Per Curiam :
This case was referred to Trial Commissioner Herbert N. Maletz, with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on December 10,1965. Exceptions to the commissioner's findings and recommended conclusion of law were filed by the plaintiff. The case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court agrees with the trial commissioner's findings, opinion and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Plaintiff is, therefore, not entitled to recover and the petition is dismissed.
OPINION OE COMMISSIONER
Maletz, Oommissioner: The present suit arises this way. Plaintiff submitted a sealed bid to manufacture engine generator sets for the government at a specified price. Subsequently, a few hours before the scheduled bid opening, plaintiff addressed a telegraphic modification to the government reducing its original bid price by $132,789, which modification was not, however, received until some 30 minutes after the bid opening. At the bid opening it was disclosed that plaintiff's original bid was the low bid. The contracting officer awarded the contract to plaintiff at the reduced price set forth in its bid modification. Plaintiff performed the contract and seeks here to recover the sum of $132,789, claiming that the correct price of the contract was the one contained in its original bid.
Virtually all the facts have been stipulated and are, in summary, as follows: In April 1960, the Chicago, Illinois Procurement Office of the Army Corps of Engineers issued an invitation for bids for tbe manufacture and delivery of electric diesel engine generator sets and related supplies and services. In response, plaintiff, whose principal place of business was located in Stamford, Connecticut, submitted a sealed bid in the amount of $1,952,067 which was received prior to the time set for bid opening. The invitation prescribed that bids would be opened at the Army Engineers Procurement Office in Chicago at 3:00 P.M., Central Daylight Time (CDT), Friday, May 20,1960.
On the day of the bid opening, at 12:16 P.M., Eastern Daylight Time (11:16 A.M., CDT), plaintiff filed with the Western Union Office in Stamford, Connecticut, a telegraphic day letter message decreasing its bid by $132,789 to $1,819,278, with instructions that it be delivered by 2:00 P.M., CDT, to the Chicago Procurement Office of the Corps of Engineers. In view of the 2:00 P.M. mandatory delivery time, the Western Union clerk at Stamford changed the classification of the telegraphic message from day letter to full rate. The message was received in the Chicago Office of Western Union at 12:25 P.M., CDT, but due to misrouting and mutilation by Western Union, it was not received at the Engineers Procurement Office until 3:38 P.M., CDT, May 20,1960. Meanwhile, the bids were opened at 3:00 P.M., CDT, as scheduled, and it was disclosed that plaintiff's sealed bid was the low bid.
On Monday, May 23, 1960, the next working day after May 20, 1960, and before the contracting officer had made any award, plaintiff sent a telegram to the Procurement Office in which it referred to the late delivery of its telegraphic bid modification of May 20 and stated: "If disregarded as set forth in paragraph 2.304 and 2.305 of the ASPE, the attempted modification is withdrawn and does not constitute a voluntary price reduction." The contracting officer ascertained from Western Union that the telegraphic message was sent by plaintiff at 12:16 P.M., EDT, with a mandatory delivery time of 2:00 P.M., CDT, but because of a misrouting by Western Union was not available for delivery to the Procurement Office until 3:30 P.M., CDT. The contracting officer concluded that the delay in receipt of the bid modification was attributable to faulty transmission and delivery by Western Union for which the bidder was not responsible. Cf. Southern, Waldrip & Harvick Co. v. United States, 167 Ct. Cl. 488, 334 F. 2d 245 (1964).
On June 1,1960, plaintiff was awarded the contract at the price ($1,819,278) set forth in its telegraphic bid modification of May 20,1960. On June 6,1960, plaintiff sent a telegram to the Corps of Engineers in which it acknowledged the award and advised that it was proceeding with the contract at the amended bid price of May 20, 1960. In this telegram plaintiff also stated that the delay in receipt of the telegraphic modification was not due solely to the delay in telegraphic transmission since it had erroneously sent the wire by day letter; that the invitation for bids allowed late modifications to be considered only where the delay was in the mails and did not permit consideration of telegraphic modifications received after bid opening; that the relief provided by section 2.305 of the ASPE could not be permitted as it would be contrary to the invitation; that in its telegram of May 23 it had withdrawn the amended bid if it was not properly to be considered in order that it not be construed as a voluntary price reduction which the government could take advantage of prior to award; that it hoped that the Corps of Engineers would reconsider the award price on the basis of the facts therein set forth; and that it was aware of the fact that there was full intention on its part to lower its price but that in fairness to itself it could not pass on a price reduction in an amended bid which, could not have been considered if its original bid would not have otherwise made it the successful bidder. Plaintiff concluded by saying that it was sure the Corps of Engineers would have no objection to its presenting the question to appropriate authorities for final resolution and that meantime it would proceed diligently with the contract on the basis that the award price was the proper price. In reply the Corps of Engineers advised plaintiff that the terms of the award were in accordance with the telegraphic bid modification and that the award was considered proper under the terms of the invitation for bids and the Armed Services Procurement Regulations. Plaintiff then went ahead with performance of the contract and upon the Corps of Engineers' later refusal to make payment on the basis of the price set forth in its original sealed bid brought the present suit.
Relevant to the controversy are paragraphs 2, 3 and 4 of the General Terms and Conditions of the invitation for bids and paragraph 4 of the Special Terms and Conditions of the invitation which provided in part:
2. Submission of Bids — Telegraphic bids will not be considered unless authorized by the invitation; however, bids may be modified by telegraphic notice provided such notice is received prior to the time set for the opening of the bids.
3. Withdrawal of Bids — Bids may be withdrawn by written or telegraphic notice (see 4 below).
4. Late Bids — Bids and modifications or withdrawals thereof received after the time set for opening will not be considered, unless they are received before the award is made, and it is determined by the Government that failure to arrive on time was due solely to delay in the mails for which the bidder was not responsible.
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4. Time of submission: Bids shall be submitted in sufficient time to reach the designated office prior to the time fixed for opening. Bids received after the time fixed for opening are late bids; and the exact date and hour of mailing such bids, as shown by the cancellation stamp or by the stamp of an approved metering device, shall be recorded. Such late bids shall be considered provided they are received before the award has been made and pro vided the failure to arrive on time was due solely to a delay in the mails for which the bidder was not responsible; otherwise, late bids shall not be considered but shall be held unopened until the time of award and. then returned to the bidder, unless other disposition is requested or agreed to by the bidder.
Also relevant to the controversy are the following sections of the Armed Services Procurement Regulations:
§ 2.201 Preparation of forms. The form or forms to be used in the solicitation of bids should contain substantially the following information and any other information required by procedures prescribed by each respective Department.
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(c) Schedule.
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(19) Pending revision of paragraphs 3 and 4 of the Terms and Conditions of the Invitation for Bids on the back of Standard Forms 30 and 33, include the following provision:
Late bids and withdrawals. Bids and modifications or withdrawals thereof received in the office designated in the Invitation after the exact time specified for opening of the bids will not be considered, unless they are (i) submitted by mail or by telegram fif authorized) and received before award is made and (ii) it is determined by the Government that late receipt was due solely to either (A) delay in the mails (or by the telegraph company, if telegraphic bids are authorized) for which the bidder was not responsible or (B) mishandling by the Government after the bid, modification of [sic] withdrawal is received at the Government installation.

§ 2.301 Method of bid submission.
(b) Telegraphic bids shall not be considered unless permitted by the invitation for bids or its accompanying-papers.
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§ 2.304 Modification or withdrawal of bids.
Bids may be modified or withdrawn by written or telegraphic notice received prior to the exact time specified for opening.
§ 2.305 Late modifications and withdrawals.
(a) Modifications and requests for withdrawal which are received in the office designated in the invitation for bids after the exact time specified for opening are "late modifications" and "late withdrawals," respectively. A late modification or late withdrawal shall be considered as being effective only if it is received before award; and either:
(1) It is determined that its lateness was due solely to:
(i) Delay in the mails for which the bidder was not responsible, or
(ii) Delay in telegraphic transmission for which the bidder was not responsible;
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Provided, however, A modification received from an otherwise successful bidder which is favorable to the Government and which would not be prejudicial to other bidders shall be considered at any time that such modification is received.
Against this background, plaintiff contends that the invitation for bids did not authorize consideration of late telegraphic modifications, as distinct from late mailed modifications; that the requirements of an invitation exculpating specified delays must be strictly construed; and that its late telegraphic modification could not be lawfully considered by the contracting officer. It further says that the provisions of the Procurement Regulations here involved cannot be read into the invitation but if they are, there would be a conflict between the provisions of the regulations and the provisions of the invitation resulting in an invitation that is ambiguous and thus construed against the drafter. Lastly, plaintiff maintains that even if the contracting officer had authority to consider a late telegraphic modification, consideration of plaintiff's telegraphic modification was nevertheless improper because its late delivery was not due solely to delay of the telegraph company. For the reasons that follow, it is concluded that these contentions cannot be accepted and that the petition must be dismissed.
First, there seems no doubt that in the circumstances present here the contracting officer was not only authorized but required to consider the late telegraphic modification. For one thing, section 2.305(a) of the Armed Services Procurement Regulations provided that "[a] late modification shall be considered as being effective if it is received before award; and [i] t is determined that its lateness was due to [djelay in telegraphic transmission for which the bidder was not responsible. " The Procurement Regulations were issued under statutory authority and had the force and effect of law and their requirements were thus controlling on the contracting officer; for the contracting officer is an agent of the government and as such may bind the United States only in accordance with the authority granted him by statute or regulation. For this reason, the requirements of the regulations (including section 2.305(a)) must be deemed applicable to the invitation, at least if the latter is to be legally valid. G. L. Christian and Associates v. United States, 160 Ct. Cl. 1, 12, 312 F. 2d 418, 424 (1963), and on rehearing 160 Ct. Cl. 58, 60, 63-7, 320 F. 2d 345, 347, 349-51 (1963), cert. denied 375 U.S. 954. Plaintiff maintains, however, that section 2.201(c) (19) of the regulations, by reason of section 2.201 thereof, was not a mandatory clause within the meaning of Christian; that the contracting officer exercised his discretion by not incorporating it verbatim; and that it therefore follows that section 2.201 (c) (19) was not incorporated verbatim into the invitation. Alternatively, plaintiff asserts that if section 2.201(c) (19) was a mandatory provision, it was applicable only to instances where telegraphic bids and modifications were authorized. It adds that authorization of telegraphic bids and/or modifications was a function specifically within the discretion of the contracting officer ; that though the contracting officer permitted telegraphic modifications, he attached the condition that such modifications be received prior to bid opening; and that since the authorization for the use of telegraphic modifications was within the contracting officer's discretion in the first instance, it was within his authority to limit the scope and extent of use of telegraphic communications which he did by requiring in the invitation that it was necessary that a telegraphic modification be received prior to the time set for the opening of bids. These contentions, however, are premised on a misreading of the regulations. For under the regulations it is clear that while the contracting officer was given discretion as to the inclusion of a provision in the invitation authorizing tele graphic bids (see sections 2.201(c) (19) and 2.301(b)), he lacked snch discretion in respect of telegraphic modifications by reason of section 2.304 of the regulations which afforded the bidder an absolute right to modify his bid by telegraphic notice; section 2.305(a), moreover, required the contracting officer to consider such modification not only if it was received prior to opening but also if it was received prior to award and it was determined that its late receipt was due to delay in telegraphic transmission for which the bidder was not responsible. Nor (as plaintiff says) is there conflict between the invitation and section 2.305(a) with respect to late telegraphic modifications. Basic canons of construction require a reading that will uphold an instrument in its entirety and no provision should "be construed as being in conflict with another unless no other reasonable interpretation is possible." Hol-Gar Mfg. Corp. v. United States, 169 Ct. Cl. 384, 395, 351 F. 2d 972, 979 (1965), and cases there cited. Applying these principles and considering the provision contained in section 2.305(a) of the regulations as applicable to the late bid clause of the invitation, it is reasonable to treat both as having equal vitality; under this construction the contracting officer was required to consider a late bid modification received before award whether the delay was due to the mails or to faulty telegraphic transmission
Without merit is plaintiff's argument that the telegraphic modification was late because plaintiff filed it as a day letter instead of a full-rate telegram. The record is clear that plaintiff filed the message as a day letter but instructed Western Union that the message must be delivered by 2:00 P.M. — an hour before bid opening. The record is also clear that because of the mandatory delivery time of 2:00 P.M., the message was sent by Western Union as a full-rate telegram which arrived in Chicago at 12:25 P.M. But for subsequent misdelivery and mutilation by Western Union the message would have been received prior to bid opening at 3:00 P.M. Hence, plaintiff's designation of the message as a day letter had nothing to do with its late delivery. Moreover, since receipt of the telegraphic modification was delayed by faulty telegraphic transmission for which plaintiff was not responsible, plaintiff could not withdraw the modification after bids had been opened. Refining Associates, Inc. v. United States, 124 Ct. Cl. 115, 109 F. Supp. 259 (1953). Absent mistake, if bids or modifications thereof could be withdrawn after the results of the bidding were made known "frauds innumerable could be perpetrated against the United States." Scott v. United States, 44 Ct. Cl. 524, 527 (1909). See also United States v. Lipman, 122 F. Supp. 284, 287 (E.D. Pa., 1954). Nor is the result affected by the fact that the late telegraphic modification is disadvantageous to the bidder who sent it. "Thus in the case of a legitimately delayed telegraphic amendment lowering the bid price which was already low, the bidder was bound to the lower price, 38 Comp. Gen. 674 (1959) ; 40 Comp. Gen. 466 (1961)." 2 McBride and Wachtel, op. cit. supra, § 10.120.
These considerations aside, since plaintiff was already the low bidder the contracting officer was required by the proviso in section 2.305(a) of the Procurement Regulations to consider its late telegraphis modification reducing its bid price without regard to the reason the telegram arrived late. For that proviso specified that "a modification received from an otherwise successful bidder which is favorable to the Government and which would not be prejudicial to the other bidders shall be considered at any time that such modification is received." The manifest reason for this provision is that consideration of an already low bidder's late reduction of his bid price is in the financial interest of the government and does not prejudice the rights of other bidders, since the low bidder would be entitled to the award in any event. See 38 Comp. Gen. 674 (1959); 40 Comp. Gen. 466 (1961); Comp. Gen. Dec. B-154210 (July 22,1964, p. 4). Therefore, even in the absence of the 2.305(a) proviso or a provision allowing late telegraphic bid modifications, a telegraphic modification received after opening from the low bidder reducing his bid price will be given effect. Leitman v. United States, 104 Ct. Cl. 324, 60 F. Supp. 218 (1945). In that case, plaintiff submitted a sealed bid followed by two telegraphic modifications reducing his original bid which arrived nearly two hours after the time set for the opening of bids. After plaintiff was advised that his original bid was the low bid, he said the telegrams were in error. The contract was awarded at the reduced price specified in the telegrams and plaintiff executed the contract under protest and sued here to recover the difference between the contract price and the price set forth in his original bid. The court dismissed the petition pointing out that if there had been no advertisement for bids and plaintiff had merely submitted an offer in writing modified by the two telegrams, he would have been obligated to perform for the price stated in his last telegram, i.e., the lowest price. The court noted that plaintiff never withdrew the telegraphic modification of his bid; that he allowed the offer to stand without protest until it was determined that he was the low bidder anyway; that plaintiff wanted the telegrams to be considered if this was necessary to make him the low bidder; that only when he learned that he was the low bidder did he intimate that he would like to have the telegrams disregarded but even then did not demand that they be disregarded; that the telegrams were not based upon mistake; and that in these circumstances his offer to perform at the price specified in the telegrams remained in full force and effect until it was accepted by the government. The court further held that the plaintiff was not relieved of his offer because of a regulation incorporated in the instructions to bidders that precluded consideration of telegraphic bid modifications unless they were received prior to bid opening. "The limitation on the consideration of telegraphic modifications", the court said, "was not for plaintiff's benefit but to prevent plaintiff from obtaining an unfair advantage. If defendant, therefore, elects to consider a telegraphic modification received after the time for opening of the bids, plaintiff cannot complain nor can the other bidders, because plaintiff was already the low bidder." 104 Ct. Cl. at 341, 60 F. Supp. at 226.
Similar considerations are applicable here. Neither plaintiff nor the other bidders can complain that the government accepted its reduced price since plaintiff was already the low bidder. And the necessary conclusion that the government was justified in accepting the modification is buttressed by the proviso in section 2.305(a) that a modification under these circumstances "shall be considered at any time that such modification is received." Furthermore, plaintiff here did not withdraw its telegraphic modification at any time prior to award of the contract. It is true that after the bids were opened and plaintiff's original bid was disclosed to be low, plaintiff telegraphed the Procurement Office about late delivery of its bid modification and stated that "If disregarded as set forth in paragraph 2.304 and 2.305 of the ASPS, the attempted modification is withdrawn and does not constitute a voluntary price reduction." Whatever other meaning might be derived from this language, it is apparent that it does not express any unconditional intent on the part of the bidder to withdraw the modification. That the plaintiff had no such intent to withdraw its modi fication also seems apparent from its telegram of June 6,1960, in which it, among other things, acknowledged receipt of the award and advised that it was proceeding with the contract at the price specified in the award "which reflect our amended bid prices of 20 May 1960." There would seem no doubt that here, as in Leitman, plaintiff wanted the telegraphic modification to be considered if this was necessary hi order to make it the low bidder. Only after it learned it was the low bidder did it take a somewhat different tack, but even then it made no unconditional demand that its modification be withdrawn. In these circumstances, the offer as contained in the telegraphic modification remained in effect until accepted by the defendant.
Plaintiff is not entitled to recover and its petition must be dismissed.
FINDINGS on Fact
1. Plaintiff is a domestic corporation, organized under the laws of the State of New York, with its principal office and place of business in Stamford, Connecticut.
2. (a) In the year 1960, plaintiff had sales in excess of $24,000,000, of which at least $13,000,000 was in prime contracts with the United States Government or in subcontracts with other prime contractors to the United States Government.
(b) In the 10 years preceding the award under IFB No. DA-ENG-11-184-60-AF-586, plaintiff had entered prune contracts with the government or subcontracts with other prime contractors to the government involving a total amount in excess of $132,000,000 as revealed by the Kene-gotiation Reports filed by the plaintiff with the Renegotiation Board at the end of each fiscal year.
3. On April 20, 1960, the United States, through the U.S. Army Corps of Engineers, Chicago Procurement Office, Chicago, Illinois, issued Invitation for Bid No. DA-ENG-11-184-60-AF-586 for the submission of sealed bids in accordance with the terms of the invitation. Said invitation, as subsequently modified by four amendments dated April 30, May 3, May 7 and May 10,1960, requested bids for the following supplies and services:
4. A sealed bid, duly executed by an officer of plaintiff, dated May 18, 1960, and addressed to the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, offering to deliver the supplies or services at the bid prices set forth in paragraph 3 above, was mailed to the address set forth in the aforesaid invitation and received at said address in time to be read at the bid opening on Friday, May 20, 1960, at 3:00 P.M. (CUT) by the contracting officer. The total price plaintiff set forth in its bid for items which were subsequently awarded to it was $1,952,067.
5. The bid opening was formally scheduled for Friday, May 20, 1960, at 3:00 P.M. (CDT), at the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, Chicago, Illinois.
6. On Friday, May 20, 1960, at 12:16 P.M. (EDT), the equivalent of 11:16 A.M. (CDT), plaintiff filed with the Western Union Office hi Stamford, Connecticut, a telegraphic day-letter message addressed to the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers (at the address set forth in the aforesaid invitation). The telegraphic day-letter message was as follows:
US ARMY ENGINEER PROCUREMENT OFFICE, CHGO CORP OF ENGINEERS (REPORT DLY MUST BE DELIVERED BY 2 PM (MSRTE) (RTE XS CHGO) ATTN MR M E RAKE REFERENCE INVITATION DA-ENG-11-184-60-AF-586 OPENING 3:00 PM CDST 20 MAY 1960 STOP WE DECREASE OUR PRICE FOR ITEM 1 PACKED LEVEL A AND PACKED LEVEL C AND ITEM 1.1 BY $414. PER UNIT FOR A TOTAL CONTRACTUAL DECREASE OF $41,400. ON THE BASIC REQUIREMENT OF 100 UNITS STOP WE REDUCE OUR PRICE FOR ITEM 1, RANGE 1 BY $393. PER UNIT, RANGE 2 BY $387. PER UNIT RANGE 3 BY $379. PER UNIT AND RANGE 4 BY $375. PER UNIT.
7. (a) There is a distinction between the Western Union full-rate and day-letter service. A full-rate telegram is a message accepted for immediate transmission; the minimum charge is based on 15 words and the approximate delivery time is one hour from time of filing. The day letter is a deferred service, accepted by Western Union for handling on a deferred basis for delivery the same business day, subject to the time the message is filed with Western Union for transmission.
(b) In transmitting day-letter messages between Stamford, Connecticut and Chicago, Illinois, Western Union assures no more than delivery of the message on the same business day.
8. Although the aforesaid telegraphic message was filed in Stamford, Connecticut, as a day letter, the clerk at Stamford noting that it had to be delivered by 2:00 P.M. (CDT) changed the classification to full rate without consulting plaintiff. The telegraphic message was received in Chicago at 12:25 P.M. (CDT) but was misrouted by Western Union. Upon being sent back into the automation system the message was mutilated, and as a result a copy was not available for delivery to the U.S. Army Engineer Procurement Office until 3:30 P.M. (CDT). At 3:38 P.M. (CDT) a Western Union clerk telephoned the message to the Procurement Office. A confirmation of the telephoned message was delivered by messenger at 4:38 P.M. (CDT) on May 20, 1960.
9. (a) Plaintiff's bid dated May 18, 1960 in the amount of $1,952,067 was the low bid prior to receipt of its telegraphic modification of May 20, 1960, reducing its bid to $1,819,278.
(b) On Monday, May 23, 1960, the nest working day after May 20, 1960, and before the contracting officer had made any award under the aforesaid invitation, plaintiff sent to the U.S. Army Engineer Pi'ocurement Office, Chicago Corps of Engineers, at the address set forth in the aforesaid invitation, the following telegram:
REFERENCE OUR TELEGRAPHIC COMMUNICATION OF 20 MAY 1960 ATTEMPTING TO MODIFY OUR PRICE SUBMITTED ON INVITATION DA ENG 11184 60 AF 586. THIS ATTEMPT AT TELEGRAPHIC BID MODIFICATION WAS SENT BY DAY LETTER AT 12:21 EDST ON 20 MAY 1960 WAS NOT RECEIVED BY YOUR OFFICE PRIOR TO THE TIME SET FOR OPENING OF BIDS AT 3:00 PM CDST. WE ARE INFORMED BY WESTERN UNION THAT THE TELEGRAM WAS ACTUALLY RECEIVED BY YOUR OFFICE AT 4:38 PM CDST. IF DISREGARDED AS SET FORTH IN PARAGRAPH 2-304 AND 2-305 OF THE ASPE, THE ATTEMPTED MODIFICATION IS WITHDEAWN AND DOES NOT CONSTITUTE A YOLUNTAEY PEICE EEDUCTION.
10. The foregoing telegram was received by the contracting officer prior to the time he made any award under the aforesaid invitation.
11. Invitation for Bids No. DA-ENG-11-184-60-AF-586 contained the following provisions:
2. SubmissioN op Bids — (a) Bids and modifications thereof shall be enclosed in sealed envelopes addressed to the issuing office, with the name and address of the bidder, the date and hour of opening, and the invitation number on the face of the envelope. Telegraphic bids will not be considered unless authorized by the invitation; however, bids may be modified by telegraphic notice provided such notice is received prior to the time set for the opening of the bids.
3. WithdRawax, op Bids — Bids may be withdrawn by written or telegraphic notice (see 4 below).
4. Late Bros — -Bids and modifications or withdrawals thereof received after the time set for opening will not be considered, unless they are received before the award is made, and it is determined by the Government that failure to arrive on time was due solely to delay in the mails for which the bidder was not responsible.
8. Award op Contract. — (a) The contract will be awarded to that responsible bidder whose bid, conforming to the Invitation for Bids, will be most advantageous to the Government, price and other factors considered.
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(d) A written award mailed (or otherwise furnished) to the successful bidder within the time for acceptance specified in the bid results in a binding contract without further action by either party.
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4. Time op Submission: Bids shall be submitted in sufficient time to reach the designated office prior to the time fixed for opening. Bids received after the time fixed for opening are late bids; and the exact date and hour of mailing such bids, as shown by the cancellation stamp or by the stamp of an approved metering device, shall be recorded. Such late hids shall be considered provided they are received before the award bas been made and provided the failure to arrive on time was due solely to a delay in the mails for which the bidder was not responsible; otherwise, late bids shall not be considered but shall be held unopened until the time of award and then returned to the bidder, unless other disposition is requested or agreed to by the bidder.
12. On June 1,1960, the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, issued to plaintiff an award of Contract No. DA-11-18A-ENG-18126 (P.O. No. 88-AF-46728-50). The contract was awarded at the unit prices set forth in plaintiff's telegraphic day-letter message of May 20, 1960 (finding 6) for a total contract price of $1,819,278. This amount was $132,789 less than the total contract price set forth in plaintiff's sealed bid dated May 18, 1960, to wit, $1,952,067.
13. (a) On June 2, 1960, the contracting officer made a memorandum for the record, as follows:
1. Pursuant to ASPE 2-305 (d), as revised by Eevision 53 dated 1 April 1960, the following memorandum for file is made.
2. Subject IFB provided that all bids and modifications thereto be received by 3:00 PM CDST 20 May 1960. On that date, at that time, all bids which had been received by this office were opened, including bid of Consolidated Diesel Electric Corporation at various unit prices as therein provided. At 3:38 PM CDT Western Union telephoned a message to this office from Consolidated reducing its unit prices from those contained in its bid which had been received prior to bid opening time. At 4:43 PM CDT a telegram message was received from Western Union confirming that which had been read over the phone.
3. By two telegrams of 23 May 1960, Consolidated Diesel pointed out that it had sent its telegraphic bid modification by day letter which was not received by this office prior to bid opening time. These telegrams further stated that if, pursuant to ASPE 2-304 and 305, the attempted modification of bid is disregarded by this office, said attempted modification is not to be construed as a voluntary price reduction. This interpretation of these messages was confirmed by Mr. Dan Eoss, Attorney for Consolidated, in telephone conversation with Mr. B. R. Rosenberg, Office of Counsel, EPOC.
4. Upon inquiry by this office, Mr. W. J. O'Rourke, Manager Customer Service, Western Union Telegraph Company, Chicago, advised by message of 26 May 1960 that Consolidated Diesel had submitted its bid modification wire to Western Union at 12:16 PM EDT in Stamford, Connecticut, that said message was filed as a day letter with instructions that it be delivered by 2:00 PM CDT. Mr. O'Rourke stated that the Western Union clerk changed the classification to full rate instead of day letter in view of the 2:00 PM mandatory delivery. The message was received in Chicago 12:25 PM CDT but because of misrouting by Western Union copy was not available for delivery to this office until 3:30 PM CDT.
5. It is concluded from the foregoing that any negligence or fault on the part of Consolidated in sending its bid modification as a day letter was not the proximate cause of said message being received subsequent to the time for opening of bids. The action of Western Union in converting the message to "full rate" because of the stipulated 2:00 PM delivery time served to place Consolidated in the same position as if it had itself originally filed the telegram as a full rate message. Additionally the. telegram was in fact received by Western Union in Chicago, in ample time to have been delivered to this office prior to bid opening but failed to be so received because of the fault of Western Union. Even if Consolidated had itself originally sent the message "full rate", the same sequence of events would have transpired, all without the fault or negligence of Consolidated.
6. In view of the foregoing, and pursuant to ASPR 2-305 and 2-303.4, it is determined that the delay in receipt of the bid modification in question was attributable to faulty transmission and delivery by Western Union for which the bidder was not responsible and that said modification is therefore properly for consideration in evaluation of bids and award under subject Invitation For Bids. (See also 37 CG 595 and 38 CG 674.)
(b) A copy of such memorandum was never furnished to plaintiff.
14. On June 6, 1960, plaintiff sent the following telegram to the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers:
RECEIPT IS ACKNOWLEDGED OF YOUR TELEGRAPHIC AWARD OF 1 JUNE 1960 ON INVITATION DA-ENG-11-184-60-AF-586. THIS COMPANY IS PROCEEDING WITH THE CONTRACT AS PER YOUR INSTRUCTIONS AT THE PRICE SPECIFIED IN YOUR AWARD WHICH REFLECT OUR AMENDED BID PRICES OF 20 MAY 1960. NEVERTHELESS, WE DIRECT YOUR ATTENTION TO TWO FACTORS.
1. THE DELAY IN RECEIPT OF THE TELEGRAPHIC MODIFICATION OF 20 MAY 1960 WAS NOT DUE SOLELY TO THE DELAY IN TELEGRAPHIC TRANSMISSION. OUR COMPANY ERRONEOUSLY SENT THIS WIRE BY DAY LETTER WHICH IS A DELAYED SERVICE GUARANTEEING DELIVERY ONLY BY THE END OF THE BUSINESS DAY.
2. PARAGRAPH 4 OF THE TERM AND CONDITIONS OF THE INVITATION FOR BID ALLOWS FOR LATE BIDS OR LATE MODIFICATION OF BIDS TO BE CONSIDERED ONLY WHERE THE DELAY IS IN THE MAILS. NO RELAXATION IS PERMITTED FROM THE REQUIREMENT IN PARAGRAPH TWO OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BID PERMITTING TELEGRAPHIC MODIFICATIONS TO BE CONSIDERED PROVIDED THAT THEY ARE RECEIVED PRIOR TO BID OPENING. AS SUCH, THE RELIEF PERMITTED IN SECTION 2-305 (A) (I) (B) OF THE ASPR CANNOT BE PERMITTED IN THAT IT WOULD BE CONTRARY TO THE SPECIFIC TERMS OF THE INVITATION FOR BID. IN A TELEGRAM DATED MAY 23, 1960, WE WITHDREW THE AMENDED BID IF IT WAS NOT PROPERLY TO BE CONSIDERED IN ORDER THAT IT NOT BE CONSTRUED AS A VOLUNTARY REDUCTION OF PRICE WHICH THE GOVERNMENT COULD TAKE ADVANTAGE OF PRIOR TO AWARD. WE ARE IN HOPE THAT YOUR OFFICE WILL RECONSIDER THE AWARD PRICE FOR THE PURPOSE OF INCORPORATION INTO A FORMAL CONTRACT ON THE BASIS OF THE FACTS SET FORTH HEREIN. THIS COMPANY IS AWARE OF THE FACT THAT THERE WAS FULL INTENTION ON ITS PART TO LOWER ITS PRICE, HOWEVER, IN FAIRNESS TO ITSELF, IT CANNOT PASS ON A PRICE REDUCTION IN AN AMENDED BID WHICH COULD NOT HAVE BEEN CONSIDERED IF ITS ORIGINAL BID WOULD NOT OTHERWISE HAVE MADE IT THE SUCCESSFUL BIDDER. WE ARE SURE THAT THE CORPS OF ENGINEERS WOULD HAVE NO OBJECTION TO OUR PRESENTING THIS QUESTION TO APPROPRIATE AUTHORITIES FOR FINAL RESOLUTION. MEANWHILE WE WILL PROCEED DILIGENTLY WITH THE CONTRACT ON THE BASIS THAT THE AWARD PRICES ARE THE PROPER PRICES.
15. On June 14, 1960, the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, advised plaintiff, as follows:
IN REPLY REFER TO ENGPB73-8478 SVD COREY CONTRACTING OFFICER REFERENCE YOUR TELEGRAM OF 6 JUNE 1960 WHEREBY YOU ACKNOWLEDGE RECEIPT OF AWARD OF CONTRACT NO DA-11-184-ENG-18126 PURCHASE ORDER 88-AF-46728-50 AND ADVISE THAT YOU ARE PROCEEDING WITH CONTRACT PERFORMANCE IN ACCORDANCE WITH THE TERMS OF SAID AWARD. IN YOUR TELEGRAM YOU ALSO RAISE CERTAIN QUESTIONS REGARDING THE VALIDITY OF SAID AWARD AS MADE AND EXPRESS THE ASSUMPTION THAT "THE CORPS OF ENGINEERS WOULD HAVE NO OBJECTION TO OUR PRESENTING THIS QUESTION TO APPROPRIATE AUTHORITIES FOR FINAL RESOLUTION". I WISH TO ASSURE YOU THAT THE CORPS OF ENGINEERS HAS NO OBJECTION WHATSOEVER TO YOUR PRESENTING THE QUESTION OF THE VALIDITY OF THIS AWARD TO APPROPRIATE AUTHORITY. THE AWARD TO YOU WAS MADE AFTER CAREFUL AND FULL CONSIDERATION OF ALL PERTINENT EVALUATION FACTORS INCLUDING RESPONSIVENESS OF BIDS YOUR RESPONSIBILITY AS A BIDDER PROPRIETY OF YOUR TELEGRAPHIC MODIFICATION TO YOUR BID AND THE REASONABLENESS OF THE PRICE AT WHICH AWARD WAS MADE. FURTHER I AM OF THE OPINION THAT CONSIDERATION AND ACCEPTANCE OF YOUR BID AS MODIFIED BY YOUR TELEGRAM OF 20 MAY 1960 WAS PROPER UNDER THE TERMS OF THE INVITATION FOR BIDS AND THE ARMED SERVICE PROCUREMENT REGULA TION WHICH CONCLUSION IS SUPPOBTED BY APPLICABLE DECISIONS OF THE COMPTEOL-LEE GENEEAL OF THE UNITED STATES AND THE COURTS.
16. On December 28, 1960, plaintiff submitted its Invoice No. 2059 to the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, for payment of a quantity of one (1) Generator Set, under Item 1.1 of the contract, at a price of $5,950 as set forth in its sealed bid dated May 18, 1960. The price of this item in the telegram of May 20, 1960 was in the amount set forth in the award.
17. On February 1, 1961, the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, prepared and issued DO Voucher No. 4164, BU Voucher No. C-61, in the amount of $5,536, in payment of plaintiff's Invoice No. 2059.
18. On February 15, 1961, plaintiff sent a letter to the contracting officer at the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, reading as follows:
Eeference is made to the above-mentioned contract awarded this company, pursuant to IFB No. DA-Eng-11-184-60-AF-586, opened on May 20,1960. This company on 28 December 1960 submitted its invoice No. 2059 for item 1.1 in the amount of $5,950.00. On February 1, 1961, a voucher was prepared at your activity, DO Voucher No. 4164, Bu Voucher No. C-61, for payment in the amount of $5,536.00.
The amount billed of $5,950 constitutes the bid price timely received by your office and read at bid opening on May 20,1960. We take the view that the aforesaid amount of $5,536.00 is predicated on a late bid which has no legal status, and that the alleged award price of $5,536.00 for item 1.1 and $5,115.00 for item 1 was erroneous.
It is, therefore, requested that your office reprocess this invoice for full payment and adjust the contract price accordingly. In the event you are unwilling to do so, it is requested that you give us a formal finding and decision so that we may take the necessary steps to obtain an adjudication of our respective rights.
19. On February 24, 1961, the contracting officer at the U.S. Army Engineer Procurement Office, Chicago Corps of Engineers, wrote to plaintiff, as follows:
Eeceipt is acknowledged of your letter of 15 February 1961 in which you request that your recently submitted invoice be entered for payment in tbe amount of $5,950.00 as submitted instead of the $5,536.00 which is the price set forth for Item 1.1 in your contract.
Please be advised that in view of the provisions, including item prices, contained in the contract involved, which are in accordance with the terms of the award by the Government of said contract, there is no authority in the undersigned nor any legal basis for granting your request.
You are further advised that it is the opinion of the undersigned that the foregoing decision does not constitute the type of decision regarding a "dispute of fact" falling within the purview of Paragraph 12 of the General Provisions of your contract. Accordingly, the foregoing does not purport to constitute a final decision under said Disputes clause nor will such a decision be rendered you in this matter.
Armed Services Procurement Regulations
20. The Armed Services Procurement Regulations in effect at all times pertinent herein (32 CFR Parts 1-399 (Rev. 1954), Cum. Supp. Jan. 1, 1960) contained the following provisions:
SUBPART B — SOLICITATION OP BIDS
§ 2.200 Scope of subpart. This subpart deals with (a) preparation of forms to be used in the solicitation of bids, (b) methods of soliciting bids, and (c) publicizing of proposed procurements.
§ 2.201 Preparation of forms. The form or forms to be used in the solicitation of bids (see Part 16, Subpart A, of this subchapter) should contain substantially the following information and any other information required by procedures prescribed by each respective Department.
* $ $ $ $
(c) Schedule.
‡
(7) Time, place, and method of delivery (see § 1.306 of this subchapter).
(8) Permission, if any, to submit telegraphic bids.
íjí iji ^
(16) When considered necessary, by the contracting officer, a requirement that all the bids must allow a period for acceptance by the Government of not less than a minimum period stipulated in the Invitation for Bids, and that bids offering less than the minimum stipulated acceptance period will be rejected. The minimum period so stipulated should be no more than that reasonably-required for evaluation of bids and other pre-award processing. To accomplish the foregoing, a paragi'aph substantially as follows may be included in the Schedule or other appropriate place in the Invitation for Bids:
Bid acceptance period. Bids offering less than-days for acceptance by the Government from the date of opening will be considered nonresponsive and will be rejected.
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(19) Pending revision of paragraphs 3 and 4 of the Terms and Conditions of the Invitation for Bids on the back of Standard Forms 30 and 33, include the following provision:
Late bids and withdrawals. Bids and modifications or withdrawals thereof received in the office designated in the Invitation after the exact time specified for opening of the bids will not be considered, unless they are (i) submitted by mail or by telegram (if authorized) and received before award is made and (ii) it is determined by the Government that late receipt was due solely to either (A) delay in the mails (or by the telegraph company, if telegraphic bids are authorized) for which the bidder was not responsible or (B) mishandling by the Government after the bid, modification of [sic] withdrawal is received at the Government installation.
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SUBPART C&emdash;SUBMISSION OF BIDS [REVISED] §
2.301
Method of bid subrni&9ion. (a) To
be considered for award, a bid must comply in all material respects with the invitation for bids so that, both as to the method of submission and as to the substance of any resulting contract, all bidders may stand on an equal footing and the integrity of the formal advertising system may be maintained. (b) Telegraphic bids shall not be considered unless permitted by the invitation for bids or its accompanying papers
. (c) Bidsshould be filled out, executed, and submitted in accordance with the instructions which are furnished to bidders with, or as a part of the bid form that is used. If a bidder uses its own bid ~orm or a letter to submit to submit a bid, the bid may be considered only if (1) the bidder accepts all the terms and conditions of the invitation, and (2) award on the bid would result in a binding contract the terms and conditions of which do not vary from the terms and conditions of the invitation.
§ 2.302 Time of hid submission.
Bids shall be submitted so as to be received in the office designated in the invitation for bids not later than the exact time specified for opening.
§ 2.303 Late bids.
§ 2.303-1 General.
Bids which are received in the office designated in the invitation for bids after the exact time specified for opening are "late bids," even though received only one or two minutes late. Late bids shall not be considered for award except as authorized in § 2.303-1 to 2.303-8.
§ 2.303-2 Consideration for award.
The contracting officer or his authorized representative shall determine whether late bids may be considered for award, in accordance with § 2.303-1 to 2.303-8. A late bid shall be considered for award only if it is received before award; and either:
(a) It is determined that its lateness was due solely to:
(1) Delay in the mails for which the bidder was not responsible, or
(2) Delay by the telegraph company for which the bidder was not responsible, where the invitation specifically authorizes telegraphic bids; or
(b) It is determined that the bid, if submitted by mail or authorized telegram, was received at the Government installation in sufficient time to be received at the office designated in the invitation by the time specified for receipt, and, except for delay due to mishandling on the part of the Government at the installation, would have been received on time at the office designated.
§ 2.303-3 Mailed bids.
(a) The time of mailing of late bids will be determined as follows:
(1) The date and hour shown in a post office cancellation stamp or in a stamp affixed by a metering device shall be considered as the time of mailing;
(2) In the event of conflict between a post office cancellation stamp and a stamp of a metering device, the date and hour shown by the cancellation stamp shall govern;
(3) If tbe envelope or other outer covering shows the date but not the hour of mailing, the time of mailing shall be considered to be the last minute of the date shown, except as stated in subparagraphs (5) and (6) of this paragraph;
(4) If the envelope or other covering does not show the date of mailing, the bid shall be presumed to have been mailed too late to be received in time, except as stated in subparagraphs (5) and (6) of this paragraph;
(5) Information regarding the date and hour of mailing of registered mail, when not ascertainable from the post office cancellation stamp, shall be obtained from the postal authorities indicated in (b) below;
(6) If the bidder demonstrates the date or hour of mailing by clear and convincing evidence which includes substantiation by the post office of mailing, the date or hour thus demonstrated shall be considered the time of mailing.
(b) Information concerning the normal time for mail delivery, and concerning registered mail, shall be obtained by the purchasing activity from the postmaster, superintendent of mails, or a duly authorized representative for that purpose, of the post office serving that activity. When time permits, such information shall be obtained in writing.
§2.303-4 Telegraphic bids.
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, so as not to have been late.
§ 2.303-5 Hand-carried bids.
A late hand-carried bid shall not be considered for award.
§ 2.303-6 Notification.
Upon receipt of any late bid which is received before award, but which, on the basis of available information, cannot be considered for award under § 2.303-2(a), the contracting officer or his authorized representative shall promptly notify the bidder that its bid was received late. Such notification shall include substantially the following information:
Your bid in response to Invitation for Bids No. _, dated_, was received after the time for opening specified in the Invitation. Accordingly, your bid will not be considered for award unless clear and convincing evidence is submitted promptly (and in any event before award) showing that late receipt was due solely to delay in the mails for which you are not responsible.
The foregoing notification may be appropriately modified in the case of late telegraphic bids. § 2.303-7 Disposition.
Late bids which are not considered for award shall be held unopened until after award and then returned to the bidder, unless other disposition is requested or agreed to by the bidder, except that an unidentified bid may be opened solely for purposes of identification as provided in § 2.401.
§ 2.303-8 Records.
The following shall, if available, be included in the purchasing office files with respect to each late bid:
(a) A statement of the date and hour of mailing, filing, or delivery, as the case may be;
(b) A statement of the date and hour of receipt;
(c) The determination of whether or not the late bid was considered, with supporting facts;
(d) A statement of the disposition of the late bid; and
(e) The envelope or other covering, if the late bid was considered for award.
§ 2.304 Modification or withdrawal of bids.
Bids may be modified or withdrawn by written or telegraphic notice received prior to the exact time specified for opening. In addition, a bid may be withdrawn in person by a bidder or his authorized representative: Providing, His identity is made known and he signs a receipt for the bid, but only if the withdrawal is prior to the exact time specified for bid opening.
§ 2.305 Date modifications and withdrawals.
(a) Modifications and requests for withdrawal which are received in the office designated in the invitation for bids after the exact time specified for opening are "late modifications" and "late withdrawals," respectively. A late modification or late withdrawal shall be considered as being effective only if it is received before award; and either:
(1) It is determined that its lateness was due solely to:
(i) Delay in tbe mails for which, the bidder was not responsible, or
(ii) Delay in telegraphic transmission for which the bidder was not responsible; or
(2) It is determined that the modification or withdrawal, if submitted by mail or telegram, was received at the Government installation in sufficient time to be received at the office designated in the invitation by the time specified for receipt and except for delay due to mishandling on the part of the Government at the installation, would have been received on time at the office designated;
Provided, however, A modification received from an otherwise successful bidder which is favorable to the Government and which would not be prejudicial to other bidders shall be considered at any time that such modification is received. In determining whether late modifications or withdrawals should be considered effective, the rules stated for late bids in § 2.803-3 to 2.303-5 shall apply.
(b) Upon receipt of any late modification or late withdrawal which is received before award, but which, on the basis of available information, cannot be considered effective under paragraph (a) (1) of this section, the contracting officer or his duly authorized representative shall promptly notify the bidder that its modification or request for withdrawal was received late. Such notification shall include substantially the following information:
The (modification) (request for withdrawal) of your bid dated_, in response to Invitation for Bids No. -, dated _, was received after the time for opening specified in the Invitation. Accordingly, your (modification) (request for withdrawal) will not be considered effective unless clear and convincing evidence is submitted promptly (and in any event before award) showing that late receipt was due solely to delay in the mails for which the bidder was not responsible.
The foregoing notification may be appropriately modified in the case of late modifications or late withdrawals received by telegraph.
(c) Late modifications or late withdrawals, which are not considered as being effective, shall be held unopened until after award and then returned to the bidder, unless other disposition is requested or agreed to by the bidder, except that:
(1) An unidentified modification or request for withdrawal may be opened solely for purposes of identification, as provided in § 2.401; and
(2) Any modification received from an otherwise successful bidder shall be opened, so as to determine whether it should be considered as stated in the proviso in paragraph (a) of this section.
(d) Eecords of late modifications and late withdrawals shall be maintained in accordance with the record requirements for late bids set forth in § 2.303-8.
CONCLUSION OE Law
On the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and its petition is dismissed.
The opinion, findings of fact and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
Under Western union practice, a full-rate telegram Is a message accepted for immediate transmission; the minimum charge is based on 15 words and the approximate delivery time is one hour from time of filing. The day letter, by contrast, is a deferred service, accepted by Western Union for handling on a deferred basis for delivery the same business day, subject to the time the message is filed with Western Union for transmission. Thus, in transmitting day letter messages between Stamford, Connecticut, and Chicago, Illinois, Western Union assures no more than delivery of the message on the same business day.
Section 2.304 of the Armed Services Procurement Regulations (32 CPR (Rev. 1954) Cum. Supp. Jan. 1, 1960, Ch. 1) provides in part that bids may be modified by telegraphic notice received prior to the time specified for opening. Section 2.305(a) provides that a telegraphic modification received after the time set for opening shall be considered only if received prior to award and it is determined that the lateness was due solely to delay in telegraphic transmission for which the bidder was not responsible; "provided, however, a modification received from an otherwise successful bidder which is favorable to the Government shall be considered at any time that such modification is received." See infra.
In the event of conflict between tbe invitation and tbe regulations, it is apparent that tbe invitation (at least to the extent of the provision involved) would be invalid as beyond tbe authority of tbe contracting officer. What would finally happen in such a situation is a problem that need not be resolved here. Cf. e.g., Moran Brothers, Inc, v. United States, 171 Ct. Cl. 245, 249-50, 346 F. 2d 590, 593 (1965) ; Restatement, Agency (2d) § 164(2).
In an essentially similar situation considered by tbe Comptroller General, tbe invitation specified that no late mailed bid caused by mishandling by the government at tbe installation could be considered for award unless it was mailed by registered or certified mail, while an ASPR provision specified that in such cases late mailed bids could be considered without regard to whether the late bid was sent by registered, certified or ordinary mail. The Comptroller General ruled that the ASPR provision was to be read into the late bid clause of the invitation or was to be applicable to the consideration of bids, and hence allowed consideration of a bid that arrived timely at a government installation by way of ordinary mail but was delivered late to the bid room due to government mishandling. 42 Comp. Gen. 508 (1963). See also 2 McBride and Wachtel Government Gontraets (1965) § 10.110[8].
The dollar amounts set forth under columns marked "Unit Price" and 'Amount" are the prices plaintiff set forth in its sealed bid.
At a later time, the name of plaintiff corporation was changed from Consolidated Diesel Electric Corporation to Condec Corporation.