B-152999, MAR. 11, 1964

B-152999: Mar 11, 1964

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TWO BIDS WERE RECEIVED AND OPENED AS SCHEDULED. WERE RECEIVED ON NOVEMBER 26. TELEPHONE CONVERSATIONS ON THAT DATE REVEALED THAT EACH BID WAS HIGHER THAN THE LOW BID OF LEE ROOFING COMPANY. SUBMITTED AN ENVELOPE TO THE CONTRACTING OFFICER STATING THAT IT WAS A HAND-CARRIED BID AND REQUESTED THAT IT BE OPENED AND CONSIDERED FOR AWARD UNDER THE INVITATION. LOGICAL CONSIDERATION OF THE CIRCUMSTANCES SHOULD HAVE CALLED FOR A POSTPONEMENT OF THE OPENING. WE CHECKED TO SEE WHAT ACTION MIGHT HAVE BEEN TAKEN IN CONNECTION WITH THIS BID. WE WERE ADVISED THAT THE PROCUREMENT OFFICE. - AND OTHER OFFICES- - WERE CLOSED FOR THE DAY. WE WERE SWITCHED TO SOMEONE IN SECURITY WHO SAID ALL OFFICES WOULD BE CLOSED AND THAT BUSINESS LIKELY WOULD POSTPONED FOR 24 HOURS.

B-152999, MAR. 11, 1964

TO THE SECRETARY OF THE AIR FORCE:

BY LETTER DATED FEBRUARY 13, 1964, THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF (SYSTEMS AND LOGISTICS), FURNISHED A REPORT WITH RESPECT TO THE PROTEST OF THE BELL ROOF COMPANY AGAINST THE OPENING OF BIDS AND ANY AWARD UNDER INVITATION FOR BIDS NO. 04-609-64-8, AND REQUESTED OUR ADVICE AS TO THE ACTION TO BE TAKEN UNDER THE INVITATION.

THE INVITATION, AS AMENDED, REQUESTED BIDS FOR REROOFING WORK AT GEORGE AIR FORCE BASE, CALIFORNIA, TO BE OPENED 2 P.M., NOVEMBER 25, 1963. TWO BIDS WERE RECEIVED AND OPENED AS SCHEDULED. THREE MAILED BIDS, NONE OF WHICH HAD BEEN CERTIFIED OR REGISTERED, WERE RECEIVED ON NOVEMBER 26, 1963. TELEPHONE CONVERSATIONS ON THAT DATE REVEALED THAT EACH BID WAS HIGHER THAN THE LOW BID OF LEE ROOFING COMPANY. ON NOVEMBER 26, 1963, MR. BAINS, PRESIDENT OF BELL, SUBMITTED AN ENVELOPE TO THE CONTRACTING OFFICER STATING THAT IT WAS A HAND-CARRIED BID AND REQUESTED THAT IT BE OPENED AND CONSIDERED FOR AWARD UNDER THE INVITATION. THE CONTRACTING OFFICER REFUSED TO HONOR MR. RAINS' REQUEST ON THE BASIS THAT IT WOULD VIOLATE ASPR 2-303.5 WHICH PROVIDES THAT A LATE HAND-CARRIED BID SHALL NOT BE CONSIDERED FOR AWARD. MR. RAINS PROTESTED SUCH ACTION ON THE FOLLOWING GROUNDS:

"THE TRAGIC KENNEDY INCIDENT, WITH ITS RESULTING SLOWDOWN OF BUSINESS OPERATIONS, SEEMED TO PRECLUDE ANY NORMAL HANDLING OF MATTERS SUCH AS THIS BID.

"PERSONAL CONVICTIONS, GOOD TASTE, AND LOGICAL CONSIDERATION OF THE CIRCUMSTANCES SHOULD HAVE CALLED FOR A POSTPONEMENT OF THE OPENING, SUCH NOTICE GIVEN TO BIDDERS BY MEANS OF TELEGRAM OR PHONE, AS HAS BEEN DONE FOR EVEN LESS REASON IN THE PAST.

"PLANNING TO TAKE PART IN LOCAL MEMORIAL SERVICES OUT OF RESPECT FOR THE LATE PRESIDENT, WE CHECKED TO SEE WHAT ACTION MIGHT HAVE BEEN TAKEN IN CONNECTION WITH THIS BID. UPON PHONING GEORGE AIR FORCE BASE, WE WERE ADVISED THAT THE PROCUREMENT OFFICE--- AND OTHER OFFICES- - WERE CLOSED FOR THE DAY. EXPLAINING OUR PROBLEM, WE WERE SWITCHED TO SOMEONE IN SECURITY WHO SAID ALL OFFICES WOULD BE CLOSED AND THAT BUSINESS LIKELY WOULD POSTPONED FOR 24 HOURS.

"WE, THEREFORE, MADE NO EFFORT TO DELIVERY THE SEALED BID. POST OFFICES WERE CLOSED, AND THERE WAS NO WAY TO HAVE POSTED A BID TO BE PROPERLY MARKED, MUCH LESS TO BE DELIVERED BY THE APPOINTED TIME.

"IN HARMONY WITH PRESIDENT JOHNSON'S DECLARATION OF A "DAY OF MOURNING," IN OUR OPINION EQUAL TO A NATIONAL LEGAL HOLIDAY, WITH GOVERNMENT AND OTHER OFFICES REQUESTED TO CLOSE, WE COULD NOT FEEL THAT A BID OPENING WAS IN ORDER, AND WE CONSTRUED SAID DECLARATION AS AN AUTOMATIC EXTENSION OF SAID BID OPENING DATE.

"OTHER PUBLIC BID OPENINGS THIS DATE WERE POSTPONED. FOR EXAMPLE, IFB 04 -605-64-22, AT MARCH AIR FORCE BASE WAS POSTPONED FOR 24 HOURS, WHICH PROCEDURE, WE WERE ADVISED, WAS "AUTOMATIC," WITHOUT NEED TO ADVISE BIDDERS.

"WE HAND CARRIED OUR BID WHICH YOU DID RECEIVE, SEALED, AT APPROXIMATELY 10:30 A.M. 26 NOVEMBER. WE WERE ADVISED, HOWEVER, THAT IT COULD NOT BE CONSIDERED.

"AFTER SUBMITTING OUR BID, AND AFTER THE SAME WAS IN YOUR POSSESSION, WE BECAME AWARE THAT OUR PROPOSAL WAS LOW BY APPROXIMATELY $1,000.00.'

THE RECORD BEFORE US OF THIS SOLICITATION DOES NOT DISCLOSE THAT THE CONTRACTING OFFICER OR ANY OTHER AUTHORIZED PERSON WAS CONTACTED BY MR. RAINS TO DETERMINE WHETHER THE BID OPENING DATE HAD BEEN EXTENDED BECAUSE A NATIONAL DAY OF MOURNING FOR THE LATE PRESIDENT KENNEDY HAD BEEN PROCLAIMED FOR NOVEMBER 25, 1963. EXECUTIVE ORDER NO. 11128 DATED NOVEMBER 23, 1963, PROMULGATING THAT DAY AS A DAY OF MOURNING READS AS FOLLOWS:

"BY VIRTUE OF THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, IT IS HEREBY ORDERED AS FOLLOWS:

"1. ALL EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER GOVERNMENTAL AGENCIES, INCLUDING THEIR FIELD SERVICES, SHALL BE CLOSED ON MONDAY, NOVEMBER 25, 1963, AS A MARK OF RESPECT FOR PRESIDENT JOHN FITZGERALD KENNEDY.

"2. THIS ORDER SHALL NOT APPLY TO THOSE OFFICES AND INSTALLATIONS, OR PARTS THEREOF, IN THE DEPARTMENT OF STATE, THE DEPARTMENT OF DEFENSE, OR OTHER DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND GOVERNMENTAL AGENCIES WHICH THE HEADS THEREOF DETERMINE SHOULD REMAIN OPEN FOR REASONS OF NATIONAL SECURITY OR DEFENSE OR OTHER PUBLIC REASONS.'

IT IS REPORTED THAT THE CONTRACTING OFFICER OPENED THE PROCUREMENT OFFICE AT 12:30 P.M., NOVEMBER 25, 1963, AND THAT THE TWO BIDS WERE OPENED PROMPTLY AT 2 P.M. ON THAT DAY. THE CONTRACTING OFFICER ADVISED THAT NO OFFICIAL ORDERS WERE ISSUED CLOSING THE AIR BASE ON NOVEMBER 25; THAT BASE EMPLOYEES RECEIVED THE ANNOUNCEMENT OF THE DAY OF MOURNING BY RADIO AND TELEVISION; AND THAT SUPERVISORY PERSONNEL MADE ARRANGEMENTS BY TELEPHONE WITH SOME EMPLOYEES FOR THE PURPOSE OF MAINTAINING SKELETON WORK FORCES DURING THAT DAY.

WE NOTE THAT THE EXECUTIVE ORDER OMITS ANY MENTION OF NOVEMBER 25, 1963, AS BEING A HOLIDAY. NEITHER DID IT LIMIT OR RESTRICT ACCESS TO PUBLIC OFFICES FOR THE TRANSACTION OF PUBLIC BUSINESS ON THAT DAY. THE ORDER DID NOT HAVE THE EFFECT OF POSTPONING, AUTOMATICALLY, THE DATE OF OPENING UNTIL THE NEXT BUSINESS DAY. CF. LAUBISCH V. ROBERDO, 260 P.2D 1004, WHEREIN THE COURT CONSIDERED THE LEGAL EFFECT OR EXECUTIVE ORDERS DECLARING A DAY OF MOURNING ON PRESIDENT ROOSEVELT'S DEATH AND A DAY OF THANKSGIVING ON "VJ DAY.'

WE FIND NOTHING IN THE INVITATION OR THE PROCUREMENT REGULATIONS WHICH WOULD HAVE THE EFFECT OF RENDERING THE SCHEDULED OPENING DATE ON NOVEMBER 25 IMPROPER OR AS REQUIRING THE POSTPONEMENT OF THE OPENING DATE TO THE NEXT BUSINESS DAY. SEE, IN THIS CONNECTION, 10 U.S.C. 2305 (C) WHICH PROVIDES, IN PART THAT,"BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT.' IT WAS THE RESPONSIBILITY OF MR. RAINS TO SEE THAT HIS HAND-CARRIED BID WAS DELIVERED TO THE DESIGNATED OFFICE PRIOR TO THE TIME FIXED FOR OPENING. FAILURE TO DO SO, THOUGH INFLUENCED BY THE OBSERVANCE OF THE DAY OF MOURNING, WAS FATAL TO THE CONSIDERATION OF HIS BID FOR AWARD. TO HOLD OTHERWISE, WOULD BE PREJUDICIAL TO THOSE TWO BIDDERS WHO MET THE INVITATION REQUIREMENTS RESPECTING THE SCHEDULED BID OPENING DATE.

FOR THESE REASONS, AND SINCE WE CONCLUDE THAT BELL'S BID WAS A LATE BID WITHIN THE PURVIEW OF ASPR 2-303.5 AND THEREFORE NOT FOR CONSIDERATION IN MAKING AN AWARD, AWARD UNDER THE INVITATION SHOULD BE MADE TO THE LOWEST RESPONSIVE BIDDER.