B-149816, OCT. 3, 1962

B-149816: Oct 3, 1962

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BIDS WERE OPENED AS SCHEDULED. THE CONTRACTING OFFICER WAS HANDED THE FOLLOWING HANDWRITTEN NOTE: "SHENCO SALES "COLUMBUS. PROVIDING HIS IDENTITY IS MADE KNOWN AND HE SIGNS A RECEIPT FOR THE BID. ONLY IF THE WITHDRAWAL IS PRIOR TO THE EXACT TIME SET FOR BID OPENING.'. WHO WAS EMPLOYED BY A COMPETITOR OF SHENCO. SHENCO WAS DETERMINED TO BE THE LOW BIDDER ON ITEMS 28 THROUGH 31. WAS AWARDED A CONTRACT FOR THOSE ITEMS. GOLDSMITH" THE ABOVE WITHDRAWAL COULD NOT BE CONSIDERED TIMELY UNLESS ITS CONTENTS WERE RECEIVED AT ACSSO. WHILE SHENCO CONCEDES THAT THE TELEGRAM WAS NOT RECEIVED AT ACSSO UNTIL 50 MINUTES AFTER BID OPENING TIME. IT CONTENDS THAT THE INTERVAL OF TIME BETWEEN THE RECEIPT OF THE TELEGRAM AT THE ATLANTA GENERAL DEPOT AND ITS DELIVERY TO THE CONTRACTING OFFICER AT ACSSO WAS UNREASONABLE AND NOT NORMAL.

B-149816, OCT. 3, 1962

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY:

IN YOUR LETTER OF AUGUST 29, 1962, YOU ASK WHETHER SHENCO SALES COMPANY, HEREINAFTER REFERRED TO AS SHENCO, MAY BE RELIEVED OF ITS OBLIGATION TO PURCHASE ITEMS 28 THROUGH 31 UNDER CONTRACT NO. DA/S/09 030-AIII-186.

THE ATLANTA CONSOLIDATED SURPLUS SALES OFFICE (ACSSO) ADVERTISED THAT VARIOUS ITEMS OF PROPERTY WOULD BE OFFERED FOR SALE BY THE SPOT BID METHOD ON OCTOBER 27, 1961, AT 9 A.M. BIDS WERE OPENED AS SCHEDULED, AND DURING THE COURSE OF THE SALE, BUT BEFORE AWARD OF THE SUBJECT ITEMS, THE CONTRACTING OFFICER WAS HANDED THE FOLLOWING HANDWRITTEN NOTE:

"SHENCO SALES

"COLUMBUS--- SENDING TELEGRAM WITHDRAWING THEIR BIDS ON ITEMS NO. 26 THRU 31. J. B. PRICE"

ARTICLE "C" OF THE SPECIAL CONDITIONS OF THE INVITATION PROVIDED:

"WITHDRAWAL OF BIDS: BIDS MAY BE WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED PRIOR TO THE EXACT TIME SET FOR OPENING. IN ADDITION, A BID MAY BE WITHDRAWN IN PERSON BY A BIDDER OR HIS AUTHORIZED REPRESENTATIVE, PROVIDING HIS IDENTITY IS MADE KNOWN AND HE SIGNS A RECEIPT FOR THE BID, BUT ONLY IF THE WITHDRAWAL IS PRIOR TO THE EXACT TIME SET FOR BID OPENING.'

THE SIGNATORY OF THE NOTE, WHO WAS EMPLOYED BY A COMPETITOR OF SHENCO, DID NOT DELIVER THE NOTE UNTIL AFTER BID OPENING TIME, DID NOT IDENTIFY HIMSELF AS A REPRESENTATIVE OF SHENCO, DID NOT SIGN A RECEIPT FOR THE BID, AND DID NOT PURPORT TO ACTUALLY WITHDRAW THE BID. IN VIEW OF THESE FACTS THE CONTRACTING OFFICER PROPERLY DISREGARDED THE NOTE AS A WITHDRAWAL OF THE BID. SHENCO WAS DETERMINED TO BE THE LOW BIDDER ON ITEMS 28 THROUGH 31, AND WAS AWARDED A CONTRACT FOR THOSE ITEMS.

HOWEVER, AT 8:07 A.M. ON OCTOBER 27, 1961, PRIOR TO BID OPENING AND PRIOR TO DELIVERY OF THE NOTE TO THE CONTRACTING OFFICER, COMMUNICATIONS PERSONNEL RECEIVED AT THE ATLANTA GENERAL DEPOT, LOCATED THREE MILES FROM ACSSO, THE FOLLOWING TELEGRAM:

"REFERENCE OUR OCTOBER 25TH BID INVITATION 62-12 OPENING OCTOBER 27TH 9:00 A.M. WE WISH TO HEREWITH DELETE OUR BIDS ENTIRELY FOR ITEMS 26 27 28 29 30 AND 31. SHENCO SALES COMPANY DANIEL J. GOLDSMITH"

THE ABOVE WITHDRAWAL COULD NOT BE CONSIDERED TIMELY UNLESS ITS CONTENTS WERE RECEIVED AT ACSSO, THE OFFICE DESIGNATED IN THE INVITATION AS THE PLACE OF BID OPENING, PRIOR TO THE EXACT TIME SET FOR THE OPENING OF BIDS. SEE ASPR 2-305 (A). WHILE SHENCO CONCEDES THAT THE TELEGRAM WAS NOT RECEIVED AT ACSSO UNTIL 50 MINUTES AFTER BID OPENING TIME, IT CONTENDS THAT THE INTERVAL OF TIME BETWEEN THE RECEIPT OF THE TELEGRAM AT THE ATLANTA GENERAL DEPOT AND ITS DELIVERY TO THE CONTRACTING OFFICER AT ACSSO WAS UNREASONABLE AND NOT NORMAL, THUS ESTABLISHING THAT THE LATENESS OF THE TELEGRAM WAS DUE TO MISHANDLING BY THE GOVERNMENT. SEE 2-303.2 (III) (B). THE NORMAL DELIVERY SCHEDULE PROVIDED FOR HOURLY DELIVERY FROM THE DEPOT TO THE MAIL AND RECORDS OFFICE. UNDER THIS SCHEDULE, THE TELEGRAM WAS NOT DELIVERED TO THE MAIL AND RECORDS OFFICE UNTIL 9:11 .M., AND DID NOT REACH ACSSO UNTIL 9:50 A.M. THEREFORE, THE RECORD ESTABLISHES THAT THE TRANSMISSION OF THE TELEGRAM THROUGH REGULAR MESSAGE CHANNELS WAS ENTIRELY NORMAL AND CONSONANT WITH THE THEN ESTABLISHED PROCEDURE.

HOWEVER, YOUR REPORT POINTS OUT THAT MR. PRICE'S NOTE ADVISING THE CONTRACTING OFFICER THAT SHENCO INTENDED TO WITHDRAW ITS BID MIGHT SERVE AS NOTICE TO THE CONTRACTING OFFICER THAT A TELEGRAPHIC WITHDRAWAL MIGHT HAVE ALREADY BEEN RECEIVED BY COMMUNICATIONS PERSONNEL, THUS PLACING THE CONTRACTING OFFICER UNDER A DUTY TO CALL THE MESSAGE CENTER. SUCH AN INQUIRY WOULD HAVE SHOWN THAT THE BID HAD BEEN WITHDRAWN PRIOR TO BID OPENING TIME.

WE AGREE WITH YOU THAT SINCE THE CONTRACTING OFFICER HAD REASON TO BELIEVE THAT THE PROTESTANT MIGHT HAVE WITHDRAWN HIS BID BY TELEGRAM, HE SHOULD HAVE CALLED THE MESSAGE CENTER TO DETERMINE IF WITHDRAWAL HAD ACTUALLY BEEN RECEIVED PRIOR TO BID OPENING. SINCE A CALL WOULD HAVE DISCLOSED TIMELY RECEIPT OF THE WITHDRAWAL, SHENCO MAY BE RELIEVED OF ITS OBLIGATION TO PURCHASE ITEMS 28 THROUGH 31 UNDER CONTRACT NO. DA/S/09-030- AIII-186.