STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
March 29, 1973
Mr. Kenneth W. Crow
State Engineer
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 73-07
Telephone contents of telegraphic message satisfies South Dakota Bid Law.
Dear Mr. Crow:
We have received a request from you on the following factual situation
Some time ago, a month or two from what I understand, Western Union changed the procedures for handling the delivery of telegrams. At this date Western Union receives telegrams in their Bridgeton, Missouri office, transmits the message by telephone.This has caused us some concern which brings us to the question at hand.
In connection with this, you have asked the following question:
SDCL 5-18-8 concerns withdrawal and modification of bids. We would like to know if a telephone call from Western Union received prior to a bid opening is a permissible means of withdrawing or modifying a bid or if the receipt of the written telegram is a requirement.
The answer to your question is, in my opinion, YES, with qualifications, a telephone call from Western Union is a valid method of withdrawing or modifying a bid.
An analysis of this opinion must start with SDCL 5-18-8:
The sealed bids shall not be opened until the time and place specified in the advertisement therefor, but must be publicly opened and read at said time and place. Any bid may be withdrawn by letter or by telegraphic communications or in person before the time specified in the advertisement therefor. Bids may be modified by mail or by telgraphic notice received at the place designated in the invitation too bid not later than the time set for the opening of bids. Telegraphic modification shall not reveal the bid price but shall provide the addition Or subtraction Or modification so that the final prices or terms will not be known to the public corporation until the sealed bid is opened. Any telegraphic modification may not be withdrawn after the time set for the opening of bids. Telegraphic modifications must be confirmed in writing by the successful bidder before the award of the contract. No bid shall be changed or altered by telephone. (Emphasis added).
The primary rule of statutory construction is to ascertain, and if possible, give effect to the intention or purpose the statute was designed to effect, as expressed by the statute. 82 CJS, Stats. §321; Red Wing Sewer Pipe Co. v. City of Pierre (1915) 36 S.D. 276, 154 N.W. 712; and Watertown Independent School Dist. No.1 v. Thyen, (1968) 83 S.D. 309, 159 N.W. 2d 122.
What, then, is the purpose of this particular statute?
As originally enacted by SL 1939, Ch. 300, §4, and codified as SDC Supp. 1960, §65.0701-4, the statute provided that any bid could be withdrawn by letter or telegraphic communication or in person, but no bid could be changed or altered by any telegraphic communication or by telephone. The statute was amended in 1963 to its present form, which permits changes or alterations in bids by telegraph or by mail but not by telephone.
Common sense would indicate that the reason telephone alterations were prohibited was to eliminate the possibility of misunderstanding the instructions, to prevent collusion, and to prevent other impairments of the competitive bidding process. A letter or a telegraphic communication provides a written record, admissible in court, to prove what the change or alteration actually was. Proof of a telephone conversation must be had by witnesses, who may move away, die, or forget important details of the conversation.
In your factual situation, however, there is a written record, at least in Bridgeton, Missouri, of the telephone message. The written message will ultimately be received by your office via the postal service, and this can be used to confirm the oral message. This would satisfy the purpose for which the statute was amended.
Therefore, compliance with the statute may be accomplished by allowing a bid to be awarded by telephonic notification from a telegraph company, but the written copy of the telegram must be received before the contract is awarded.
This opinion should not be construed as prohibiting an agency from specifying more stringent requirements for submitting bid changes, when such additional requirements are not otherwise prohibited by law.
Respectfully submitted,
Kermit A. Sande
Attorney General
