B-157141, SEP. 30, 1965

B-157141, SEP. 30, 1965

TO WATTAM, VOGEL, VOGEL, BRIGHT AND PETERSON:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF J. E. KRIEG AND SONS, INCORPORATED, AGAINST THE ACTION TAKEN IN CONNECTION WITH THEIR BID SUBMITTED UNDER INVITATION FOR BIDS, NO. ARS-441-B-65, ISSUED BY THE AGRICULTURAL RESEARCH SERVICE, HYATTSVILLE, MARYLAND, ON JUNE 2, 1965.

INVITATION NO. ARS-441-B-65 REQUESTED BIDS TO BE OPENED JUNE 25, 1965, FOR CONSTRUCTION OF HEADHOUSE-GREENHOUSE FACILITIES AT FARGO, NORTH DAKOTA. THE SAME OFFICE ISSUED INVITATION NO. ARS-463-B-65 ON JUNE 4, 1965, WHICH ALSO COVERED CONSTRUCTION WORK AT FARGO, NORTH DAKOTA, AND BIDS WERE LIKEWISE TO BE OPENED ON JUNE 25, 1965.

THE FOUR BIDS RECEIVED ON ARS-441-B-65 WERE OPENED ON JUNE 25, 1965,WITH THE TOTALS FOR ALL ITEMS AS FOLLOWS: CANDOR CONSTRUCTION COMPANY, INCORPORATED, $113,238; T. F. POWERS CONSTRUCTION COMPANY, $124,000; JOHN T. JONES CONSTRUCTION COMPANY, $143,000; AND, J. E. KRIEG AND SONS, $180,796. THE CONTRACTING OFFICER SIGNED AN AWARD, CONTRACT NO. 12-14-100 -8269, TO CANDOR CONSTRUCTION COMPANY, THE LOW BIDDER, ON JUNE 26, 1965, BUT APPARENTLY THE ACTUAL NOTICE OF AWARD WAS NOT MAILED UNTIL THE MORNING OF JUNE 30, 1965.

ON THE AFTERNOON OF JUNE 28, 1965, A REPRESENTATIVE OF J. E. KRIEG AND SONS CALLED THE CONTRACTING OFFICE AND ASKED IF THE DODGE REPORTS' PUBLICATION LISTING CANDOR CONSTRUCTION COMPANY AS A LOW BIDDER WAS CORRECT. UPON RECEIVING AN AFFIRMATIVE REPLY THE KRIEG COMPANY REPRESENTATIVE REFERRED TO AN ALLEGED TELEGRAM WHICH REDUCED THEIR BID PRICE AND HE WAS ADVISED THAT THE CONTRACTING OFFICE HAD NOT RECEIVED A TELEGRAM FROM THE COMPANY IN CONNECTION WITH THE INVITATION IN QUESTION, ARS-441-B-65. SUBSEQUENTLY A TELEPHONE CALL WAS RECEIVED FROM WESTERN UNION TELEGRAPH COMPANY REGARDING THE TELEGRAM AND IT DEVELOPED THAT THE MESSAGE IN QUESTION WAS SPECIFICALLY IDENTIFIED AS PERTAINING TO INVITATION NO. ARS-463-B-65, NOT ARS-441-B-65. WITH SUCH IDENTIFICATION THE TELEGRAM WAS FILED IN THE ARS-463-B-65 FILE WHERE IT PROPERLY BELONGED. THE TELEGRAM IS AS FOLLOWS: "REGARDS INVITATION NUMBER ARS-463- B-65 DEDUCT FROM BID ITEM ONE 64,500.00 DEDUCT FROM BID ITEM 4 4,100.00.'

IN YOUR LETTER OF JULY 1, 1965, IT IS STATED, IN PART, AS FOLLOWS:

"THE BID OF J. E. KRIEG AND SONS, INC., INCLUDING THE TELEGRAPHIC MODIFICATION, IS THE LOW RESPONSIVE BID UNDER IFB 441. THE ISSUE APPEARS TO US TO BE WHETHER THE GOVERNMENT'S FAILURE AND DELAY IN IDENTIFYING AND ASSOCIATING THE TELEGRAPHIC MODIFICATION WITH THE BID ACTUALLY SUBMITTED BY J. E. KRIEG AND SONS IS LEGALLY PERMISSIBLE. WE SUBMIT THAT IT IS NOT AND THAT THE PUBLIC ADVERTISING STATUTES UNDER WHICH THIS INVITATION WAS ISSUED REQUIRED THE GOVERNMENT TO AWARD THIS CONTRACT TO THE PROTESTANT AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

"WE TAKE THIS POSITION BECAUSE, UNDER ALL THE FACTS, J. E. KRIEG AND SONS WOULD HAVE BEEN LEGALLY OBLIGATED TO PERFORM IN ACCORDANCE WITH ITS BID UNDER IFB ARS-441, INCLUDING THE MODIFICATIONS IN THE FORM OF PRICE REDUCTIONS SET OUT IN ITS TELEGRAM. THE MISTAKE AS TO THE IFB NUMBER IN THE TELEGRAM WOULD NOT PROVIDE THE PROTESTANT WITH ANY LEGAL JUSTIFICATION FOR REFUSING TO PERFORM IN ACCORDANCE WITH ITS BID AS MODIFIED. THIS BEING THE CASE, THE TELEGRAM REDUCING THE AMOUNT OF THE BID SHOULD BE CONSIDERED IN CONNECTION WITH THE EVALUATION OF BIDS UNDER IFB 441. WHEN SUCH AN EVALUATION IS MADE, THE PROTESTANT IS THE LOW BIDDER AND, UNDER THE LAWS OF THE UNITED STATES, IS, IN OUR OPINION, ENTITLED TO THE AWARD OF THIS CONTRACT.'

WE CANNOT AGREE THAT THERE WAS ANY "FAILURE OR DELAY IN IDENTIFYING AND ASSOCIATING THE TELEGRAPHIC MODIFICATION WITH THE BID ACTUALLY SUBMITTED BY J. E. KRIEG AND SONS" ON THE PART OF THE EMPLOYEES OF THE CONTRACTING OFFICE. WHILE IT MAY BE THAT J. E. KRIEG AND SONS DID NOT SUBMIT A BID ON ARS-463-B-65, IT IS REPORTED THAT IT IS NOT UNCOMMON FOR BIDDERS TO SUBMIT TELEGRAMS AND THEN SEND THE BIDS TOO LATE FOR CONSIDERATION AND SOMETIMES NOT AT ALL. IT IS FURTHER REPORTED THAT A SUBSTANTIAL NUMBER OF TELEGRAMS WERE RECEIVED ON JUNE 25, 1965, IN CONNECTION WITH THE VARIOUS INVITATIONS FOR BIDS SCHEDULED TO BE OPENED THAT DAY. FURTHERMORE, SINCE THE TELEGRAM IN QUESTION SPECIFICALLY RECITED ARS-463-B-65, AN EXISTING INVITATION AND WHICH ALSO COVERED CONSTRUCTION WORK AT FARGO, NORTH DAKOTA, THERE WAS NO BASIS TO ASSOCIATE THE TELEGRAM WITH ANY OTHER INVITATION. IN SUCH CIRCUMSTANCES WE DO NOT BELIEVE THAT THE TELEGRAM LEGALLY COULD HAVE BEEN CONSIDERED AS MODIFYING THE BID ON ARS-441-B-65, IF THE BIDDER CHOSE TO INSIST OTHERWISE. THEREFORE, EVEN IF IT WERE NOTED THAT THERE WAS A POSSIBILITY THAT THE TELEGRAM MIGHT HAVE BEEN INTENDED TO APPLY TO ARS-441 -B-65, IT COULD NOT HAVE BEEN SO CONSIDERED WITHOUT GIVING THE BIDDER THE OPPORTUNITY TO AFFIRM OR DENY SUCH INTENTION. SUCH ACTION WOULD HAVE GIVEN THE BIDDER THE OPPORTUNITY TO DECIDE AFTER THE BID OPENING WHETHER OR NOT HE DESIRED THE CONTRACT. THIS CANNOT BE PERMITTED UNDER THE COMPETITIVE BID SYSTEM. SEE 37 COMP. GEN. 554, B-155837, FEBRUARY 17, 1965.

FOR THE FOREGOING REASONS WE FIND NO BASIS TO QUESTION THE AWARD MADE TO CANDOR CONSTRUCTION ..END :