B-161963, AUG. 25, 1967

B-161963, AUG. 25, 1967

BIDS - LATE - TELEGRAPHIC MODIFICATION DECISION TO SECRETARY OF DOT AS TO WHETHER CONSIDERATION OF TELEGRAPHIC MODIFICATION OF BID OF THE AUCHTER COMPANY FOR CONSTRUCTION OF AIR TRAFFIC CONTROL TOWER AT JACKSONVILLE, FLORIDA MAY BE CONSIDERED. EVIDENCE WHICH INDICATES THAT A TELEGRAPHIC MODIFICATION INCREASING LOW BID WOULD HAVE BEEN RECEIVED ON TIME IN THE CONTRACTING OFFICE INSTEAD OF 15 MINUTES LATE IF IT HAD BEEN TRANSMITTED WITHIN FIVE MINUTES OF RECEIPT WHICH IS NORMAL MAY HAVE THE 22 MINUTES THE TELEGRAM MARKED FOR RUSH HANDLING STAYED IN THE TRANSMISSION ROOM REGARDED AS DUE TO ABNORMAL DELAY AND SINCE THERE IS NO EVIDENCE THAT MODIFICATION WAS NOT SUBMITTED IN GOOD FAITH AND NO OTHER BIDDER IS BEING DISPLACED, BID MAY BE CONSIDERED.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF JUNE 20, 1967, WITH ENCLOSURES, FROM THE ASSOCIATE ADMINISTRATOR FOR DEVELOPMENT, FEDERAL AVIATION ADMINISTRATION (FAA), REQUESTING A DECISION AS TO WHETHER CONSIDERATION MAY BE GIVEN TO A TELEGRAPHIC MODIFICATION OF THE BID OF THE AUCHTER COMPANY, JACKSONVILLE, FLORIDA, UNDER INVITATION FOR BIDS (IFB/S0-51-7 30, FOR CONSTRUCTION OF AN AIR TRAFFIC CONTROL TOWER AT THE NEW JACKSONVILLE INTERNATIONAL AIRPORT. WE RECEIVED ADDITIONAL SUPPORTING PAPERS FROM FAA WITH LETTERS OF JULY 31 AND AUGUST 10, 1967, FROM MR. J. E. PERNICE, CHIEF, PROCUREMENT POLICY AND STANDARDS DIVISION, INSTALLATION AND MATERIEL SERVICE.

BIDS WERE OPENED AS SCHEDULED IN THE FAA SOUTHERN REGIONAL OFFICE, ATLANTA, GEORGIA, AT 3:00 P.M., EDT ON JUNE 6, 1967, WITH ONLY TWO BIDS BEING RECEIVED, THE LOW BID OF THE AUCHTER COMPANY IN THE AMOUNT OF $593,185 AND THE BID OF KASCH BROTHERS IN THE AMOUNT OF $673,000. AT 3:10 P.M. ON JUNE 6 A TELEGRAPHIC MODIFICATION OF THE AUCHTER COMPANY BID WAS RECEIVED IN THE COMMUNICATIONS CENTER OF THE REGIONAL OFFICE AND DELIVERED TO THE CONTRACTING OFFICER AT 3:15 P.M. THIS MODIFICATION INCREASED THE AMOUNT OF THE BID BY $75,400 TO A NEW TOTAL OF $668,585, WHICH WOULD STILL BE LOW IF THE MODIFICATION IS CONSIDERED.

THE IFB PERMITS TELEGRAPHIC MODIFICATIONS BUT PROVIDES THAT IF SUCH A MODIFICATION IS RECEIVED AT THE OFFICE DESIGNATED IN THE IFB AFTER THE EXACT TIME SET FOR OPENING OF BIDS, IT WILL NOT BE CONSIDERED UNLESS IT IS RECEIVED BEFORE AWARD IS MADE AND IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THIS IS IN LINE WITH SECTION 1- 2.303-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH REQUIRES THAT THE BIDDER DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE, WHICH INCLUDES SUBSTANTIATION BY AN AUTHORIZED OFFICIAL OF THE TELEGRAPH COMPANY, THAT THE MODIFICATION WAS FILED WITH THE TELEGRAPH COMPANY IN SUFFICIENT TIME TO HAVE BEEN DELIVERED BY NORMAL TRANSMISSION PROCEDURE SO AS NOT TO HAVE BEEN LATE.

IT APPEARS THAT THE AUCHTER COMPANY FILED THE INVOLVED MODIFICATION WITH WESTERN UNION IN JACKSONVILLE AT 2:15 P.M. ON JUNE 6, THAT THE MESSAGE WAS ASSIGNED CODE "RX," WHICH INDICATES THAT THE TELEGRAM SHOULD RECEIVE RUSH HANDLING, AND THAT THE MESSAGE WAS RELEASED FROM JACKSONVILLE AT 2:37 P.M., OR 22 MINUTES AFTER IT WAS FILED. AS EVIDENCE OF THE TIMELY FILING OF THE MODIFICATION, THE AUCHTER COMPANY, BY LETTER OF JUNE 9, 1967, SUBMITTED A LETTER DATED JUNE 7, 1967, FROM THE WESTERN UNION DISTRICT MANAGER IN JACKSONVILLE, WHICH STATES THAT "NORMALLY, THIS TELEGRAM SHOULD HAVE REACHED THE ADDRESSEE IN AMPLE TIME FOR BID OPENING AT 3:00 P.M., HOWEVER, THE MESSAGE WAS NOT PLACED IN THE PROPER SENDING ORDER.' THE FILE ALSO INCLUDES A COPY OF A TELEGRAM DATED JUNE 7, 1967, FROM THE WESTERN UNION REGIONAL MANAGER IN ATLANTA WHICH REFERS TO THE DELAY OF 22 MINUTES IN TRANSMISSION OF THE MESSAGE AND STATES THAT "HAD IT BEEN PROMPTLY SENT TO US WE COULD HAVE DELIVERED THE TELEGRAM SHORTLY BEFORE 3:00 PM, AND OUR SERVICE CAUSED THE DELAY.' ADDITIONALLY, THERE IS A RECORD OF AN ORAL STATEMENT TO MR. MONCUS OF FAA ON JUNE 7, 1967, BY THE MANAGER OF THE CUSTOMER SERVICE DEPARTMENT OF WESTERN UNION IN ATLANTA, WHICH ALLUDES TO THE REQUEST BY AUCHTER FOR RUSH HANDLING AND EXPRESSES THE OPINION THAT, BUT FOR WESTERN UNION'S DELAY OF 22 MINUTES IN THE TRANSMISSION OF THE MESSAGE, IT WOULD HAVE BEEN RECEIVED BY FAA IN ATLANTA AT 2:49 P.M. EDT.

UPON RECEIPT OF THE ABOVE LETTER OF JUNE 7 THE CONTRACTING OFFICER DISCUSSED THE MATTER WITH HIS REGIONAL COUNSEL AND THEY AGREED THAT CLARIFICATION SHOULD BE RECEIVED ON WHAT WAS MEANT BY NOT PLACING THE MESSAGE "IN THE PROPER SENDING ORDER.' IT WAS FURTHER AGREED THAT A QUESTION SHOULD BE ASKED AS TO WHAT THE NORMAL TRANSMISSION TIME IS AND THAT THIS SHOULD BE STATED IN SPECIFIC MINUTES AND TIME ELEMENTS. THE MATTER WAS ALSO DISCUSSED BY OTHER FAA OFFICIALS AND IT WAS CONCLUDED THAT IT WOULD NOT BE UNREASONABLE TO REJECT THE AUCHTER COMPANY SUBMISSION AS INADEQUATE TO CONSTITUTE "CLEAR AND CONVINCING" EVIDENCE WITHIN THE MEANING OF FPR 1-2.303-4. THE AUCHTER COMPANY WAS SO ADVISED BY LETTER OF JUNE 15, 1967, FROM THE CONTRACTING OFFICER STATING THAT IN HIS OPINION WESTERN UNION'S STATEMENT IS A MERE CONCLUSION OF WHAT COULD HAVE BEEN DONE UNDER A GIVEN SET OF CIRCUMSTANCES, BUT IN NO WISE DEMONSTRATES WHAT IS ORDINARILY DOEN IN THE NORMAL TRANSMISSION PROCEDURE AND IN WHAT RESPECT THE HANDLING OF THE MESSAGE IN THIS INSTANCE DIFFERED FROM SUCH NORMAL PROCEDURE. HOWEVER, THERE IS NO INDICATION THAT EITHER FAA OR THE BIDDER REQUESTED ANY ADDITIONAL INFORMATION OR EVIDENCE FROM WESTERN UNION AS TO WHAT CONSTITUTES NORMAL HANDLING AND WHEN THE MESSAGE WOULD HAVE BEEN DISPATCHED IF PLACED IN THE PROPER SENDING ORDER, WHICH INFORMATION WOULD APPEAR TO BE ESSENTIAL IN ORDER TO VERIFY THE CONCLUSION OF THE DISTRICT MANAGER THAT THE TELEGRAM SHOULD HAVE REACHED THE ADDRESSEE IN AMPLE TIME FOR THE BID OPENING IF PLACED IN THE PROPER ORDER.

IN SUPPORT OF YOUR DEPARTMENT'S POSITION, TWO DECISIONS OF THIS OFFICE HAVE BEEN CITED, B-144371, NOVEMBER 16, 1960 (40 COMP. GEN. 290), AND B- 159529, JULY 6, 1966 (46 COMP. GEN. 13). THESE DECISIONS AND OTHERS CITED THEREIN ESTABLISH THE PRINCIPLE THAT IT IS NOT ENOUGH TO SHOW MERELY THAT THE MESSAGE WAS DELAYED BEYOND THE "OPTIMUM" CONDITIONS THE TELEGRAPH COMPANY MAY ENDEAVOR TO MAINTAIN, BUT THE BIDDER MUST ESTABLISH THAT THE HANDLING HIS MESSAGE RECEIVED WAS OTHER THAN ROUTINE AND THAT THE FAILURE TO ARRIVE BEFORE BID OPENING TIME WAS DUE SOLELY TO ,ABNORMAL" DELAY IN TRANSMISSION.

THE PAPERS FORWARDED WITH THE FAA LETTER OF JULY 31 INCLUDED THREE AFFIDAVITS AND A RECORD OF A MEETING BETWEEN REPRESENTATIVES OF THE GOVERNMENT AND OF THE BIDDER AT WHICH THESE AFFIDAVITS WERE DISCUSSED. AGREE WITH THE CONCLUSION OF THE CONTRACTING OFFICER THAT THESE AFFIDAVITS DID NOT SUPPLY THE NECESSARY ADDITIONAL EVIDENCE. THE ONLY NEW INFORMATION RELATES TO CERTAIN OPERATIONS IN THE HANDLING OF THE MESSAGE THROUGH THE ATLANTA OFFICE AFTER ITS TRANSMITTAL FROM JACKSONVILLE, EACH OF WHICH IS STATED TO REQUIRE APPROXIMATELY THREE MINUTES, AND THE CONCLUSION WAS STATED THAT UNDER NORMAL TRANSMISSION PROCEDURE THE MESSAGE SHOULD HAVE BEEN RECEIVED IN THE COMMUNICATIONS CENTER OF THE ADDRESSEE NOT LATER THAN 2:50 P.M., WHICH WAS ONLY 13 MINUTES AFTER IT WAS TRANSMITTED BY THE JACKSONVILLE OFFICE. SUCH SPEED WOULD APPEAR TO REPRESENT, IF NOT EXCEED,"OPTIMUM" EXPECTATIONS AND WOULD PRACTICALLY PRESUPPOSE THAT NO OTHER MESSAGES WERE BEING HANDLED, WHEREAS WESTERN UNION HAS STATED THAT ON THE AFTERNOON IN QUESTION, ITS JACKSONVILLE OFFICE WAS HANDLING AN ABNORMAL VOLUME OF MESSAGES DIRECTED TO CERTAIN MEMBERS OF THE LEGISLATURE IN CONNECTION WITH PENDING LEGISLATIVE PROGRAMS. IN ANY EVENT, THERE HAD BEEN NO PREVIOUS ALLEGATION OF DELAY DUE TO MISHANDLING OF THE MESSAGE AFTER TRANSMISSION, EITHER BY WESTERN UNION OR BY THE GOVERNMENT, NOR IS THERE ANY EVIDENCE OF SAME, THE DELAYED RECEIPT HAVING BEEN ATTRIBUTED, FROM THE OUTSET, SOLELY TO THE 22 MINUTE LAPSE BETWEEN FILING AND TRANSMISSION.

IN RESPONSE TO OUR VERBAL REQUEST OF AUGUST 2, 1967, TO MR. PERNICE, FOR SPECIFIC INFORMATION AND SUPPORTING EVIDENCE ON THE EXTENT OF THE DELAY DUE TO FAILURE TO PLACE THE MESSAGE IN THE PROPER SENDING ORDER, THERE WAS TRANSMITTED WITH FAA'S LETTER OF AUGUST 10 AN AFFIDAVIT BY MR. R. L. BRASHER, WESTERN UNION DISTRICT MANAGER IN JACKSONVILLE, DATED AUGUST 7, 1967, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"IN THE JACKSONVILLE OFFICE OF WESTERN UNION, THE TELEPHONE RECEIVING OPERATORS SIT AT A TABLE OPPOSITE THE TRANSMITTAL OPERATORS. NORMALLY A MESSAGE WHICH IS TO RECEIVE PRIORITY, SUCH AS A BID, WHEN RECEIVED BY THE TELEPHONE OPERATOR, IS IMMEDIATELY HANDED DIRECTLY ACROSS THE TABLE TO THE TRANSMITTAL OPERATOR IN ORDER THAT IT MAY BE PUT ON THE WIRE WITH THE LEAST AMOUNT OF DELAY. MESSAGES OTHER THAN PRIORITY TYPE ARE PLACED ON A MECHANICAL BELT FOR DISTRIBUTION TO THE TRANSMITTAL OPERATORS. THE MESSAGE WHICH WAS RECEIVED FROM THE AUCHTER COMPANY OF JACKSONVILLE, FLORIDA, OVER THE TELEPHONE ON JUNE 6, 1967, AT 2:15 P. M. DID NOT RECEIVE THE NORMAL PRIORITY HANDLING, BUT INSTEAD WAS PLACED ON THE BELT FOR ROUTINE DISTRIBUTION TO THE TRANSMITTERS. HAD THE MESSAGE BEEN GIVEN PROPER PRIORITY HANDLING NORMALLY AFFORDED TO TELEGRAPHIC BIDS, THE TOTAL ELAPSED TIME FROM RECEIPT OF THE MESSAGE BY THE TELEPHONE OPERATOR AND TRANSMITTAL WOULD ORDINARILY HAVE NOT EXCEEDED FIVE MINUTES, RESULTING IN A TRANSMITTAL TIME FROM JACKSONVILLE OF :20 P. M., JUNE 6, 1967.

"WESTERN UNION DOES NOT MAINTAIN PERMANENT RECORDS GROUPED IN CHRONOLOGICAL ORDER FOR ANY GIVEN DAY, THEREFORE, IT IS IMPOSSIBLE TO DETERMINE IN WHAT SEQUENCE VARIOUS MESSAGES MAY HAVE BEEN TRANSMITTED ON ANY GIVEN DAY. THIS INFORMATION WOULD HAVE BEEN AVAILABLE ON THE MORNING AFTER THE TRANSMITTAL OF THE AUCHTER MESSAGE IF SUCH HAD BEEN REQUESTED; HOWEVER, AFTER PROCESSING FOR BILLING IT IS IMPOSSIBLE TO RECONSTRUCT THE TRAFFIC FOR THE AFTERNOON OF JUNE 6, 1967. * * *" THE EFFECT OF THIS STATEMENT SEEMS TO BE THAT PLACING THE RUSH MESSAGE ON THE MECHANICAL BELT INSTEAD OF HANDING IT DIRECTLY TO THE TRANSMITTAL OPERATOR WAS NOT ROUTINE, OR "NORMAL," HANDLING AND THE ONLY QUESTION WOULD BE WHETHER THE EXTENT OF THE DELAY FROM THIS CAUSE WAS SUFFICIENT TO CAUSE LATE RECEIPT. WHILE THE TIME REQUIRED FOR DELIVERY AFTER TRANSMISSION MAY HAVE VARIED A BIT IF THE MODIFICATION HAD BEEN SENT EARLIER, THE ACTUAL DELIVERY TIME MAY BE CONSIDERED AS ACCEPTABLE EVIDENCE OF THE "NORMAL.' ON THIS BASIS, SINCE THE MESSAGE WAS RECEIVED BY THE CONTRACTING OFFICER 15 MINUTES LATE, AND THE ELAPSED TIME BETWEEN FILING AND TRANSMISSION WAS 22 MINUTES, IT WOULD APPEAR THAT THE MESSAGE WOULD HAVE BEEN RECEIVED ON TIME IF IT HAD BEEN TRANSMITTED WITHIN FIVE MINUTES AFTER FILING, WHICH THE DISTRICT MANAGER'S AFFIDAVIT SAYS WOULD BE NORMAL. WHILE THERE IS NO RECORD OF OTHER MESSAGES WHICH MAY HAVE BEEN SENT AT APPROXIMATELY THE SAME TIME, WE BELIEVE THAT THE EVIDENCE IS SUFFICIENTLY CLEAR AND CONVINCING TO SUPPORT THE CONCLUSION THAT THE FAILURE OF THE MODIFICATION TO ARRIVE BY BID OPENING TIME WAS DUE SOLELY TO ABNORMAL DELAY IN TRANSMISSION. ACCORDINGLY, AND SINCE THERE IS NO EVIDENCE THAT THE MODIFICATION WAS NOT SUBMITTED IN GOOD FAITH, AND NO OTHER BIDDER IS BEING DISPLACED, CONSIDERATION MAY BE GIVEN TO THE MODIFICATION OF THE AUCHTER COMPANY BID.