDDER HAS NOT FURNISHED ANY SUBSTANTIATION FROM AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY AS REQUIRED BY THE FEDERAL PROCUREMENT REGULATIONS (FPR) AND AS REQUESTED IN THE LETTER ADVISING OF THE LATE RECEIPT OF THE TELEGRAM. WITH RESPECT TO THE REQUEST FOR CONFIRMATION OF ITS BID PRICE, THE BIDDER, BY SEPARATE LETTER, STATED "WE VERIFY AND CONFIRM OUR BIDDING PRICE IN THE AMOUNT OF $2,185,497.00, WHICH INCLUDES BOTH TELEGRAPHIC MODIFICATIONS;,

THE FPR (SECTIONS 1-2.305, 1-2.303-2 AND 1-2.030-4) AUTHORIZE CONSIDERATION OF A LATE TELEGRAPHIC BID MODIFICATION IF THE LATENESS WAS DUE TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE AND THE BIDDER SHOWS BY CLEAR AND CONVINCING EVIDENCE THAT THE TELEGRAM WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.

IN 39 COMP. GEN. 586 AND 40 COMP. GEN. 290, IT WAS HELD THAT THE BIDDER MUST BEAR THE RESPONSIBILITY OF LATE ARRIVAL OF A TELEGRAPHIC MODIFICATION. IN SUCH CASES, THE LATE MODIFICATION IS UNACCEPTABLE UNLESS THE BIDDER SUSTAINS THE BURDEN OF PROVING THAT THE TELEGRAM WAS LATE BECAUSE OF UNUSUAL OR ABNORMAL DELAYS IN TRANSMISSION. UNDER THE PRINCIPLES ESTABLISHED BY THESE DECISIONS, IT IS NOT ENOUGH FOR A BIDDER TO SHOW THAT THE TELEGRAM COULD HAVE BEEN DELIVERED TIMELY UNDER FAVORABLE CONDITIONS. THE BIDDER MUST GO FURTHER AND DEMONSTRATE THAT THE ARRIVAL OF THE TELEGRAM WAS NOT DUE TO NORMAL, USUAL AND FORESEEABLE DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPHIC COMPANY ACCOMPLISHES ITS WORK. IN THAT CONNECTION, IT WAS OBSERVED IN THE DECISION IN 40 COMP. GEN. 290 THAT DELIVERY BY TELEGRAPH IS DEPENDENT UPON OPERATING CONDITIONS AND VOLUME OF BUSINESS WHICH VARIES FROM HOUR-TO-HOUR AND DAY-TO-DAY. IN B-144206, DECEMBER 29, 1960, REFERRING TO THE FOREGOING DECISIONS, IT WAS STATED:

WE THINK THESE DECISIONS CLEARLY ESTABLISH THE PRINCIPLE THAT IT IS NOT ENOUGH TO MERELY SHOW THAT THE TELEGRAPHIC MESSAGE WAS DELAYED BEYOND THE "OPTIMUM" CONDITIONS THE TELEGRAPH COMPANY MAY ENDEAVOR TO MAINTAIN. RATHER IT IS NECESSARY THAT THE BIDDER ESTABLISH THAT THE HANDLING HIS MESSAGE RECEIVED WAS OTHER THAN ROUTINE. * * *

IT IS REPRESENTED THAT THE SECOND TELEGRAM WAS DELAYED BECAUSE THE LINES WERE "JAMMED UP;, WE TAKE THIS TO MEAN THAT THE VOLUME OF BUSINESS WAS SO HEAVY THAT MESSAGES COULD NOT MOVE WITH THE ORDINARY DISPATCH. THEREFORE, EVEN IF THIS WERE SUBSTANTIATED BY AN OFFICIAL OF THE TELEGRAPH COMPANY, IT REMAINS, AS INDICATED ABOVE, THAT THE VOLUME OF BUSINESS IS A CONDITION WHICH THE BIDDER MUST ANTICIPATE AND FOR WHICH IT MUST BEAR THE RESPONSIBILITY. ACCORDINGLY, IN THE CIRCUMSTANCES, THE SECOND TELEGRAPHIC BID MODIFICATION SHOULD BE DISREGARDED.

REGARDING THE VERIFICATION OF THE BID, IT IS CLEAR THAT THE BIDDER CONFIRMED THE PRICE AS INCREASED BY BOTH TELEGRAMS. THIS CONFIRMATION, OF COURSE, CANNOT BE CONSIDERED AS A CONFIRMATION OF THE PRICE AS INCREASED BY THE FIRST TELEGRAM ONLY. SINCE, ASIDE FROM THE ATTEMPTED $50,000 MODIFICATION, PROCUREMENT PERSONNEL SEEM TO THINK THAT A MISTAKE MAY HAVE BEEN MADE IN THE $2,135,497 BID, THE FPR SECTION 1-2.406 DEALING WITH MISTAKES IN BIDS SHOULD BE FOLLOWED AND THE BIDDER REQUESTED TO VERIFY ITS $2,135,497 BID. IF ANY ALLEGATION OF ERROR IS MADE IT SHOULD BE PROCESSED PURSUANT TO THE CITED REGULATION.

THE ENCLOSURES FURNISHED OUR OFFICE WITH THE JUNE 22 LETTER AND SUBSEQUENT CORRESPONDENCE ARE RETURNED AS REQUESTED.