B-154076, MAY 6, 1964

B-154076, MAY 6, 1964

TO MR. E. F. HOGLUND, CONSTRUCTION CONTRACTING OFFICER, VETERANS ADMINISTRATION:

BY LETTER DATED MAY 1, 1964, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO WHETHER THE LOW BID OF N. F. ENGLISH CONSTRUCTION CO., INC., AS ORIGINALLY SUBMITTED MAY BE CONSIDERED FOR AWARD UNDER AN INVITATION FOR BIDS ISSUED FOR PROJECT NO. 40-5128, COVERING A 240-BED GENERAL PSYCHIATRIC BUILDING AT VETERANS ADMINISTRATION HOSPITAL, FORT MEADE, SOUTH DAKOTA.

THE INVITATION DATED FEBRUARY 7, 1964, AS AMENDED, PROVIDED THAT BIDS FOR THE WORK ADVERTISED WOULD BE RECEIVED UNTIL 1:30 P.M., E.S.T., APRIL 21, 1964, AT THE OFFICE OF THE CONSTRUCTION CONTRACTING OFFICER, VETERANS ADMINISTRATION (VA), MUNITIONS BUILDING, WASHINGTON 25, D.C. NINE BIDS WERE RECEIVED AND OPENED AT THE TIME AND DATE SPECIFIED. THE LOWEST BID IN THE AMOUNT OF $2,000,000 FOR THE BASIC CONSTRUCTION WORK WAS SUBMITTED BY ENGLISH FOLLOWED BY THAT SUBMITTED BY OTTO J. EICKHOF AND SONS, INC., IN THE AMOUNT OF $2,067,478. HOWEVER, A TELEGRAM WAS SENT BY ENGLISH AT 10:52 A.M., C.S.T., APRIL 21, FROM HUTCHINSON, KANSAS, TO THE CONTRACTING OFFICER, WHICH ADDED $180,000 TO ITS BASIC BID PRICE. THIS TELEGRAM WAS RECEIVED BY THE VA TELETYPE ROOM AT 1:33 P.M., E.S.T., APRIL 21, OR THREE MINUTES AFTER BIDS WERE PUBLICLY OPENED. PURSUANT TO SECTION 1-2.303-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), ENGLISH WAS ADVISED ON APRIL 22, 1964, OF THE LATE RECEIPT OF ITS TELEGRAPHIC MODIFICATION AND THAT THE TELEGRAM WOULD NOT BE CONSIDERED IN CONNECTION WITH THE ORIGINAL BID UNLESS CLEAR AND CONVINCING EVIDENCE WAS FURNISHED SHOWING THAT THE TELEGRAM WAS FILED WITH WESTERN UNION IN SUFFICIENT TIME FOR DELIVERY BY NORMAL TRANSMISSION PROCEDURES PRIOR TO THE TIME SET FOR BID OPENING. APRIL 28, 1964, ENGLISH ADVISED THAT IT DID NOT PLAN TO PURSUE THE MATTER OF ITS TELEGRAPHIC MODIFICATION FURTHER.

INCORPORATED INTO AND MADE A PART OF THE INVITATION FOR BIDS WAS STANDARD FORM 22: INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT). PARAGRAPH 7 THEREOF PROVIDED:

"7. LATE BIDS AND MODIFICATIONS OR WITHDRAWALS.

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 RECEIVED BEFORE AWARD AND (A) THEY ARE SUBMITTED BY MAIL (OR BY TELEGRAPH, IF AUTHORIZED) AND (B) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (1) DELAY IN THE MAILS (OR BY THE TELEGRAPH COMPANY, IF TELEGRAPHIC BIDS ARE AUTHORIZED) FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (2) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. HOWEVER, A MODIFICATION WHICH IS RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER AND WHICH MAKES THE TERMS OF THE BID MORE FAVORABLE TO THE GOVERNMENT WILL BE CONSIDERED AT ANY TIME IT IS RECEIVED AND MAY THEREAFTER BE ACCEPTED.'

FPR SEC. 1-2.303-4 WHICH PRESCRIBES THE RULES AND PROCEDURES APPLICABLE TO LATE TELEGRAPHIC MODIFICATIONS PROVIDES THAT A LATE TELEGRAPHIC BID SHALL BE PRESUMED TO HAVE BEEN FILED WITH THE TELEGRAPH COMPANY TOO LATE TO BE RECEIVED IN TIME, EXCEPT WHERE THE BIDDER DEMONSTRATES BY CLEAR AND CONVINCING EVIDENCE WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY THAT THE BID, AS RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS, WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED ON TIME BY NORMAL TRANSMISSION PROCEDURE.

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. CF. A. P. MILLER AND A. P. MILLER, INC. V. UNITED STATES, 104 CT.CL. 461. IF THE GOVERNMENT HAS THE CLEAR RIGHT TO CONSIDER A LATE TELEGRAPHIC MODIFICATION REDUCING AN OTHERWISE LOW BID (ALECK LEITMAN V. UNITED STATES, 104 CT.CL. 324), IT ALSO MAY REFUSE TO CONSIDER, AS HERE, A LATE TELEGRAPHIC MODIFICATION INCREASING AN OTHERWISE LOW BID, ESPECIALLY WHEN IT IS TO THE ECONOMIC ADVANTAGE OF THE GOVERNMENT TO DO SO.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT THE LOW BID OF ENGLISH AS ORIGINALLY SUBMITTED MAY BE CONSIDERED FOR AWARD, IF OTHERWISE PROPER.