B-158230, FEB. 3, 1966

B-158230, FEB. 3, 1966

TO AMBROSE-AUGUSTERFER CORPORATION:

WE REFER TO YOUR LETTER OF DECEMBER 23, 1965, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. INDE-2. THIS INVITATION WAS ISSUED BY THE INDEPENDENCE NATIONAL HISTORICAL PARK, DEPARTMENT OF THE INTERIOR, FOR THE INSTALLATION OF A COMPLETE ATMOSPHERIC CONTROL SYSTEM FOR THE EAST AND WEST WINGS OF INDEPENDENCE HALL.

ADDENDUM NO. 2 TO THE INVITATION PROVIDED THAT THE BID OPENING WOULD BE AT 2:00 P.M., OCTOBER 12, 1965. THE BIDS AS SUBMITTED WERE AS FOLLOWS:

CHART

AMBROSE-AUGUSTERFER $279,400.00

ALTERNATE 274,400.00

PEABODY AND WIND 271,140.00

W. M. ANDERSON 277,000.00

THE GOVERNMENT'S ESTIMATE FOR THE PROJECT WAS $255,000.

A TELEGRAPHIC MODIFICATION DATED OCTOBER 12, 1965, AND NOTED BY THE PROCURING ACTIVITY AS ,RECEIVED AT 2:08 P.M.' REDUCED YOUR BID BY $8,000. IF THIS TELEGRAPHIC MODIFICATION IS CONSIDERED, YOUR BID IS LOW FOR THE ALTERNATE. WE ARE ADVISED THAT A CONTRACT FOR THE INSTANT PROCUREMENT WAS EXECUTED WITH PEABODY AND WIND ON NOVEMBER 13, 1965, BUT THAT NOTICE TO PROCEED IS BEING WITHHELD PENDING A DECISION ON THIS MATTER BY OUR OFFICE.

THE RECORD INDICATES THAT YOUR SUBMITTED YOUR TELEGRAPHIC MODIFICATION TO WESTERN UNION FOR TRANSMITTAL TO THE PROCURING OFFICE AT 1:35 P.M. ON THE DAY OF BID OPENING. ON THE FACE OF THE TELEGRAM IT IS STATED "/PLS RUSH)" AND "/BID OPENS 2:00 P.M.).' AT 1:42 P.M. ON THE DAY OF BID OPENING YOU ADVISED A REPRESENTATIVE OF THE CONTRACTING OFFICER BY TELEPHONE THAT A TELEGRAPHIC MODIFICATION OF YOUR BID HAD BEEN DISPATCHED.

A LETTER FROM THE WESTERN UNION TELEGRAPH COMPANY DATED NOVEMBER 9, 1965, TO THE PROCURING ACTIVITY REGARDING YOUR TELEGRAPHIC MODIFICATION STATES AS FOLLOWS:

"ACCORDING TO OUR RECORDS, THIS MESSAGE WAS GIVEN TO US BY TELEPHONE AT 1:35 P.M., E.D.T. AND DELIVERED TO YOU BY MESSENGER AT APPROXIMATELY 2:05 P.M., E.D.T., AN ELAPSED TIME OF 30 MINUTES.

"WE ENDEAVOR TO DELIVER ALL FULL RATE TELEGRAMS WITHIN 60 MINUTES FROM THE TIME THEY ARE GIVEN US BY THE SENDERS AND IN THE VAST MAJORITY OF CASES, THIS OBJECTIVE IS ACHIEVED. DEPENDING UPON THE VOLUME OF TELEGRAMS PASSING OVER OUR FACILITIES, THE OVER-ALL HANDLING TIME VARIES UPWARD FROM A RELATIVELY FEW MINUTES BUT BECAUSE OF THE FLUCTUATING VOLUME AND OTHER CONDITIONS THAT MIGHT CAUSE TEMPORARY INTERRUPTIONS TO OUR SERVICE, WE CANNOT GUARANTEE ANY SPECIFIC TIME OF DELIVERY.

"AS I UNDERSTAND IT, IT WAS ESSENTIAL THAT YOU HAVE A PHYSICAL COPY OF THIS MESSAGE IN YOUR POSSESSION BY 2:00 P.M. WHICH ALLOWED US ONLY 25 MINUTES TO COMPLETE DELIVERY AND WHILE THERE HAVE BEEN TIMES WHEN TELEGRAMS HAVE BEEN COMPLETELY HANDLED IN THAT SPACE OF TIME, THEY ARE THE EXCEPTIONS, RATHER THAN THE RULE.'

THE MEMORANDUM FROM YOUR ATTORNEY DATED NOVEMBER 18, 1965, CONTENDS THAT THE FEDERAL PROCUREMENT REGULATIONS PERMIT THE CONSIDERATION OF A LATE TELEGRAPHIC MODIFICATION WHERE NOTICE OF THE MODIFICATION IS GIVEN BY TELEPHONE BEFORE BID OPENING. IN THIS CONNECTION YOUR ATTORNEY HAS CITED OUR DECISION B-142110, MARCH 10, 1960. YOUR ATTORNEY'S MEMORANDUM STATES: "JUST BECAUSE WESTERN UNION DOES NOT FOLLOW THE PREVAILING PRACTICE OF TELEPHONING THE CONTENTS OF TELEGRAMS BEFORE DELIVERY IN THE PHILADELPHIA AREA WHERE THE ADDRESSEE IS A FEDERAL AGENCY, AMBROSE-AUGUSTERFER IS NOT AT FAULT.' YOUR ATTORNEY CONTENDS THAT YOUR TELEGRAPHIC MODIFICATION SHOULD BE CONSIDERED PURSUANT TO THE AUTHORITY OF SOUTHERN, WALDRIP, AND HARVICK COMPANY V. THE UNITED STATES, 334 F.2D 245 (CT.CL., 1964). ALSO, IT IS ALLEGED THAT ANY ADVICE FROM WESTERN UNION REGARDING THE NORMAL TIME FOR DELIVERY OF A TELEGRAM WOULD NOT BE APPLICABLE TO YOUR MESSAGE SINCE YOUR MODIFICATION WAS AN "RX" TYPE OF MESSAGE.

OUR DECISION B-142110, MARCH 10, 1960, CITED BY YOUR ATTORNEY, CONCERNED A SITUATION WHERE TELEPHONIC NOTICE OF A TELEGRAPHIC MODIFICATION WAS GIVEN TO THE PROCURING ACTIVITY BY WESTERN UNION PRIOR TO BID OPENING. THE TELEGRAM DID NOT PHYSICALLY ARRIVE UNTIL AFTER BID OPENING. WE HELD IN THAT DECISION THAT SINCE IT WAS THE ESTABLISHED PRACTICE FOR THE TELEGRAPH COMPANY TO NOTIFY THE ADDRESSES BY TELEPHONE, WE WOULD HAVE NO OBJECTION TO THE CONSIDERATION OF A TELEGRAPHIC MODIFICATION OF A BID TELEPHONED BY A RECEIVING TELEGRAPHIC OFFICE TO THE CONTRACTING OFFICE PRIOR TO BID OPENING.

WITH RESPECT TO TELEPHONE NOTICE OF TELEGRAPHIC MODIFICATIONS GIVEN BY BIDDERS RATHER THAN THE TELEGRAPH OFFICE, THE POSITION OF OUR OFFICE STATED IN 39 COMP. GEN. 586, 589, IS AS FOLLOWS:

"CONCERNING 1 ABOVE, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE BIDS BY TELEPHONE ARE NOT ACCEPTABLE UNDER THE TERMS OF AN INVITATION, ADVICE BY TELEPHONE THAT A BID MODIFICATION HAS BEEN MAILED OR TELEGRAPHED IS NOT TO BE A CONSIDERED FACTOR IN DETERMINING WHETHER SUCH MODIFICATION IS EFFECTIVE WHEN THE MODIFICATION IS NOT RECEIVED UNTIL AFTER THE TIME SET FOR BID OPENING. SEE 17 COMP. GEN. 961; 35 ID. 426. WE CONSIDER THE HOLDING ON THIS POINT IN THOSE CASES TO BE CONTROLLING IN THE PRESENT CASE.'

THE POSITION OF OUR OFFICE IS CONSISTENT WITH FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.302 WHICH PROVIDES:

"* * * WHERE TELEGRAPHIC BIDS ARE AUTHORIZED, A TELEGRAPHIC BID RECEIVED IN SUCH OFFICE BY TELEPHONE FROM THE RECEIVING TELEGRAPH OFFICE NOT LATER THAN THE TIME SET FOR OPENING OF BIDS SHALL BE CONSIDERED IF SUCH BID IS CONFIRMED BY THE TELEGRAPH COMPANY BY SENDING A COPY OF THE TELEGRAM WHICH FORMED THE BASIS FOR THE TELEPHONE CALL.'

THERE IS NO PROVISION IN THE FEDERAL PROCUREMENT REGULATIONS AUTHORIZING A BIDDER TO SUBMIT A TELEGRAPHIC BID BY TELEPHONE TO THE PROCURING OFFICE.

YOUR ATTORNEY'S MEMORANDUM OF NOVEMBER 18, 1965, SPECIFICALLY ADVISES THAT IT IS NOT THE PRACTICE FOR WESTERN UNION TO GIVE TELEPHONIC NOTICE OF TELEGRAPHIC MODIFICATIONS TO FEDERAL AGENCIES IN THE PHILADELPHIA AREA. CONSEQUENTLY, THERE IS NO BASIS FOR APPLYING B 142110, MARCH 10, 1960, TO THE INSTANT SITUATION. IN THE CIRCUMSTANCES OF THIS CASE THE RULE, QUOTED ABOVE, FROM 39 COMP. GEN. 586, WOULD BE APPLICABLE AND SINCE THERE IS NO INDICATION THAT THE INSTANT INVITATION PROVIDED FOR TELEPHONIC BIDS, YOUR BID MAY NOT BE CONSIDERED ON THE BASIS OF THE TELEPHONE NOTICE WHICH YOU GAVE TO THE PROCURING OFFICE.

IN THE SOUTHERN CASE, SUPRA., CITED BY YOUR ATTORNEY, THE COURT HELD THAT THE CONTRACTING OFFICER HAD THE RESPONSIBILITY FOR MAKING A DETERMINATION REGARDING THE TIMELINESS OF A TELEGRAPHIC MODIFICATION. THE COURT REFUSED TO QUESTION THE CONTRACTING OFFICER'S DECISION THAT THE TELEGRAPHIC MODIFICATION HAD BEEN TIMELY RECEIVED SINCE THE COURT FELT THAT IT SHOULD NOT MAKE A DE NOVO FACTUAL DETERMINATION ON THIS ISSUE. IN THE INSTANT CASE THE RECORD SHOWS THAT THE CONTRACTING OFFICER HAD INITIALLY DECIDED TO ACCEPT YOUR TELEGRAPHIC MODIFICATION; HOWEVER, UPON FURTHER CONSIDERATION IN VIEW OF THE ADVICE FROM WESTERN UNION, QUOTED ABOVE, THE CONTRACTING OFFICER DECIDED THAT YOUR TELEGRAPHIC MODIFICATION SHOULD NOT BE CONSIDERED. WE SEE NO INCONSISTENCY IN THE HOLDING OF THE SOUTHERN CASE, SUPRA., AND THE CONTRACTING OFFICER'S ACTION IN THE INSTANT CASE.

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.

WITH REGARD TO "RX" MESSAGES OUR OFFICE HAS STATED IN 40 COMP. GEN. 290, 293 AS FOLLOWS:

"THE NORMAL, USUAL AND FORESEEABLE DELAYS ARE THOSE DELAYS WHICH MIGHT BE EXPECTED OR ANTICIPATED IN THE NORMAL ROUTINE BY WHICH THE TELEGRAPH COMPANY ACCOMPLISHES ITS WORK. IT IS UNDERSTOOD THAT THE TELEGRAPH COMPANY WILL STATE THAT UNDER NORMAL CONDITIONS A TELEGRAM SHOULD BE DELIVERED IN A CERTAIN PERIOD OF TIME AND THAT RX MESSAGES HAVE PREFERENCE OVER REGULAR TELEGRAMS, ETC. IN THIS CONNECTION, HOWEVER, WE UNDERSTAND THAT CERTAIN WESTERN UNION OFFICIALS CONTACTED WITH REFERENCE TO THIS PARTICULAR CASE WOULD NOT CONSIDER THAT THE TRANSMISSION TIME INVOLVED WAS UNUSUAL OR ABNORMAL. DELIVERY IS ALWAYS CONDITIONED ON VOLUME AND OTHER CONDITIONS AT THE SENDING AND RECEIVING OFFICE. THERE ARE ALSO FOR CONSIDERATION THE QUESTIONS OF WHETHER THE ADDRESSEE HAS TIE-IN FACILITIES AND OTHER FACTORS AFFECTING DELIVERY TO HIM.'

THE LETTER FROM WESTERN UNION, QUOTED ABOVE, INDICATES THAT THERE WAS NO ABNORMAL DELAY IN THE TRANSMISSION OF YOUR TELEGRAPHIC MODIFICATION. CONSEQUENTLY, WE FIND THAT YOUR LATE TELEGRAPHIC MODIFICATION MAY NOT BE CONSIDERED.