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B-137634, JUL. 5, 1963

B-137634 Jul 05, 1963
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TO THE COPPER STATE IRON AND METAL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MAY 21. YOU STILL CONTEND THAT SUNDAY SHOULD NOT HAVE BEEN EXCLUDED IN COMPUTING THE DATE BY WHICH THE GOVERNMENT WAS REQUIRED TO ACCEPT YOUR BID. SUPPORT OF SUCH CONTENTION YOU REFER TO THE FACT THAT ON THE FACT OF THE INVITATION BIDDERS WERE ADVISED THAT THE PROPERTY OFFERED FOR SALE COULD BE INSPECTED BETWEEN THE HOURS OF 8:00 A.M. WAS NOT TIMELY SINCE THE FIFTH DAY STIPULATED FOR ACCEPTANCE OF SAME FELL ON SUNDAY. YOU CONTEND THAT THE ACCEPTANCE OF YOUR BID SHOULD HAVE BEEN MADE ON SATURDAY AND THAT SINCE ACCEPTANCE WAS NOT MADE UNTIL MONDAY IT WAS UNTIMELY. SINCE THE TIMELINESS OF THE GOVERNMENT'S ACCEPTANCE AND THE ACCEPTANCE ITSELF INVOLVE LEGAL CONSIDERATIONS WHEREAS THE STATEMENT IN THE INVITATION CONCERNING THE HOURS AND DAYS DESIGNATED FOR INSPECTION WAS MERELY ADVISORY WITHOUT ANY LEGAL IMPLICATIONS SO FAR AS CONCERNS YOUR CLAIM.

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B-137634, JUL. 5, 1963

TO THE COPPER STATE IRON AND METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 21, 1963, RENEWING YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM FOR REFUND OF THE SUM OF $9,885.60 DEPOSITED WITH YOUR BID ON 1,200 GROSS TONS OF HELIX SCRAP, ADVERTISED FOR SALE UNDER ITEM 7 OF NAVAJO ORDNANCE DEPOT, FLAGSTAFF, ARIZONA, INVITATION FOR BIDS NO. AVI-02-081-S-58-4, ISSUED MARCH 31, 1958.

YOU STILL CONTEND THAT SUNDAY SHOULD NOT HAVE BEEN EXCLUDED IN COMPUTING THE DATE BY WHICH THE GOVERNMENT WAS REQUIRED TO ACCEPT YOUR BID. SUPPORT OF SUCH CONTENTION YOU REFER TO THE FACT THAT ON THE FACT OF THE INVITATION BIDDERS WERE ADVISED THAT THE PROPERTY OFFERED FOR SALE COULD BE INSPECTED BETWEEN THE HOURS OF 8:00 A.M. TO 3:30 P.M., EXCEPT FOR SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. YOU CITE TWO COURT CASES (PATRICK V. FAULKE, 45 MO. 312, 314 AND BARCROFT V. ROBERTS, 92 N.C. 249 (232) ( IN SUPPORT OF YOUR CONTENTION THAT THE GOVERNMENT'S ACCEPTANCE OF YOUR BID ON MONDAY, MAY 12, 1958, WAS NOT TIMELY SINCE THE FIFTH DAY STIPULATED FOR ACCEPTANCE OF SAME FELL ON SUNDAY. THEREFORE, YOU CONTEND THAT THE ACCEPTANCE OF YOUR BID SHOULD HAVE BEEN MADE ON SATURDAY AND THAT SINCE ACCEPTANCE WAS NOT MADE UNTIL MONDAY IT WAS UNTIMELY.

THE FACT THAT THE INVITATION ADVISED THE BIDDERS THAT THE ARTICLES OFFERED FOR SALE COULD BE INSPECTED DAILY DURING THE HOURS SPECIFIED EXCEPT FOR SATURDAYS AND SUNDAYS HAS NO BEARING ON THE PROPRIETY OF THE ACTION TAKEN ON YOUR CLAIM, SINCE THE TIMELINESS OF THE GOVERNMENT'S ACCEPTANCE AND THE ACCEPTANCE ITSELF INVOLVE LEGAL CONSIDERATIONS WHEREAS THE STATEMENT IN THE INVITATION CONCERNING THE HOURS AND DAYS DESIGNATED FOR INSPECTION WAS MERELY ADVISORY WITHOUT ANY LEGAL IMPLICATIONS SO FAR AS CONCERNS YOUR CLAIM.

THE REASONS WHY SUNDAY WAS EXCLUDED IN COMPUTING THE DATE BY WHICH THE GOVERNMENT WAS REQUIRED TO ACCEPT YOUR BID WAS EXPLAINED TO YOU IN OUR DECISION OF DECEMBER 18, 1958, 38 COMP. GEN. 445, AND WILL NOT BE REPEATED HERE. FURTHER, IN OUR LETTER OF MAY 29, 1959, YOU WERE ADVISED THAT NO BASIS EXISTED FOR CONSIDERING THAT THE FIFTH, OR LAST, DAY OF THE PERIOD OF TIME WITHIN WHICH THE GOVERNMENT WAS REQUIRED TO ACCEPT YOUR BID FELL ON SATURDAY, MAY 10. IN THAT REGARD IT WAS STATED THAT IT IS ESTABLISHED BY THE WEIGHT OF JUDICIAL AUTHORITY THAT WHEN A PERIOD OF TIME IS TO BE RECKONED "FROM" A CERTAIN DAY (IN THIS INSTANCE MAY 6, 1958), UNLESS THERE IS SOMETHING IN THE CONTRACT OR CIRCUMSTANCES TO INDICATE A DIFFERENT INTENTION, THE DAY FROM WHICH THE TIME IS RECKONED WILL BE EXCLUDED FROM THE COMPUTATION.

SINCE THE RULE APPLIED IN ESTABLISHING THE TIMELINESS OF THE GOVERNMENT'S ACCEPTANCE OF YOUR BID WAS BASED UPON SPECIFIC STATUTORY PROVISIONS OF THE ARIZONA REVISED STATUTES OF 1956 (SECTIONS 1-301AND 1 303) THE RULES APPLIED IN THE TWO COURT CASES CITED BY YOU MAY NOT BE APPLIED WITH RESPECT TO YOUR CLAIM. WE WERE FULLY AWARE OF THE FACT THAT JUDICIAL DECISIONS ON THE POINT IN ISSUE ARE NOT ENTIRELY IN AGREEMENT, BUT IN THE ABSENCE OF ANY SHOWING OF A FEDERAL RULE TO THE CONTRARY WE CONCLUDED THAT THE SITUATION IN THIS CASE SHOULD PROPERLY BE CONTROLLED BY THE LAW OF ARIZONA, WHICH APPEARS TO BE CLEARLY STATED IN THE STATUTES CITED. FIND ALSO THAT THE RULE APPLIED IN THE PATRICK CASE IS NO LONGER FOLLOWED, EVEN IN MISSOURI. MANCHESTER IRON WORKS V. E. L. WAGNER CONSTRUCTION CO., 107 S.W. 2D 89, 95.

FOR THE FOREGOING REASONS WE FIND NO BASIS FOR MODIFICATION OF THE ACTION HERETOFORE TAKEN ON YOUR CLAIM ON THE BASIS OF YOUR LETTER OF MAY 21, 1963, OR YOUR LETTER OF JUNE 21, 1963.

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