B-130889, MAR. 26, 1957

B-130889: Mar 26, 1957

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TO GINGHER MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 28 AND LETTERS FROM YOUR ATTORNEY DATED FEBRUARY 28 AND MARCH 14. PARAGRAPH 10 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES THAT NO BID OR MODIFICATION THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL BE CONSIDERED EXCEPT WHEN THE BID OR MODIFICATION ARRIVES BY MAIL AFTER THE TIME SET FOR OPENING. BEFORE AWARD IS MADE. IT IS DETERMINED BY THE GOVERNMENT THAT NONARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAIL FOR WHICH BIDDER WAS NOT RESPONSIBLE. SUCH BID OR MODIFICATION THEREOF WILL BE CONSIDERED. THE FACTS IN THE MATTER ARE SET FORTH IN THE FINDINGS OF THE BOARD OF REVIEW.

B-130889, MAR. 26, 1957

TO GINGHER MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 28 AND LETTERS FROM YOUR ATTORNEY DATED FEBRUARY 28 AND MARCH 14, 1957, THE LATTER ENCLOSING A MEMORANDUM IN SUPPORT OF YOUR POSITION RELATIVE TO YOUR PROTEST AGAINST THE DECISION RENDERED BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, UNDER DOCKET NO. 361 SUSTAINING THE DECISION OF THE CONTRACTING OFFICER, NATIONAL BUYING DIVISION, FEDERAL SUPPLY SERVICES, GSA, IN REJECTING YOUR BID ON STELL HAT AND COAT RACKS, CLASS 26, PART V, SUPPLEMENT 1, DUE TO THE LATE SUBMISSION THEREOF.

THE INVITATION INVOLVED PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 10:00 A.M., DECEMBER 20, 1956. PARAGRAPH 10 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS PROVIDES THAT NO BID OR MODIFICATION THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL BE CONSIDERED EXCEPT WHEN THE BID OR MODIFICATION ARRIVES BY MAIL AFTER THE TIME SET FOR OPENING, BUT BEFORE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT NONARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAIL FOR WHICH BIDDER WAS NOT RESPONSIBLE, SUCH BID OR MODIFICATION THEREOF WILL BE CONSIDERED.

THE FACTS IN THE MATTER ARE SET FORTH IN THE FINDINGS OF THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, UNDER DOCKET NO. 361. WHILE THE TESTIMONY SUBMITTED BY YOU AND THE GOVERNMENT BEFORE THE BOARD IS NOT CONSISTENT IN CERTAIN DETAILS, THE ESSENTIAL FACTS ARE NOT DISPUTED. APPEARS THAT TWO REPRESENTATIVES HAND CARRIED YOUR BID AND ARRIVED AT THE ROOM WHERE THE BIDS WERE TO BE OPENED AT APPROXIMATELY 9:30 A.M. ON THE DAY SET FOR THE OPENING; THAT A BID ROOM EMPLOYEE REQUESTED ONE REPRESENTATIVE OF EACH OF THE BIDDERS PRESENT TO SIGN THE RECORD OF BID OPENING (GSA FORM 1081) INDICATING THEIR PRESENCE AT THE BID OPENING; AND THAT YOUR MR. M. L. WHITE SIGNED THE FORM ON YOUR BEHALF. THE REPRESENTATIVES DID NOT HAND IN YOUR BID UPON ARRIVAL BUT WAITED, IT IS ALLEGED, UNTIL A BID ROOM EMPLOYEE WOULD REQUEST IT. YOUR BID WAS FINALLY HANDED OVER TO A BID ROOM EMPLOYEE AND IMMEDIATELY STAMPED IN. THE STAMP RECORDED THE TIME AT 10:02 A.M., OR TWO MINUTES AFTER THE HOUR SPECIFIED.

IT IS URGED THAT THE BID SHOULD HAVE BEEN CONSIDERED FOR AWARD DUE TO THE EQUITIES INVOLVED AND FOR THE REASON THAT THE COMPANY'S REPRESENTATIVES ACTED IN ENTIRE GOOD FAITH.

IT HAS BEEN CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. THE PURPOSE OF THE REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

UNDER THE EXPRESS TERMS OF THE INVITATION, HAND CARRIED BIDS WERE REQUIRED TO BE SUBMITTED PRIOR TO 10:00 A.M. YOUR BID WAS NOT SUBMITTED PRIOR TO THE TIME SPECIFIED. YOUR LACK OF KNOWLEDGE OF THE OTHER BIDS AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT FOR CONSIDERATION. THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT SUCH CONSIDERATIONS TO AFFECT OR ALTER THE FIXED AND EXACT TIME CLEARLY STATED IN AN INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE SYSTEM. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETUATION OF FRAUDS.

ACCORDINGLY, YOU ARE ADVISED THAT WE DO NOT FEEL THAT WE CAN CONSIDER THE AWARD MADE BY THE GENERAL SERVICES ADMINISTRATION AS ILLEGAL.