B-147213, NOV. 24, 1961

B-147213: Nov 24, 1961

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TO CALIFORNIA TRUCK PARTS AND EQUIPMENT CO.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 16. IT IS REPORTED. THAT YOUR BID WHICH WAS POSTMARKED AT 8 P.M. STAMPED FOR AIRMAIL DELIVERY WAS NOT RECEIVED AT THE BID OPENING SITE UNTIL 2:15 P.M. IS FURTHER REPORTED THAT AT THE TIME OF RECEIPT OF YOUR BID. PROMPTED YOUR PROTEST SINCE YOU CONTEND THAT YOU WERE NOT RESPONSIBLE FOR THE LATE DELIVERY OF YOUR BID. ARTICLE E (A) OF THE SPECIAL CONDITIONS OF THE SPOT BID SALE INVITATION PROVIDED: "BIDS WILL BE SUBMITTED PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS. BIDS RECEIVED AFTER THE TIME SO FIXED ARE LATE BIDS. SUCH LATE BIDS WILL BE CONSIDERED. PROVIDED THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE.

B-147213, NOV. 24, 1961

TO CALIFORNIA TRUCK PARTS AND EQUIPMENT CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 16, 1961, PROTESTING THE AWARD OF CONTRACTS BY THE PUEBLO ORDNANCE DEPOT, UNDER SPOT BID SALE INVITATION NO. 05-001-S-62-7.

IN RESPONSE TO THE INVITATION ISSUED ON AUGUST 4, 1961, BY THE CONSOLIDATED SURPLUS SALES OFFICE, PUEBLO ORDNANCE DEPOT, PUEBLO, COLORADO, IT APPEARS THAT YOU SUBMITTED A BID OFFERING TO PURCHASE,AMONG OTHERS, ITEM NO. 17, COVERING ONE LOT OF LINE, ASSY (CRIMPED), FLEXIBLE, ETC., FOR A TOTAL PRICE OF $198.95 FOR THE LOT, AND ITEM NO. 29, COVERING 18 TANKS, FUEL ASSY, MFG., C., AT $3.18 EACH. OPENING OF THE SPOT BIDS STARTED, AS SCHEDULED, AT 1 P.M. ON SEPTEMBER 5, 1961. IT IS REPORTED, HOWEVER, THAT YOUR BID WHICH WAS POSTMARKED AT 8 P.M. ON SEPTEMBER 1, 1961, IN LOS ANGELES, CALIFORNIA, AND STAMPED FOR AIRMAIL DELIVERY WAS NOT RECEIVED AT THE BID OPENING SITE UNTIL 2:15 P.M. ON SEPTEMBER 5, 1961. IS FURTHER REPORTED THAT AT THE TIME OF RECEIPT OF YOUR BID--- OPENED FOR CONSIDERATION FOR AWARD OF ANY ITEMS NOT THEN AWARDED--- ITEMS NOS. 1 THROUGH 110 HAD BEEN OFFERED FOR SALE AND AWARDS MADE THEREON WHICH INCLUDED AWARDS ON THE BASIS OF THE THEN HIGH BIDS RECEIVED OF $151 FOR ITEM 17 AND $3.10 EACH FOR THE 18 TANKS COVERED BY ITEM NO. 29. THE AWARD TO OTHER BIDDERS OF ITEMS NOS. 17 AND 29, ON WHICH YOU HAD SUBMITTED THE HIGH BIDS, PROMPTED YOUR PROTEST SINCE YOU CONTEND THAT YOU WERE NOT RESPONSIBLE FOR THE LATE DELIVERY OF YOUR BID.

ARTICLE E (A) OF THE SPECIAL CONDITIONS OF THE SPOT BID SALE INVITATION PROVIDED:

"BIDS WILL BE SUBMITTED PRIOR TO THE TIME FIXED IN THE INVITATION FOR BIDS. BIDS RECEIVED AFTER THE TIME SO FIXED ARE LATE BIDS, * * *. SUCH LATE BIDS WILL BE CONSIDERED, PROVIDED THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE, AND PROVIDED FURTHER, THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE; *

ARTICLE G OF THE SPECIAL CONDITIONS ALSO PROVIDED:

"* * * UNLESS OTHERWISE STATED BY THE GOVERNMENT REPRESENTATIVE OPENING THE BIDS, AWARDS WILL BE CONSIDERED AS MADE, ITEM BY ITEM, TO THE HIGHEST BIDDER AS THE SALE PROGRESSES * * *.'

THUS, WHILE YOUR BID HAD BEEN MAILED IN SUFFICIENT TIME FOR TIMELY DELIVERY FOR THE SCHEDULED BID OPENING AND, THEREFORE, WAS FOR CONSIDERATION UNDER THE CAUSE OF DELAY PROVISO OF THE FOREGOING ARTICLE E, IT IS SPECIFICALLY PROVIDED THEREIN THAT LATE BIDS WILL BE CONSIDERED ONLY IF THEY ARE RECEIVED BEFORE AN AWARD HAS BEEN MADE. MOREOVER, ARTICLE G, SET FORTH ABOVE, PROVIDES, IN EFFECT, THAT AWARDS WILL BE CONSIDERED AS MADE, ITEM BY ITEM, TO THE HIGHEST BIDDER AS THE SALE PROGRESSES. THEREFORE, THE TERMS OF AN AWARD UNDER A SPOT BID SALE SUCH AS HERE INVOLVED MUST BE CONSTRUED AS PRECLUDING CONSIDERATION OF BIDS NOT TIMELY RECEIVED AT THE PLACE OF SALE REGARDLESS OF THE CAUSE OF THE DELAY.

ACCORDINGLY, WE MUST CONCLUDE THAT THE AWARD ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION.