B-139406, SEP. 18, 1959

B-139406: Sep 18, 1959

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ATTORNEYS AT LAW: FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF TEXAS AVIATION SUPPLY COMPANY OF SAN ANTONIO. TO PURCHASE ANY OR ALL OF THE ITEMS DESCRIBED HEREIN UPON WHICH PRICES ARE QUOTED. - IS CLOSED.'. -THE BIDDER AGREES THAT (1) THE BID WILL NOT BE WITHDRAWN WITHIN THE TIME SPECIFIED FOR ACCEPTANCE AFTER THE OPENING OF BIDS (60 CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE BIDDER). WILL DURING THAT TIME REMAIN FIRM AND IRREVOCABLE. THAT (2) THE BIDDER WILL PAY TO THE GOVERNMENT THE PURCHASE PRICE OF THE PROPERTY IN ACCORDANCE WITH THE BID IF ACCEPTED. IF A BID DEPOSIT IS REQUIRED. IS ENCLOSED. " AND SUBSTITUTED THEREFOR THE PHRASE "WILL WIRE DEPOSIT.'. THE FACTS RELATIVE TO THE RECEIPT OF THE BID DEPOSIT ARE SET FORTH BY THE DEPARTMENT OF THE AIR FORCE AS FOLLOWS: "THE BIDS RESULTING FROM THIS INVITATION WERE SCHEDULED TO BE OPENED AT 9:00 A.M.

B-139406, SEP. 18, 1959

TO DIBRELL, GARDNER, AND DOTSON, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF TEXAS AVIATION SUPPLY COMPANY OF SAN ANTONIO, TEXAS, RELATIVE TO THE AWARD OF ITEM 31 TO CALIFORNIA AIR MOTIVE CORPORATION UNDER INVITATION NO. 41 608-S-59-53, ISSUED BY THE REDISTRIBUTION AND MARKET DIVISION, KELLY AIR FORCE BASE, TEXAS.

THE INVITATION (STANDARD FORM 114, REVISED, AUGUST 1950) SOLICITED BIDS ON THE SALE OF, AMONG OTHERS, ITEM 31, COVERING A QUANTITY OF METAL SCRAP. PAGE 1 OF THE STANDARD FORM READS:

"A BID DEPOSIT OF 20 PERCENT OF THE TOTAL AMOUNT BID, IN THE FORM OF POSTAL OR EXPRESS MONEY ORDER, OR CASHIER'S OR CERTIFIED CHECK, OR SUCH OTHER FORM OF SECURITY AS MAY BE ACCEPTABLE TO THE CONTRACTING OFFICER, MADE PAYABLE TO THE TREASURER OF THE UNITED STATES, MUST ACCOMPANY THE BID.

"IN COMPLIANCE WITH THE ABOVE INVITATION, AND SUBJECT TO ALL THE GENERAL SALE TERMS AND CONDITIONS AND ANY SPECIAL CONDITIONS, THE UNDERSIGNED OFFERS AND AGREES, IF THIS BID BE ACCEPTED WITHIN-------- CALENDAR DAYS (90 CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE BIDDER) AFTER DATE OF THE OPENING, TO PURCHASE ANY OR ALL OF THE ITEMS DESCRIBED HEREIN UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM. BID DEPOSIT IN THE AMOUNT OF $ ------- IS CLOSED.'

PARAGRAPH 4 OF THE GENERAL SALE TERMS AND CONDITIONS, PAGE 2 PROVIDE:

"4. BID GUARANTEE. ---THE BIDDER AGREES THAT (1) THE BID WILL NOT BE WITHDRAWN WITHIN THE TIME SPECIFIED FOR ACCEPTANCE AFTER THE OPENING OF BIDS (60 CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE BIDDER), AND WILL DURING THAT TIME REMAIN FIRM AND IRREVOCABLE, AND THAT (2) THE BIDDER WILL PAY TO THE GOVERNMENT THE PURCHASE PRICE OF THE PROPERTY IN ACCORDANCE WITH THE BID IF ACCEPTED. IF A BID DEPOSIT IS REQUIRED, THE BID MUST BE ACCOMPANIED BY SAID BID DEPOSIT. IN THE EVENT OF ANY DEFAULT BY THE BIDDER OR ANY FAILURE BY THE BIDDER TO COMPLY WITH ALL TERMS AND CONDITIONS OF THIS CONTRACT, ANY DEPOSIT MADE BY THE BIDDER MAY BE APPLIED BY THE GOVERNMENT TO ANY LOSS, COST, AND EXPENSE OCCASIONED TO THE GOVERNMENT THEREBY, INCLUDING ANY LOSS, COST, AND EXPENSE INCURRED IN SELLING THE PROPERTY AND INCLUDING ANY DIFFERENCE BETWEEN THE AMOUNT SPECIFIED IN THE BID AND THE AMOUNT FOR WHICH THE GOVERNMENT MAY SELL THE PROPERTY, IF THE LATTER AMOUNT BE LESS THAN THE FORMER. * * *.'

PARAGRAPH 18 OF THE ADDITIONAL SALE TERMS AND CONDITIONS PROVIDES IN PART AS FOLLOWS:

"18. DEPOSIT, BOND, OR LETTER OF CREDIT TO ACCOMPANY BIDS: BIDS MUST BE ACCOMPANIED BY BID DEPOSITS OF CASHIER'S CHECK, BANK DRAFT, CERTIFIED CHECK, EXPRESS OR POSTAL MONEY ORDER MADE PAYABLE TO THE TREASURER OF THE UNITED STATES (AT PAR VALUE) DEPOSITED IN ACCORDANCE WITH TREASURY DEPARTMENT REGULATIONS (SEE ARMED SERVICES PROCUREMENT REGULATION 10-202) OR BY A BID BOND ON THE STANDARD FORM 24,"BID BOND," OR STANDARD FORM 34,"ANNUAL BID BOND," OR BY AN IRREVOCABLE COMMERCIAL LETTER OF CREDIT ISSUED BY A BANK ESTABLISHED IN THE UNITED STATES IN AN AMOUNT EQUAL TO AT LEAST 20 PERCENT OF THE TOTAL SUM OF THE BID. BIDS RECEIVED NOT ACCOMPANIED BY THE REQUIRED BID DEPOSIT, BID BOND, OR LETTER OF CREDIT MAY NOT BE CONSIDERED. * * *.'

THE TEXAS AVIATION SUPPLY COMPANY SUBMITTED THE SECOND HIGHEST BID RECEIVED ON ITEM 31, IN THE AMOUNT OF $12,398,76, AND ENCLOSED, WITH ITS BID, BONDS IN THE AGGREGATE AMOUNT OF $3,000 TO COVER THE 20 PERCENT REQUIRED BID DEPOSIT. THE CALIFORNIA AIR MOTIVE CORPORATION SUBMITTED THE HIGHEST BID, IN THE AMOUNT OF $13,782.60. HOWEVER, IT DELETED THE WORD "ENCLOSED" FROM THE SENTENCE "BID DEPOSIT IN THE AMOUNT OF $ ------ IS ENCLOSED," AND SUBSTITUTED THEREFOR THE PHRASE "WILL WIRE DEPOSIT.' THE BLANK SPACE OF THIS SENTENCE THE CALIFORNIA AIR MOTIVE CORPORATION INSERTED THE FIGURE $2,800.

THE FACTS RELATIVE TO THE RECEIPT OF THE BID DEPOSIT ARE SET FORTH BY THE DEPARTMENT OF THE AIR FORCE AS FOLLOWS:

"THE BIDS RESULTING FROM THIS INVITATION WERE SCHEDULED TO BE OPENED AT 9:00 A.M. CENTRAL STANDARD TIME 24 MARCH 1959 AT KELLY AFB, TEXAS BY THE CONTRACTING OFFICER. THE WESTERN UNION MONEY ORDER AND THE ACCOMPANYING MESSAGE FILED AT NORTH HOLLYWOOD, CALIFORNIA BY THE CALIFORNIA AIR MOTIVE CORPORATION ON 23 MARCH 1959 AT 2 P.M. PACIFIC STANDARD TIME WAS RECEIVED THE SAME DAY IN THE KELLY AFB COMMUNICATIONS CENTER AT 5:02 P.M. CENTRAL STANDARD TIME FROM THE LOCAL WESTERN UNION OFFICE IN SAN ANTONIO, TEXAS. NO ATTEMPT WAS MADE TO DELIVER THE MESSAGE TO THE CONTRACTING OFFICER ON 23 MARCH 1959 AS THE MONEY ORDER WAS RECEIVED AFTER NORMAL DUTY HOURS. HOWEVER, ON 24 MARCH 1959 AT 8:25 A.M. CENTRAL STANDARD TIME, THE KELLY AFB COMMUNICATIONS CENTER TELEPHONED THE CONTENTS OF THE MONEY ORDER AND THE ACCOMPANYING MESSAGE TO THE CONTRACTING OFFICER. FIVE MINUTES LATER AT 8:30 A.M. WESTERN UNION MONEY ORDER DRAFT NO. MZ84397 IN THE AMOUNT OF $2800.00 AND THE ACCOMPANYING MESSAGE WAS RELEASED BY THE KELLY AFB COMMUNICATIONS CENTER FOR DELIVERY TO THE CONTRACTING OFFICER THROUGH ADMINISTRATIVE SERVICES. A COPY OF THE MESSAGE WRITTEN ON WESTERN UNION FORM 3300C BY THE CENTER ON 24 MARCH 1959 APPEARS IN THE FILE.'

THE CONTRACTING OFFICER DETERMINED THAT THE BID DEPOSIT IN THE FORM OF A WESTERN UNION MONEY ORDER WAS SUBSTANTIALLY EQUIVALENT TO AN EXPRESS MONEY ORDER AND THAT AT MOST IT WAS A MINOR DEVIATION, SINCE IT DID NOT AFFECT ITS BID IN ANY WAY AND WAS NOT PREJUDICIAL TO OTHER BIDDERS. ON THE BASIS OF SUCH DETERMINATION THE BID OF CALIFORNIA AIR MOTIVE CORPORATION WAS ACCEPTED.

YOU PROTEST THE ACTION TAKEN ON THE BASIS THAT THE BID OF CALIFORNIA AIR MOTIVE CORPORATION WAS NOT ACCOMPANIED BY A DEPOSIT AND THAT THE BID DEPOSIT WHEN RECEIVED FROM THE HIGHEST BIDDER WAS IN THE FORM OF A WESTERN UNION TELEGRAM AND DID NOT COMPLY WITH THE SPECIFIED CONDITIONS OF PARAGRAPH 18 QUOTED ABOVE.

THE BID DEPOSIT WAS IN THE FORM OF A WESTERN UNION MONEY ORDER RATHER THAN A TELEGRAM. A WESTERN UNION MONEY ORDER IS AN ACCEPTED MEDIUM OF EXCHANGE AND, WHILE NOT SPECIFICALLY SPECIFIED IN THE INVITATION AS ACCEPTABLE AS A DEPOSIT, IT IS SIMILAR TO VARIOUS FORMS OF DEPOSIT WHICH ARE LISTED AS ACCEPTABLE. THE INTEREST OF THE GOVERNMENT WAS PROTECTED BY SUCH AN ORDER TO THE SAME DEGREE AS SEVERAL OF THE LISTED ACCEPTABLE FORMS OF DEPOSIT. THE WESTERN UNION MONEY ORDER WAS IN THE HANDS OF THE GOVERNMENT PRIOR TO THE BID OPENING AND WAS COMPLETELY OUT OF THE BIDDER'S CONTROL.

THERE IS NO REQUIREMENT THAT THE BID DEPOSIT OR BOND ACTUALLY BE ENCLOSED WITH THE BID. THE REQUIREMENT IS THAT THE BID AT THE TIME OF THE BID OPENING BE SUPPORTED BY A BID DEPOSIT. IT CAN BE SENT SEPARATELY. ALL PAPERS, THE BID ITSELF, AND LATER MODIFICATIONS THEREOF, TOGETHER WITH ANYTHING ELSE PERTAINING TO THE BID, ARE CONSIDERED AS ONE AT THE TIME FIXED FOR THE OPENING OF THE BIDS.

WE DO NOT BELIEVE THAT OUR DECISION OF FEBRUARY 5, 1959, B-137319, REFERRED TO BY YOU, IS APPLICABLE. THE BID HERE INVOLVED WAS SUPPORTED BY A BID DEPOSIT. THE SOLE QUESTION IS AS TO THE FORM OF THE DEPOSIT. OUR OPINION, THE WESTERN UNION MONEY ORDER PROTECTED THE INTEREST OF THE GOVERNMENT, AND THE IRREGULARITY, EVEN IT IT SHOULD BE SO CALLED, WAS IMMATERIAL AND OF A MINOR NATURE WHICH COULD PROPERLY BE WAIVED.