B-134783, JAN. 10, 1958

B-134783: Jan 10, 1958

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NATIONAL INSTITUTE OF HEALTH: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. ARTICLE 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS EXPRESSLY PROVIDES: "BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED * * *.'. IT LONG HAS BEEN RECOGNIZED THAT PROPOSALS SUBMITTED IN RESPONSE TO GOVERNMENT ADVERTISEMENTS ORDINARILY MAY NOT BE WITHDRAWN AFTER THE BIDS HAVE BEEN OPENED. EVEN BEFORE THE AWARD IS MADE. THE BIDDER IS BOUND TO ACCEPT THE AWARD. IT IS MADE DURING THE SPECIFIED ACCEPTANCE PERIOD.

B-134783, JAN. 10, 1958

TO MR. DONALD R. WATSON, CHIEF, PROCUREMENT SECTION, NATIONAL INSTITUTE OF HEALTH:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1957, PZ 3952, REQUESTING A DECISION AS TO PROPRIETY OF PERMITTING THE EDGAR MORRIS SALES COMPANY, WASHINGTON, D.C. TO WITHDRAW ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 294-12-16-57, ISSUED DECEMBER 2, 1957, BY THE NATIONAL INSTITUTE OF HEALTH, BETHESDA, MARYLAND.

IT APPEARS THAT THE EDGAR MORRIS SALES COMPANY SUBMITTED THE LOWEST RESPONSIVE BID ON THE UPRIGHT FREEZER DESCRIBED IN THE INVITATION. HOWEVER, BY LETTER DATED DECEMBER 19, 1957, WRITTEN THREE DAYS AFTER THE BID OPENING DATE, DECEMBER 16, 1957, THE LOW BIDDER REQUESTED PERMISSION TO WITHDRAW ITS BID ON THE GROUND THAT EFFECTIVE DECEMBER 24, 1957, THE WESTINGHOUSE ELECTRIC CORPORATION HAD PURCHASED ITS ASSETS, AND WOULD NOT BE INTERESTED IN HANDLING OTHER THAN ITS OWN MERCHANDISE, INCLUDING, PRESUMABLY, THE FREEZER OFFERED UNDER THE LOW BID.

ARTICLE 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS EXPRESSLY PROVIDES:

"BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED * * *.'

FURTHERMORE, IT LONG HAS BEEN RECOGNIZED THAT PROPOSALS SUBMITTED IN RESPONSE TO GOVERNMENT ADVERTISEMENTS ORDINARILY MAY NOT BE WITHDRAWN AFTER THE BIDS HAVE BEEN OPENED, EVEN BEFORE THE AWARD IS MADE, AND THE BIDDER IS BOUND TO ACCEPT THE AWARD. REFINING ASSOCIATES, INC. V. UNITED STATES, 109 F.SUPP. 259; UNITED STATES V. LIPMAN, 122 ID. 284, 287; 29 COMP. GEN. 341.

IN VIEW THEREOF, AND SINCE THE REASON UNDERLYING THE LOW BIDDER'S REQUEST WOULD NOT LEGALLY JUSTIFY THE WITHDRAWAL OF ITS PROPOSAL OF DECEMBER 4, 1957, THE AWARD SHOULD BE MADE IN ITS FAVOR, PROVIDED, OF COURSE, IT IS MADE DURING THE SPECIFIED ACCEPTANCE PERIOD.