B-151934, JUL. 22, 1963

B-151934, JUL. 22, 1963

TO MR. EDMOND M. JAMES

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 27, 1963, WITH ENCLOSURES, PROTESTING THE ACTION TAKEN BY THE DEFENSE SURPLUS SALES OFFICE, TINKER AIR FORCE BASE, OKLAHOMA, WITH RESPECT TO THE BID SUBMITTED BY YOU IN RESPONSE TO SALE INVITATION NO. 34-S-63-76.

IN RESPONSE TO THE INVITATION, ISSUED ON JUNE 3, 1963, BY THE SURPLUS SALES OFFICE, YOU SUBMITTED SPOT BIDS OFFERING TO PURCHASE, HARVEST, AND REMOVE ITEMS NOS. 1 THROUGH 6, COVERING VARIOUS QUANTITIES OF PRAIRIE HAY IN DESIGNATED AREAS OF THE UNITED STAES NAVAL AMMUNITION DEPOT, MCALESTER, OKLAHOMA, AT THE PRICES SET FORTH IN YOUR BIDS. BIDS WERE OPENED, AS SCHEDULED, AT THE SALES OFFICE OF THE AIR FORCE BASE AT 10 A.M. ON JUNE 14, 1963, AND AWARDS OF ALL SIX ITEMS WERE MADE AND THE SALE COMPLETED AT APPROXIMATELY 10:20 A.M. ON THAT DATE. IT WAS REPORTED THAT AT THE TIME BIDS WERE OPENED AND ACCEPTED THE GOVERNMENT SALES CONTRACTING OFFICER WAS NOT IN POSSESSION OF THE BIDS SUBMITTED BY YOU. THE CONTRACTS THAT WERE AWARDED FOR ITEMS NOS. 1, 2 AND 6, ON WHICH IT APPEARS THAT YOUR RESPECTIVE BIDS WERE $1, $652 AND $52 HIGHER THAN THE NEXT HIGHEST BIDS RECEIVED, PROMPTED THE PROTEST FROM YOU SINCE IT IS YOUR CONTENTION THAT YOUR BIDS WERE TIMELY MAILED AND RECEIVED AND SHOULD HAVE BEEN CONSIDERED FOR AWARD ALONG WITH ALL OTHER BIDS.

MORE SPECIFICALLY, YOU ADVISED IN YOUR LETTER DATED JUNE 27, 1963, THAT YOUR BID WAS FORWARDED ON JUNE 12, 1963, BY REGISTERED MAIL FROMMCALESTER, OKLAHOMA, WHICH WAS 48 HOURS--- INSTEAD OF THE SUGGESTED 24-HOUR TIME ALLOWANCE FOR MAILING--- PRIOR TO THE SCHEDULED OPENING TIME; THAT THE POST OFFICE DEPARTMENT AT MCALESTER HAD ADVISED YOU THAT YOUR BID HAD LEFT THAT STATION AT 7 P.M. ON JUNE 12, 1963; THAT IT HAD ARRIVED AT OKLAHOMA CITY AT 12 MIDNIGHT AND WAS DELIVERED TO THE TINKER AIR FORCE BASE HEADQUARTERS MAIL CLERK AT 10 P.M. ON JUNE 13, 1963; AND THAT A MR. WELLER, THE SALES CONTRACTING OFFICER, SIGNED FOR IT AT 1 P.M. ON JUNE 14, 1963. PRIMARILY, IT IS YOUR CONTENTION THAT SINCE YOUR BID WAS TIMELY MAILED AND SINCE IT WAS IN THE HANDS OF THE MAIL CLERK FOR THE TINKER AIR FORCE BASE HEADQUARTERS, AN AGENT OF THE CONTRACTING OFFICER, 24 HOURS PRIOR TO THE HOUR SET FOR THE OPENING OF BIDS, YOUR BID WAS TIMELY RECEIVED AND SHOULD THEREFORE HAVE BEEN CONSIDERED FOR AWARD.

ARTICLE N:CONSIDERATION OF LATE BIDS OF THE SPECIAL CONDITIONS OF INVITATION NO. 34-S-63-76 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"MAILED-IN BIDS MUST BE IN THE POSSESSION OF THE SALES CONTRACTING OFFICER BY THE CLOSE OF BUSINESS ON THE DAY PRECEDING THE DAY OF SALE. MAILED-IN BIDS RECEIVED AFTER THE CLOSE OF BUSINESS ON THE DAY PRECEDING THE DAY OF THE SALE WILL BE CONSIDERED IN THE SAME MANNER AS LATE BIDS. LATE MAILED BID WILL BE CONSIDERED ONLY IF RECEIVED BY THE SALES CONTRACTING OFFICER BEFORE THE TIME SET FOR THE START OF THE SALE AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR MISHANDLING ON THE PART OF THE GOVERNMENT. * * * IN NO EVENT WILL MAILED-IN BIDS BE CONSIDERED IF RECEIVED BY THE SALES CONTRACTING OFFICER AFTER THE TIME SET FOR THE START OF THE SALE, REGARDLESS OF THE CAUSE OF THE DELAY.'

AS STATED ABOVE YOUR BIDS WERE NOT RECEIVED BY MR. WELLER, THE SALES CONTRACTING OFFICER, UNTIL 1 P.M. ON JUNE 14, 1963, OR THREE HOURS AFTER THE TIME SET FOR THE START OF THE SALE. THUS, NOTWITHSTANDING THAT YOUR BIDS APPEAR TO HAVE BEEN MAILED IN AMPLE TIME AND UNDER NORMAL CIRCUMSTANCES SHOULD HAVE BEEN RECEIVED BY THE SALES CONTRACTING OFFICER IN TIME TO HAVE BEEN CONSIDERED ALONG WITH OTHER BIDS RECEIVED, SUCH FACT MAY NOT, UNDER ANY CIRCUMSTANCES, BE ACCEPTED AS NULLIFYING THE PROVISIONS OF THE FOREGOING ARTICLE "N," WHICH EXPRESSLY STATES THAT IN NO EVENT WILL SUCH LATE BIDS BE CONSIDERED REGARDLESS OF THE CAUSE OF DELAY. IN THIS REGARD, IT MIGHT VERY WELL BE THAT THE GOVERNMENT DISPOSAL OFFICERS WERE LESS THAN REASONABLY DILIGENT IN SEEING THAT BIDS THAT WERE TIMELY RECEIVED IN THE HEADQUARTERS MAIL ROOM WERE PROMPTLY FORWARDED TO THE SALES CONTRACTING OFFICER SO THAT THEY MIGHT PROPERLY BE CONSIDERED, BUT IN THE ABSENCE OF ANY OTHER PROVISIONS OF THE INVITATION WHICH EXPRESSLY SAVED THE RIGHTS OF BIDDERS WHOSE BIDS WERE RECEIVED BY THE SALES CONTRACTING OFFICER AFTER THE TIME SET FOR THE START OF THE SALE, AND REGARDLESS OF THE REASON FOR SUCH LATE RECEIPT BY THAT OFFICER, THE TERMS OF ARTICLE "N" OF THE INVITATION MUST BE CONSTRUED AS PRECLUDING CONSIDERATION OF BIDS NOT ACTUALLY RECEIVED BY THE SALES CONTRACTING OFFICER AT THE TIME SET FOR THE START OF THE SALE. MOREOVER, IN VIEW OF THE EXPRESS LANGUAGE OF ARTICLE "N," THE RECEIPT OF YOUR BID AT 10 P.M. ON JUNE 13, 1963, BY THE MAIL CLERK AT TINKER AIR FORCE BASE HEADQUARTERS MAY NOT BE ACCEPTED AS CONSTITUTING TIMELY DELIVERY TO THE SALES CONTRACTING OFFICER ON THE BASIS THAT SUCH MAIL CLERK WAS THE AGENT OF THE SALES CONTRACTING OFFICER. IN ADDITION, THE FACT THAT YOU COMPLIED WITH ARTICLE 15 OF THE GENERAL INFORMATION AND INSTRUCTIONS TO BIDDERS THAT ACCOMPANIED THE INVITATION AS TO THE SUGGESTED TIME ALLOWANCE FOR THE TRANSMITTAL OF YOUR BID MAY NOT AFFECT THE OTHERWISE PROPER LEGAL DISPOSITION TO BE MADE OF LATE BIDS SINCE SUCH ARTICLE 15 IS INTENDED TO BE MERELY INFORMATIVE AND HAS NO LEGAL EFFECT. IN ANY EVENT, SINCE THIS WAS A "SPOT BID SALE" AND AWARD OF EACH ITEM OFFERED WAS MADE AS THE SALE PROGRESSED AN AWARD CANNOT NOW BE MADE TO YOU FOR THE SAME ITEMS.

ACCORDINGLY, NOTWITHSTANDING THE FACT THAT THE STRICT LEGAL INTERPRETATION OF ARTICLE "N" OF THE SPECIAL CONDITIONS OF THE INVITATION RESULTS IN A SOMEWHAT HARSH CONCLUSION TO YOU, UNDER THE FACTS REPORTED IN THIS CASE, WE CAN FIND NO LEGAL OBJECTION TO THE AWARDS MADE BY THE DEFENSE SUPPLY AGENCY UNDER INVITATION NO. 34-S-63 76.