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B-144842, MAR. 10, 1961

B-144842 Mar 10, 1961
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INCORPORATED: WE HAVE YOUR LETTER OF FEBRUARY 10. IN WHICH IT WAS HELD THAT THE BID SUBMITTED BY DRESSER ELECTRONICS IN RESPONSE TO INVITATION NO. 33-600-61- 80. THE RELEVANT FACTS ARE THAT THE DRESSER BID WAS DELIVERED BY COMMERCIAL AIR FREIGHT TO THE FREIGHT RECEIVING WAREHOUSE IN THE SAME GOVERNMENT INSTALLATION AS THE OFFICE DESIGNATED FOR RECEIPT OF BIDS APPROXIMATELY 1 HOUR AND 20 MINUTES PRIOR TO THE BID OPENING DEADLINE BUT WAS NOT RECEIVED BY THE PROPER OFFICE UNTIL WELL AFTER BID OPENING. ALL OF WHICH WERE SPELLED OUT IN DETAIL. APPEARS TO BE THAT SINCE THE BID WAS RECEIVED AT THE GOVERNMENT INSTALLATION PRIOR TO THE DEADLINE IT IS NOT A LATE BID AND SHOULD. HAVE BEEN CONSIDERED FOR AWARD.

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B-144842, MAR. 10, 1961

TO TECHNICAL INDUSTRIAL CONSULTANTS, INCORPORATED:

WE HAVE YOUR LETTER OF FEBRUARY 10, 1961, REQUESTING RECONSIDERATION OF OUR DECISION B-144842, FEBRUARY 3, 1961, IN WHICH IT WAS HELD THAT THE BID SUBMITTED BY DRESSER ELECTRONICS IN RESPONSE TO INVITATION NO. 33-600-61- 80, ISSUED BY THE AMC AERONAUTICAL SYSTEMS CENTER, SHOULD NOT BE OPENED AND CONSIDERED FOR AWARD.

THE RELEVANT FACTS ARE THAT THE DRESSER BID WAS DELIVERED BY COMMERCIAL AIR FREIGHT TO THE FREIGHT RECEIVING WAREHOUSE IN THE SAME GOVERNMENT INSTALLATION AS THE OFFICE DESIGNATED FOR RECEIPT OF BIDS APPROXIMATELY 1 HOUR AND 20 MINUTES PRIOR TO THE BID OPENING DEADLINE BUT WAS NOT RECEIVED BY THE PROPER OFFICE UNTIL WELL AFTER BID OPENING. WE HELD THAT UNDER THE LANGUAGE OF THE INVITATION FOR BIDS, THE ARMED SERVICES PROCUREMENT REGULATION AND OUR PRIOR DECISIONS ON THE MATTER, ALL OF WHICH WERE SPELLED OUT IN DETAIL, IT HAD TO BE REGARDED AS A LATE BID NOT WITHIN ONE OF THE EXCEPTIONS WHICH WOULD PERMIT ITS CONSIDERATION.

YOUR VIEW, AS EXPRESSED IN YOUR LETTER OF FEBRUARY 10, APPEARS TO BE THAT SINCE THE BID WAS RECEIVED AT THE GOVERNMENT INSTALLATION PRIOR TO THE DEADLINE IT IS NOT A LATE BID AND SHOULD, THEREFORE, HAVE BEEN CONSIDERED FOR AWARD. SPECIFICALLY, YOU STATE:

"THE ADMINISTRATIVE REGULATIONS OF G.A.O. WHICH WERE APPARENTLY APPLIED, WITHOUT NOTICE OR OPPORTUNITY TO BE HEARD BY DRESSER, WERE LIMITED TO "LATE BIDS . . .' IT IS RATHER CLEAR CONSTITUTIONALLY AND OTHERWISE, THAT THE PRINCIPLE OF "LATE BIDS ...' WOULD NOT AND COULD NOT APPLY IN A SITUATION IN WHICH THE BID WAS NOT IN FACT LATE. THE INSTANT BID WAS RECEIVED AT THE PROPER GOVERNMENT INSTALLATION WITHIN THE TIME LIMITS PRESCRIBED AND WAS THEREAFTER MISHANDLED BY GOVERNMENT AGENTS, COMPLETELY BEYOND THE CONTROL OF DRESSER. DRESSER CANNOT REASONABLY BE HELD ACCOUNTABLE FOR ITS FAILURE TO ANTICIPATE AND FORESEE THE GENERAL INEPTNESS, LETHARGY AND CARELESSNESS OF THE GOVERNMENT AND ITS AGENTS. FURTHERMORE, YOUR ATTEMPT TO PROJECT THE BLAME FOR THE NEGLIGENCE OF GOVERNMENT AGENTS ON THE BASIS OF AN ALLEGED ERRONEOUS ELECTION BY DRESSER TO FORWARD BY AIR FREIGHT INSTEAD OF "NORMAL FREIGHT-HANDLING PROCEDURE" IS COMPLETELY WITHOUT MERIT AND CONSTITUTES NOTHING MORE THAN A SHAM ARGUMENT. USING THE G.A.O. REGULATIONS CITED, NO METHOD OF FORWARDING CAN BE RECOGNIZED AS "NORMAL FREIGHT-HANDLING PROCEDURE" OTHER THAN SUBMISSION BY MAIL (OR BY TELEGRAPH IF AUTHORIZED), WHICH IS ALSO COMPLETELY FOOLISH.

"IT MAY BE LOGICALLY ARGUED THAT THE DRESSER BID WHILE NOT SUBMITTED ENTIRELY BY MAIL, DID IN FACT BECOME A PART OF THE MAIL PROCESS UPON DELIVERY AT THE GOVERNMENT INSTALLATION AND ACCORDINGLY COMES WITHIN THE PROVISIONS OF SEC. 2-303.2 (1) (A) OF THE ARMED SERVICES PROCUREMENT REGULATIONS.'

WE DO NOT UNDERSTAND YOUR ARGUMENT AS TO THE PROPRIETY OF THE VIEW THAT THE BID MAY BE REGARDED AS PART OF THE MAIL PROCESS UPON DELIVERY AT THE GOVERNMENT INSTALLATION. IT IS OUR UNDERSTANDING THAT BY DEPOSIT IN RECEPTACLES PROVIDED FOR THAT PURPOSE OF THE UNITED STATES POST OFFICE DEPARTMENT AFTER PREPARATION IN THE FORM AND MANNER PRESCRIBED BY LAW AND POSTAL REGULATIONS. WITH THAT UNDERSTANDING--- AND YOU HAVE PROVIDED NO REASONABLE GROUNDS FOR CHALLENGING ITS VALIDITY--- THE BID CANNOT BE REGARDED AS EVER HAVING BEEN MAILED.

IT APPEARS FROM THE FIRST PARAGRAPH QUOTED FROM YOUR LETTER THAT YOU INTERPRETED OUR DECISION OF FEBRUARY 3, 1961, TO MEAN THAT ONLY TRANSMISSION BY MAIL, OR TELEGRAPH IF AUTHORIZED, IS REGARDED AS "NORMAL FREIGHT-HANDLING PROCEDURE.' THAT PHRASE WAS INCLUDED IN THE LAST PARAGRAPH OF OUR DECISION. THE INTENDED IMPORT OF THE PARAGRAPH WAS THAT A BIDDER ELECTING TO SUBMIT HIS BID BY FREIGHT COULD NOT EXPECT THAT THE BID WOULD RECEIVE ANY MORE EXPEDITIOUS TREATMENT THAN IS ACCORDED FREIGHT GENERALLY. WE HAVE BEEN ADVISED BY THE ADMINISTRATIVE OFFICE THAT THE BID WAS DELIVERED TO THE CONTRACTING OFFICE WITHIN THE NORMAL TIME FOR HANDLING FREIGHT, ALLOWING FOR THE INTERVENING WEEK END. IN OUR VIEW, CONTRARY TO THE POSITION TAKEN IN YOUR LETTER, THE DELIVERY OF THE BID TO AN EMPLOYEE AUTHORIZED TO RECEIVE FREIGHT CANNOT BE REGARDED AS DELIVERY TO THE OFFICE OF THE BUYER FOR THE AMC AERONAUTICAL SYSTEMS CENTER AS CALLED FOR BY THE INVITATION.

OUR JURISDICTION IN MATTERS OF THIS KIND IS TO INSURE THAT CONTRACTS INVOLVING THE EXPENDITURE OF APPROPRIATED FUNDS ARE AWARDED IN ACCORDANCE WITH APPLICABLE LAW AND REGULATIONS PROMULGATED PURSUANT THERETO. THE REGULATIONS APPLIED IN THIS INSTANCE WERE ISSUED BY THE SECRETARY OF DEFENSE UNDER THE PROVISIONS OF 10 U.S.C. 2202 AND NOT BY OUR OFFICE.

WE CAN ASSURE YOU THAT OUR CONCLUSION IN THIS MATTER WAS REACHED AFTER DUE DELIBERATION AND CAREFUL CONSIDERATION OF ALL OF THE FACTS AVAILABLE TO US. WE SINCERELY REGRET THAT YOU DO NOT AGREE WITH OUR REASONING. UPON REVIEW OF THE MATTER, HOWEVER WE FIND NO BASIS FOR NOT ADHERING TO OUR ORIGINAL DETERMINATION.

YOU REQUEST IN YOUR LETTER THAT A TIME BE FIXED FOR A FORMAL HEARING BEFORE AN IMPARTIAL JUDGE OF FACT AND LAW AND THAT ARRANGEMENTS BE MADE FOR THE PRESENCE OF WITNESSES AND INTERESTED PARTIES. YOU ALSO WISH TO BE ADVISED OF ANY "ADDITIONAL CONSTITUTIONAL AND CONTRACTUAL RIGHTS AVAILABLE BEFORE COMPLETE EXHAUSTION OF ADMINISTRATION (SIX) REMEDIES.'

OUR OFFICE HAS NEITHER THE AUTHORITY NOR THE FACILITIES TO HOLD FORMAL HEARINGS OR TO REQUIRE OR REQUEST THE PRESENCE OF WITNESSES. OUR DETERMINATIONS ARE BASED ON THE WRITTEN RECORD. AS A MATTER OF COURTESY WE WILL INFORMALLY DISCUSS ANY MATTER BEFORE OUR OFFICE WITH ANY PERSONS HAVING A LEGITIMATE INTEREST AT THEIR REQUEST. HOWEVER, ANY PERTINENT STATEMENT AS TO FACT OR LAW SHOULD BE SUBMITTED IN WRITING TO ASSURE ITS APPROPRIATE CONSIDERATION. WE SHALL BE GLAD TO RECONSIDER THE INSTANT MATTER UPON THE SUBMISSION OF A DOCUMENTED DISCUSSION OF FACT OR LAW WHICH IS REASONABLY RELEVANT TO THE QUESTIONS RAISED.

AS TO YOUR RIGHT TO FURTHER ADMINISTRATIVE CONSIDERATION, OUR DETERMINATIONS ARE BINDING AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. ANY ADMINISTRATIVE REMEDY MUST THEREFORE LIE WITHIN OUR OFFICE. AS TO ANY OTHER REMEDY, THE FEDERAL COURTS HAVE TAKEN THE POSITION THAT THE STATUTES GOVERNING PUBLIC PROCUREMENT WERE ADOPTED PRIMARILY FOR THE PROTECTION OF THE UNITED STATES AND AN UNSUCCESSFUL BIDDER GENERALLY MAY NOT OBTAIN JUDICIAL REVIEW OF THE PROPRIETY OF AN AWARD. FRIEND V. LEE, 221 F.2D 96; O-BRIEN V. CARNEY, 6 F.SUPP. 761.

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