B-45455, NOVEMBER 3, 1944, 24 COMP. GEN. 350

B-45455, NOVEMBER 3, 1944, 24 COMP. GEN. 350

BIDS - TELEGRAPHIC MODIFICATION RECEIVED AFTER TIME SET FOR OPENING CONSIDERATION OF A BID AS MODIFIED BY A TELEGRAM RECEIVED IN THE ADMINISTRATIVE OFFICE A FEW MINUTES AFTER THE TIME SET FOR OPENING BUT BEFORE COMPLETION THEREOF IS NOT PRECLUDED BY THE PROVISION OF PARAGRAPH 11 OF THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS THAT "MODIFICATIONS BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE HOUR SET FOR OPENING," WHERE THE TELEGRAM WAS DISPATCHED BEFORE THE TIME SET FOR OPENING AND ITS LATE ARRIVAL NOT DUE TO ANY FAULT OR NEGLIGENCE OF THE BIDDER.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 3, 1944:

I HAVE YOUR LETTER OF OCTOBER 27, 1944, AND ENCLOSURES, REQUESTING A DECISION AS TO WHETHER ACCEPTANCE IS AUTHORIZED OF THE BID SUBMITTED BY ROBERT E. MCKEE DATED OCTOBER 17, 1944, AS MODIFIED BY A TELEGRAM OF THE SAME DATE.

THE VETERANS ADMINISTRATION INVITED BIDS--- TO BE OPENED AT 1:30 P.M. ON OCTOBER 17, 1944--- FOR THE CONSTRUCTION OF ADDITIONAL BUILDINGS AND UTILITIES AT THE VETERANS ADMINISTRATION FACILITY, LOS ANGELES, CALIFORNIA. IN RESPONSE TO THAT INVITATION, ROBERT E. MCKEE OF LOS ANGELES, CALIFORNIA, SUBMITTED A BID DATED OCTOBER 17, 1944, OFFERING TO PERFORM THE WORK, IF REQUIRED, UNDER ALTERNATES DESIGNATED 1 (A), 1 (B), 1 (C), AND 1 (D) FOR CERTAIN SPECIFIED PRICES.

IN YOUR LETTER OF OCTOBER 27, IT IS STATED THAT---

* * * WHILE THE BIDS WERE BEING OPENED AND ANNOUNCED AND BEFORE COMPLETION OF THE OPENING, A TELEGRAM WAS RECEIVED FROM ROBERT E. MCKEE, AS FOLLOWS:

"REFERENCE MY WRITTEN BID DATED OCTOBER 17 1944 FOR CONSTRUCTION OF ADDITIONAL BUILDINGS AND UTILITIES AT LOS ANGELES CALIFORNIA, SPECIFICATION NUMBER 4465-H. DEDUCT FROM ITEM NUMBER ONE THE SUM OF $325,000.00. DEDUCT FROM WRITTEN AMOUNT OF ALTERNATE 1-A THE SUM OF $153,000.00. DEDUCT FROM WRITTEN AMOUNT OF ALTERNATE 1-B THE SUM OF $38,300.00. DEDUCT FROM WRITTEN AMOUNT OF ALTERNATE 1-C THE SUM OF $62,000.00. DEDUCT FROM WRITTEN AMOUNT OF ALTERNATE 1-D THE SUM OF $42.900.00. NET AMOUNTS AFTER THESE CHANGES TO ALL ALTERNATES TO BE ADDED TO ITEM NUMBER ONE.'

SAID TELEGRAM SHOWS THAT IT WAS DISPATCHED FROM LOS ANGELES, CALIFORNIA, AT 9:14 A.M. ON OCTOBER 17, 1944; THAT IT WAS RECEIVED IN THE TELEGRAPH OFFICE IN WASHINGTON, D.C., AT 12:34 P.M.; AND THAT IT WAS RECEIVED IN THE VETERANS ADMINISTRATION AT 1:36 P.M. ON SAID DATE.

ALSO, IN YOUR LETTER OF OCTOBER 27, 1944, IT IS STATED:

ALTHOUGH THE TELEGRAM WAS RECEIVED BY THE VETERANS ADMINISTRATION JUST SIX MINUTES AFTER THE HOUR SET FOR OPENING, AND IT IS CLEARLY INDICATED THAT THE LATE ARRIVAL OF THE TELEGRAM WAS NOT DUE TO FAULT OR NEGLIGENCE ON THE PART OF THE BIDDER, A QUESTION NEVERTHELESS ARISES AS TO WHETHER, IN VIEW OF PARAGRAPH 11 OF THE STANDARD GOVERNMENT INSTRUCTIONS TO BIDDERS, AS FOLLOWS:

"TIME FOR RECEIVING BIDS.--- BIDS RECEIVED PRIOR TO THE TIME OF OPENING WILL BE SECURELY KEPT, UNOPENED. THE OFFICER WHOSE DUTY IT IS TO OPEN THEM WILL DECIDE WHEN THE SPECIFIED TIME HAS ARRIVED, AND NO BID RECEIVED THEREAFTER WILL BE CONSIDERED, EXCEPT THAT WHEN A BID ARRIVES BY MAIL AFTER THE TIME FIXED FOR OPENING, BUT BEFORE AWARD IS MADE, AND IT IS SHOWN TO THE SATISFACTION OF THE OFFICER AUTHORIZED TO MAKE THE AWARD THAT THE NONARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, SUCH BID WILL BE RECEIVED AND CONSIDERED. RESPONSIBILITY WILL ATTACH TO AN OFFICER FOR THE PREMATURE OPENING OF A BID NOT PROPERLY ADDRESSED AND IDENTIFIED. UNLESS SPECIFICALLY AUTHORIZED, TELEGRAPHIC BIDS WILL NOT BE CONSIDERED, BUT MODIFICATIONS BY TELEGRAPH OF BIDS ALREADY SUBMITTED WILL BE CONSIDERED IF RECEIVED PRIOR TO THE HOUR SET FOR OPENING.' THE VETERANS ADMINISTRATION WOULD BE AUTHORIZED TO ACCEPT THE BID OF ROBERT E. MCKEE, AS MODIFIED BY THE TELEGRAM. * * *

THE TELEGRAM OF ROBERT E. MCKEE WAS DISPATCHED FROM LOS ANGELES, CALIFORNIA, 1 HOUR AND 16 MINUTES PRIOR TO THE TIME OF OPENING OF THE BIDS AND WAS RECEIVED IN THE TELEGRAPH OFFICE IN WASHINGTON, D.C., 20 MINUTES LATER WHICH WAS 56 MINUTES PRIOR TO OPENING. HOWEVER, 1 HOUR AND 2 MINUTES WERE CONSUMED BY THE TELEGRAPH COMPANY IN DELIVERING THE TELEGRAM TO THE VETERANS ADMINISTRATION, WHICH RESULTED IN ITS RECEIPT 6 MINUTES AFTER THE TIME SET FOR OPENING OF THE BIDS.

ON THE BASIS OF THE FACTS OF RECORD IT APPEARS--- AS STATED IN YOUR LETTER--- THAT THE LATE ARRIVAL OF THE TELEGRAM OF OCTOBER 17, 1944, FROM ROBERT E. MCKEE, WAS NOT DUE TO THE FAULT OR NEGLIGENCE OF THE BIDDER. ALSO, SINCE THE TELEGRAM WAS DISPATCHED FROM LOS ANGELES, CALIFORNIA, PRIOR TO OPENING OF THE BIDS IT IS EVIDENT THAT THE BIDDER HAD NO KNOWLEDGE OF THE AMOUNTS OF THE OTHER BIDS AND THAT HIS OFFER TO REDUCE THE BID PRICES--- WHICH WAS RECEIVED IN THE VETERANS ADMINISTRATION BEFORE COMPLETION OF THE OPENING--- WAS NOT MADE IN AN ATTEMPT TO GAIN ADVANTAGE OVER THE OTHER BIDDERS. THE BID OF ROBERT E. MCKEE AS MODIFIED, $1,675,000, IS $83,444 LESS THAN THE NEXT LOW BID.

ACCORDINGLY, THE TELEGRAM OF OCTOBER 17, 1944, FROM ROBERT E. MCKEE, MAY BE REGARDED AS MODIFYING HIS BID; AND SAID BID, AS MODIFIED BY THE TELEGRAM, MAY BE CONSIDERED ALONG WITH THE OTHER BIDS IN MAKING THE AWARD.

IN THE EVENT AWARD IS MADE TO ROBERT E. MCKEE A REFERENCE SHOULD BE MADE TO THIS DECISION IN FORWARDING THE CONTRACT TO THIS OFFICE FOR FILING.