B-159489, OCTOBER 7, 1966, 46 COMP. GEN. 267

B-159489: Oct 7, 1966

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EVIDENCE SUBMITTED BY A LOW BIDDER STATING THAT A BID WAS AMONG THE DOCUMENTS SENT BY CERTIFIED MAIL IN AN ENVELOPE WHICH THE PROCURING ACTIVITY REPORTS CONTAINED ONLY A TRANSMITTAL LETTER AND BROCHURE BUT NO BID DOES NOT ESTABLISH THAT THE ENVELOPE CONTAINING THE BID WAS RECEIVED BY THE PROCURING ACTIVITY SO AS TO BE SUFFICIENT TO OVERCOME THE PRIMA FACIE SHOWING NONRECEIPT OF THE BID BY THE PROCURING OFFICE. 1966: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 21. REFERENCE IS ALSO MADE TO YOUR LETTER OF SEPTEMBER 19. AN ORIGINAL AND ONE COPY OF THE BID FORM WAS TO BE SUBMITTED. WHICH WERE TO BE OPENED AT 11:00 A.M. WERE SOLICITED ON A UNIT-PRICE BASIS FOR FURNISHING 172 UNITS. THE "PACKAGING AND PACKING" THEREOF WERE DESIGNATED AS ITEMS 1/A).

B-159489, OCTOBER 7, 1966, 46 COMP. GEN. 267

BIDS - BID FORMS - FAILURE TO ENCLOSE IN SEALED ENVELOPE. EVIDENCE SUBMITTED BY A LOW BIDDER STATING THAT A BID WAS AMONG THE DOCUMENTS SENT BY CERTIFIED MAIL IN AN ENVELOPE WHICH THE PROCURING ACTIVITY REPORTS CONTAINED ONLY A TRANSMITTAL LETTER AND BROCHURE BUT NO BID DOES NOT ESTABLISH THAT THE ENVELOPE CONTAINING THE BID WAS RECEIVED BY THE PROCURING ACTIVITY SO AS TO BE SUFFICIENT TO OVERCOME THE PRIMA FACIE SHOWING NONRECEIPT OF THE BID BY THE PROCURING OFFICE.

TO KLAGSBRUNN AND HANES, OCT. 7, 1966:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 21, 1966, AND SUPPORTING LETTER OF JULY 8, 1966, WRITTEN AS ATTORNEYS FOR WALTER MOTOR TRUCK COMPANY AND PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER INVITATION NO. 7107-GP, ISSUED BY THE MARINE CORPS SUPPLY ACTIVITY, PHILADELPHIA, PENNSYLVANIA. REFERENCE IS ALSO MADE TO YOUR LETTER OF SEPTEMBER 19, 1966, IN REGARD TO THE MATTER.

UNDER THE INVITATION, AN ORIGINAL AND ONE COPY OF THE BID FORM WAS TO BE SUBMITTED. BIDS, WHICH WERE TO BE OPENED AT 11:00 A.M; EDST, ON JUNE 14, 1966, WERE SOLICITED ON A UNIT-PRICE BASIS FOR FURNISHING 172 UNITS, 430 UNITS AND 430 UNITS, RESPECTIVELY, OF AN ITEM DESCRIBED AS "ANGLE DRIVE ASSEMBLY" (FEDERAL STOCK NO. 3020-593-7342) TO THE DESTINATIONS INDICATED, AND FOR PACKAGING AND PACKING THE SAME. THE QUANTITIES OF THE UNITS TO BE DELIVERED TO THE SEVERAL DESTINATIONS, AND THE "PACKAGING AND PACKING" THEREOF WERE DESIGNATED AS ITEMS 1/A), 1/B), 1/C) AND 1/D) IN THE INVITATION.

PARAGRAPH 6/A) OF STANDARD FORM 33A, BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), DECEMBER 1964 EDITION, MADE A PART OF THE INVITATION, PROVIDED:

BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: * * * IT IS DETERMINED BY THE GOVERNMENT THAT THE LATE RECEIPT WAS DUE SOLELY TO MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION: PROVIDED, THAT TIMELY RECEIPT AT SUCH INSTALLATION IS ESTABLISHED UPON EXAMINATION OF AN APPROPRIATE DATE OR TIME STAMP (IF ANY) OF SUCH INSTALLATION, OR OF OTHER DOCUMENTARY EVIDENCE OF RECEIPT (IF READILY AVAILABLE) WITHIN THE CONTROL OF SUCH INSTALLATION OR OF THE POST OFFICE SERVING IT.

IT IS STATED IN THE REPORT OF JULY 29, 1966, SUBMITTED BY THE COMMANDING GENERAL OF THE PROCURING ACTIVITY WITH RESPECT TO YOUR PROTEST (WHICH YOU WERE AFFORDED AN OPPORTUNITY TO EXAMINE), THAT WHEN BIDS WERE OPENED, AS SCHEDULED, THE "BID OPENING OFFICER" AND THE "RECORDER" WERE THE ONLY PERSONS IN ATTENDANCE, AND THAT THE ONLY THREE BIDS SUBMITTED IN RESPONSE TO THE INVITATION WERE THOSE OF ARJAY MACHINE CO; INC; IN THE UNIT-PRICE AMOUNTS OF $297.50, $297.10, $293.20 AND $13.25, FOR ITEMS 1/A), 1/B), 1/C) AND 1/D), RESPECTIVELY; ACTION MANUFACTURING CO; IN THE UNIT-PRICE AMOUNTS OF $328, $328, $324 AND $4, FOR ITEMS 1/A), 1/B), 1/C) AND 1/D), RESPECTIVELY; AND CONTROL MECHANISMS, INC; IN THE UNIT-PRICE AMOUNTS OF $553.70, $553.70, $549.65 AND $1.75, RESPECTIVELY. IT IS FURTHER STATED THEREIN THAT UPON RECEIVING A TELEPHONIC INQUIRY FROM MR. WILLIAM J. WENZEL, COMPTROLLER OF WALTER MOTOR TRUCK COMPANY, ON JUNE 20, 1966, AS TO WHY THE BID FROM THAT COMPANY (WHICH WAS STATED TO HAVE BEEN LOWER THAN ANY OF THE OTHERS LISTED ABOVE) HAD NOT BEEN ENTERED ON THE ABSTRACT OF BIDS MADE AVAILABLE TO THE PUBLIC IN CONNECTION WITH THE PROCUREMENT, THE FILE RELATING THERETO WAS EXAMINED BUT WAS FOUND TO CONTAIN ONLY THE THREE BIDS MENTIONED ABOVE, TOGETHER WITH A LETTER DATED JUNE 10, 1966, FROM WALTER MOTOR TRUCK COMPANY TO THE PROCURING ACTIVITY, WHICH WAS ATTACHED TO A BROCHURE DESCRIBING THE TRUCK PRODUCTS AND RELATED ASSEMBLIES MANUFACTURED BY THE COMPANY. UNDER THE CAPTION "RE: IFB NO. 710-GP--- OPENING 14 JUNE 1966", THE LETTER, WHICH WAS SIGNED ON BEHALF OF WALTER MOTOR BY WILLIAM J. WENZEL, AS COMPTROLLER, ADVISED:

WE ARE ENCLOSING HEREWITH ORIGINAL AND ONE COPY OF OUR BID PURSUANT TO THE ABOVE REFERENCED INVITATION FOR BIDS.

WE ARE ALSO ENCLOSING A BROCHURE WHICH WILL PROVIDE BACKGROUND INFORMATION ON OUR ORGANIZATION, PERSONNEL AND FACILITIES.

IN ACCORDANCE WITH OUR TELEPHONE CONVERSATION TODAY WITH MR. E. JOHNSON OF MARINE CORPS SUPPLY ACTIVITY, WE UNDERSTAND THAT PRICES ARE REQUESTED ON A TOTAL OF 602 PIECES. WE HAVE BID, THEREFORE, PRICES ON 172 PCS; F.O.B. ALBANY, GEORGIA; 430 PCS; F.O.B. BARSTOW, CALIFORNIA; THE SAME 430 PCS; F.O.B. ORIGIN (VOORHEESVILLE, NEW YORK); AND THEN THE CHARGE FOR PACKAGING AND PACKING THE PIECES QUOTED ABOVE.

ACCORDING TO THE COMMANDING GENERAL'S REPORT, WALTER MOTOR'S MR. WENZEL WAS SUBSEQUENTLY CONTACTED BY THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA AND ADVISED THAT THE ACTIVITY HAD NO RECORD OF RECEIVING A BID FROM WALTER MOTOR UNDER THE INVITATION, ALTHOUGH THE COMPANY'S LETTER AND BROCHURE HAD BEEN RECEIVED.

WITH YOUR LETTER OF JULY 8, YOU ENCLOSED A COPY OF A BID DATED JANUARY 10, 1966, WHICH WALTER MOTOR CONTENDS WAS SUBMITTED TO THE PROCURING ACTIVITY IN THE SAME ENVELOPE CONTAINING THE LETTER OF TRANSMITTAL AND BROCHURE, REFERRED TO ABOVE. THE COPY OF THE BID INDICATES THAT THE BID WAS PREPARED ON THE INVITATION FORM PROVIDED TO BIDDERS FOR SUBMISSION OF BIDS UNDER INVITATION NO. 7107-GP, THAT IT WAS SIGNED ON BEHALF OF WALTER MOTOR TRUCK COMPANY BY GEORGE R. COOPER, JR; AS VICE PRESIDENT, AND THAT UNIT PRICES IN THE AMOUNTS OF $285.80, $288.00, $284.25 AND $1.50 WERE QUOTED IN THE BID FOR ITEMS 1/A), 1/B), 1/C) AND 1/D), RESPECTIVELY. ALSO ENCLOSED WAS A PHOTOSTAT OF AN OFFICIAL RECEIPT MAILED TO WALTER MOTOR TRUCK COMPANY BY THE SCHUYLKILL STATION POST OFFICE IN PHILADELPHIA, PENNSYLVANIA, SHOWING DELIVERY OF AN ITEM SENT BY WALTER MOTOR TO THE PROCURING ACTIVITY INVOLVED VIA CERTIFIED MAIL, AND WHICH BEARS AN OFFICIAL DATE STAMP SHOWING THE RECEIPT TO HAVE BEEN RETURNED TO THE SENDER ON JUNE 13, 1966, FROM WHICH IT APPEARS THAT THE ENVELOPE CONTAINING WALTER MOTOR'S LETTER OF TRANSMITTAL AND BROCHURE WAS RECEIVED BY THE PROCURING ACTIVITY PRIOR TO THE TIME FIXED FOR THE OPENING OF BIDS UNDER INVITATION NO. 7107-GP. THIS IS NOT DISPUTED BY THE PROCURING ACTIVITY, THE ISSUE BEING WHETHER THE ENVELOPE ALSO CONTAINED THE ORIGINAL AND A COPY OF THE BID WHICH WALTER MOTOR CONTENDS IT SUBMITTED.

IN SUPPORT OF THE CONTENTION THAT THE ENVELOPE DID CONTAIN THE BID REFERRED TO ABOVE, YOU SUBMITTED AFFIDAVITS EXECUTED BY MR. WILLIAM J. WENZEL, MISS MAE E. ROGERS AND MISS ELSIE D. WAGNER UNDER DATE OF JULY 1, 1966.

IN HIS AFFIDAVIT, MR. WENZEL STATES THAT ON JUNE 10, 1966, HE PREPARED WALTER MOTOR'S BID AND IN THE COURSE THEREOF TALKED ON THE TELEPHONE WITH MR. E. JOHNSON OF THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA (WHOSE NAME WAS GIVEN IN THE INVITATION AS THE INDIVIDUAL TO CONTACT FOR INFORMATION IN REGARD TO THE PROCUREMENT), WHOM HE ADVISED THAT HE WAS PREPARING WALTER MOTOR'S BID AND FROM WHOM HE ELICITED CERTAIN INFORMATION IN REGARD TO THE PROCUREMENT. MR. WENZEL STATES THAT AFTER PREPARING AND REVIEWING THE BID, THE ORIGINAL AND ONE COPY OF WHICH WERE SIGNED ON BEHALF OF THE COMPANY BY GEORGE R. COOPER, JR; AS VICE PRESIDENT, HE TOOK THE BID FORMS, THE LETTER OF TRANSMITTAL AND THE BROCHURE REFERRED TO ABOVE TO THE DESK OF MISS MAE E. ROGERS, HIS SECRETARY, WHERE HE PERSONALLY INSERTED THE ORIGINAL AND DUPLICATE COPY OF THE BID, THE LETTER OF TRANSMITTAL AND THE BROCHURE IN THE ENVELOPE FURNISHED BY THE PROCURING ACTIVITY FOR SUBMITTING BIDS, AND THAT MISS ROGERS, IN HIS PRESENCE, IMMEDIATELY SEALED THE ENVELOPE, AFFIXED THERETO THE RETURN RECEIPT FORM AND THE CERTIFIED MAIL RECEIPT FORM AND TOOK THE ENEVELOPE, WHICH APPEARED TO BE SECURELY SEALED, TO THE COMPANY'S MAIL ROOM. THE AFFIANT FURTHER STATES THAT UNDER WALTER MOTOR'S NORMAL PROCEDURE, IT WAS MISS ROGER'S DUTY TO AFFIX THE PROPER POSTAGE TO THE ENVELOPE AND LEAVE IT IN THE MAIL ROOM FOR TRANSPORTATION TO THE POST OFFICE, AND AT THE END OF EACH DAY MISS ELSIE D. WAGNER, AN EMPLOYEE OF THE COMPANY, COLLECTED THE MAIL FROM THE MAIL ROOM AND TRANSPORTED IT TO THE VOORHEESVILLE POST OFFICE FOR DEPOSIT IN THE MAIL.

IN HER AFFIDAVIT, MISS ROGERS STATES THAT, AS A SECRETARY EMPLOYED BY WALTER MOTOR TRUCK COMPANY, SHE ASSISTED MR. WENZEL IN THE PREPARATION OF THE COMPANY'S BID IN RESPONSE TO THE INVITATION INVOLVED ON JUNE 10, 1966; THAT AFTER PREPARATION OF THE BID HAD BEEN COMPLETED, MR. WENZEL BROUGHT AN ORIGINAL AND ONE COPY OF THE SIGNED BID, A LETTER OF TRANSMITTAL AND A BROCHURE DESCRIBING THE COMPANY TO HER DESK; THAT IN HER PRESENCE MR. WENZEL INSERTED THE DOCUMENTS REFERRED TO IN THE ENVELOPE ADDRESSED TO THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA; AND SHE THEN SECURELY SEALED THE ENVELOPE, AFFIXED A RETURN RECEIPT FORM AND A CERTIFIED MAIL RECEIPT FORM THERETO AND TOOK THE ENVELOPE TO THE COMPANY'S MAIL ROOM. THE AFFIANT FURTHER STATES THAT IT WAS HER USUAL PRACTICE WITH RESPECT TO CERTIFIED MAIL PERSONALLY TO AFFIX THE PROPER POSTAGE TO THE INVITATION; THAT, TO THE BEST OF HER KNOWLEDGE, SHE DID SO IN THE PRESENT INSTANCE; AND THAT SHE LEFT THE ENVELOPE, WHICH REMAINED SECURELY SEALED, IN THE MAIL ROOM FOR SUBSEQUENT TRANSPORTATION TO THE POST OFFICE.

IN HER AFFIDAVIT, MISS WAGNER STATES THAT ONE OF HER REGULAR DUTIES AS AN EMPLOYEE OF WALTER MOTOR TRUCK COMPANY WAS TO PICK UP OUTGOING MAIL AT THE END OF EACH DAY AND DELIVER IT TO THE VOORHEESVILLE POST OFFICE; THAT IN ACCORDANCE WITH REGULAR PROCEDURES, SHE TOOK THE MAIL FROM THE COMPANY'S MAIL ROOM ON JUNE 10, 1966, AND DID NOT NOTE THAT ANY OF THE PIECES OF MAIL PICKED UP WAS UNSEALED; THAT NONE OF THEM BECAME UNSEALED WHILE SHE WAS TRANSPORTING THEM TO THE POST OFFICE, OR AT ANY TIME BEFORE SHE DEPOSITED THEM IN THE MAIL; AND THAT, IN ACCORDANCE WITH HER USUAL PRACTICE, SHE PERSONALLY HANDED EACH ITEM OF CERTIFIED MAIL TO THE POST OFFICE ATTENDANT AND RECEIVED AN APPROPRIATE POSTMARK CERTIFIED MAIL RECEIPT FORM.

IN YOUR LETTER OF JULY 8, YOU CONTEND THAT THE ABOVE EVIDENCE SHOULD BE ACCEPTED AS ESTABLISHING THAT WALTER MOTOR'S BID WAS ENCLOSED IN THE ENVELOPE CONTAINING THE LETTER OF TRANSMITTAL AND BROCHURE WHEN THE ENVELOPE REACHED ITS DESTINATION; THAT THE BID "WAS APPARENTLY EITHER NOT REMOVED FROM THE BID ENVELOPE OR WAS MISLAID AFTER ITS REMOVAL;" AND THAT WALTER MOTOR, HAVING PRESENTED AN AUTHENTICATED COPY OF ITS BID SETTING FORTH PRICES LOWER THAN ANY OF THE BIDS LISTED ABOVE, IS ENTITLED TO THE AWARD OF THE CONTRACT.

IN ORDER THAT WE MIGHT HAVE THE BENEFIT OF THE BEST EVIDENCE OBTAINABLE BEFORE US IN RESOLVING THE QUESTION AT ISSUE, WE REQUESTED THE MARINE CORPS TO OBTAIN SWORN STATEMENTS FROM THE EMPLOYEES OF THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA DIRECTLY CONCERNED WITH THE OPENING OF BIDS UNDER THE INVITATION REGARDING THEIR KNOWLEDGE AND RECOLLECTION OF WHAT TOOK PLACE. PURSUANT TO THIS REQUEST, THE DIRECTOR OF THE PROCUREMENT DIVISION OF THE MARINE CORPS FURNISHED US AFFIDAVITS EXECUTED BY CAMILLE G. MOSBY AND SARA R. COOK UNDER DATES OF SEPTEMBER 13 AND 14, 1966, RESPECTIVELY, COPIES OF WHICH WERE FURNISHED TO YOUR MR. BING IN CONFERENCE HERE ON SEPTEMBER 19, 1966.

IN HER AFFIDAVIT, MISS MOSBY STATES THAT, IN LINE WITH HER REGULAR DUTIES AS AN EMPLOYEE OF THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA, SHE CONDUCTED (AS BID OPENING OFFICER) THE OPENING OF BIDS UNDER INVITATION NO. 7107-GP AT THE SCHEDULED TIME IN THE PRESENCE OF MISS SARA R. COOK, THE "RECORDER;, REGARDING WHAT TOOK PLACE AT THE BID OPENING, SHE STATES:

TO THE BEST OF MY RECOLLECTION A TOTAL OF SIX (6) BID ENVELOPES WERE RECEIVED PRIOR TO THE TIME OF OPENING. FOLLOWING CUSTOMARY PRACTICE, I OPENED AN ENVELOPE, EXTRACTED ITS CONTENTS, AND THEN EITHER READ THE INFORMATION ALOUD AFTER PASSING THE DUPLICATE TO THE RECORDER, OR STATED "NO BID" WHEN THERE WAS "NO BID" FOUND AMONG THE PAPERS REMOVED FROM THE ENVELOPE. TO THE BEST OF MY KNOWLEDGE, I EXTRACTED THE TOTAL CONTENDS OF ALL SIX/6) ENVELOPES AND FOUND (3) THREE BIDS, NONE OF WHICH WAS FROM THE WALTER MOTOR TRUCK COMPANY. I RECALL RECEIVING ONLY A BROCHURE AND COVER LETTER FROM THAT COMPANY.

AFTER THE OPENING OF BIDS HAD BEEN COMPLETED I DISPOSED OF THE EMPTY BID ENVELOPES AND TURNED THE ENTIRE BID PACKAGE OVER TO THE CONTRACTING OFFICER.

I AM SURE THAT NO BID WAS LEFT IN ANY ENVELOPE SO DISPOSED.

IN HER AFFIDAVIT, MISS COOK STATES THAT, IN LINE WITH HER REGULAR DUTIES AS AN EMPLOYEE OF THE ACTIVITY, SHE ACTED AS RECORDER AT THE OPENING OF BIDS UNDER INVITATION NO. 7107-GP, MISS MOSBY AND HERSELF BEING THE ONLY PERSONS PRESENT. REGARDING WHAT TOOK PLACE AT THE BID OPENING, SHE STATES:

FOLLOWING THE ESTABLISHED PROCEDURE I RECORDED EACH BID AS IT WAS READ ALOUD.

NO BID WAS READ OR RECORDED FOR WALTER MOTOR TRUCK COMPANY.

IN YOUR LETTER OF SEPTEMBER 19, YOU CONTEND THAT UNLIKE THE AFFIDAVITS SUBMITTED BY WALTER MOTOR, WHICH INDICATE A CLEAR AND SPECIFIC RECOLLECTION ON THE PART OF THE AFFIANTS OF PREPARING AND SENDING OUT A COMPLETE BID PACKAGE, THE AFFIDAVITS OF THE MARINE CORPS PERSONNEL INVOLVED ARE BASED UPON THEIR "CUSTOMARY PRACTICE", RATHER THAN UPON THEIR INDEPENDENT AND SPECIFIC RECOLLECTION; THAT THEIR CONCLUSIONS ARE PREDICATED UPON, AND THEREFORE ARE SUITABLY "CAVEATED" AS BEING,"-THE BEST OF MY RECOLLECTION;-" AND THAT, ALTHOUGH THE BID OPENING OFFICER DID CONCLUDE HER AFFIDAVIT BY STATING "-I AM SURE THAT NO BID WAS LEFT IN ANY ENVELOPE SO DISPOSED,-" IT MUST BE REGARDED AS A CONCLUSION DRAWN FROM RECOLLECTIONS SUBJECT TO THE "CAVEAT", AND PREDICATED UPON "-CUSTOMARY PRACTICE,-" RATHER THAN UPON INDEPENDENT AND SPECIFIC RECOLLECTION OF THE DETAILS OF THE HANDLING OF THE PARTICULAR BID OPENING. AFTER DRAWING ATTENTION IN YOUR LETTER TO THE FACT THAT NO PERSONS WERE IN ATTENDANCE AT THE BID OPENING OTHER THAN THE BID OPENING OFFICER AND THE RECORDER, YOU STATE: * * * THUS THE FORMALITIES OF NORMAL CUSTOMARY PROCEDURES WERE NOT NECESSARY FOR THE BENEFIT OF BIDDER REPRESENTATIVES AND IT IS POSSIBLE DISTRACTIONS MAY HAVE INTERRUPTED THE OPENING SINCE NO BIDDER REPRESENTATIVES WERE WAITING.

4. INDEED, IT IS APPARENT FROM THE MARINE CORPS REPORT THAT NORMAL PROCEDURES WERE NOT FOLLOWED IN THIS PARTICULAR INSTANCE. AS ACKNOWLEDGED BY THE MARINE CORPS REPORT (PAR. 1E/2/), WALTER'S COVERING LETTER WAS NOT READ, AND "HAD THE LETTER BEEN READ IT WOULD HAVE TRIGGERED AN INQUIRY REGARDING THE BID REFERENCED THEREIN;, IF A SEARCH HAD BEEN MADE AT THAT TIME, THE BID UNDOUBTEDLY WOULD HAVE BEEN LOCATED.

5. IT IS CLEAR FROM THE REPORT THAT THE MARINE CORPS HAS DOUBTS ITSELF ABOUT THIS PARTICULAR OPENING SINCE IT SPECIFICALLY STATES IN ITS COVERING LETTER TO THE COMPTROLLER GENERAL DATED AUGUST 22, 1966 THAT "NO RECOMMENDATION FOR SETTLEMENT OF THE PROTEST IS BEING MADE;,

6. FROM THE MARINE CORPS REPORT IT IS CLEAR THAT AT LEAST SIX LARGE MANILA ENVELOPES WERE OPENED AND ON THE TABLE DURING THE BID OPENING. ADDITION, IT IS QUITE POSSIBLE THAT THE LARGE MANILA ENVELOPES FROM FOUR OTHER BID OPENINGS ON 14 JUNE 1966 MAY HAVE BEEN ON THE TABLE. WHEN THIS PILE OF ENVELOPES AND LOOSE PAPERS WERE PICKED UP TO BE DEPOSITED IN THE WASTE BASKET, A MISPLACED BID COULD EASILY HAVE BEEN DISCARDED WITHOUT BEING NOTICED, OR IN A MOMENT OF DISTRACTION, THE BID MIGHT HAVE BEEN MISPLACED IN ANOTHER PILE AND LATER DISCARDED OR MISFILED BY A CLERK WHO DID NOT KNOW OR APPRECIATE THE SIGNIFICANCE OF THE DOCUMENT.

SINCE THE MARINE CORPS IS NOT TAKING ANY POSITION ON THE PROTEST AND EXPRESSED NO CONCLUSION (OTHER THAN CONJECTURE . . .'IT IS DIFFICULT TO OCNCEDE") WITH RESPECT TO WHETHER THE BID WAS IN FACT RECEIVED, THERE IS NO ADMINISTRATIVE FINDING TO RELY UPON. THE CLEAR, SPECIFIC RECOLLECTION OF THE WALTER EMPLOYEES IN CONTRAST WITH AFFIDAVIT CONCLUSION BASED ONLY ON GENERAL RECOLLECTION OF THE MARINE CORPS BID OPENING OFFICER PREDICATED UPON "CUSTOMARY PRACTICE" INDICATES THAT IN ALL PROBABILITY WALTER'S INVITATION WAS RECEIVED BY THE MARINE CORPS. THE FACT THAT THE MARINE CORPS TAKES NO POSITION ON THE PROTEST IS A RECOGNITION BY THE CORPS ITSELF THAT THE INVITATION MIGHT HAVE BEEN RECEIVED. UNDER THESE SPECIAL CIRCUMSTANCES, IT IS APPROPRIATE FOR THE COMPTROLLER GENERAL TO RAISE NO OBJECTION TO THE MARINE CORPS MAKING AN AWARD ON THE BASIS OF WALTER'S BID IN VIEW OF THE $13,000 SAVING TO THE GOVERNMENT IN ACCEPTING WALTER'S BID. CERTAINLY IN VIEW OF THE FAILURE TO READ WALTER'S COVERING LETTER AND MAKE AN IMMEDIATE SEARCH FOR THE BID, IT WOULD NOT BE APPROPRIATE TO MAKE AN AWARD TO ANY OTHER BIDDER.

SINCE IT APPEARS FROM MISS MOSBY'S AFFIDAVIT THAT IT WAS THE CUSTOMARY PRACTICE OF THE BID OPENING OFFICER AT THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA, IN CONDUCTING BID OPENINGS, TO OPEN AN ENVELOPE, EXTRACT ITS CONTENTS, AND THEN "EITHER READ THE INFORMATION ALOUD" AFTER PASSING THE DUPLICATE TO THE RECORDER, OR ANNOUNCE "NO BID" WHEN NO BID WAS FOUND AMONG THE PAPERS REMOVED FROM THE ENVELOPE, THE RECORD FURNISHES NO BASIS FOR YOUR CONTENTION THAT NORMAL PROCEDURES WERE NOT FOLLOWED WITH RESPECT TO THE OPENING AND RECORDING OF BIDS IN THE PRESENT INSTANCE. UNDER THE EXISTING PROCEDURE, ONLY BIDS WERE REQUIRED TO BE READ AND RECORDED. SUCH A PROCEDURE FULFILLED THE REQUIREMENTS OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PROVIDES IN PARAGRAPH 2-402, OPENING OF BIDS, THAT THE OFFICIAL DESIGNATED AS THE BID OPENING OFFICER SHALL PERSONALLY AND PUBLICLY OPEN ALL BIDS RECEIVED PRIOR TO THE TIME FIXED FOR BID OPENING, AND WHEN PRACTICABLE READ THEM ALOUD TO THE PERSONS PRESENT, AND HAVE THE BIDS RECORDED, AND IN PARAGRAPH 2-403, RECORDING OF BIDS, THAT THE INVITATION NUMBER, BID OPENING DATE, GENERAL DESCRIPTION OF THE PROCUREMENT ITEM, NAMES OF BIDDERS, PRICES BID, AND ANY OTHER INFORMATION REQUIRED FOR BID EVALUATION, SHALL BE ENTERED IN AN ABSTRACT OR RECORD WHICH, EXCEPT IN THE CASE OF A CLASSIFIED PROCUREMENT, SHALL BE AVAILABLE FOR PUBLIC INSPECTION.

THE DOCUMENT "ABSTRACT OF BIDS", DD FORM 1501 (NOV. 1, 1964), LISTING THE BIDS RECEIVED UNDER THE INVITATION INVOLVED, WHICH SHOWS THAT IT WAS SIGNED BY CAMILLE G. MOSBY ON JUNE 14, 1966, AND BEARS HER CERTIFICATION THAT "I HAVE OPENED, READ AND HEREIN ALL BIDS RECEIVED IN RESPONSE TO THE INVITATION", AND THAT IT WAS ALSO SIGNED BY ROSALIE COOK, AS "RECORDER", CONSTITUTES AN OFFICIAL RECORD OF THE MARINE CORPS AS TO THE MATTERS STATED THEREIN. AS YOU NO DOUBT ARE AWARE, 28 U.S.C. 1733/A) PROVIDES THAT BOOKS OF ACCOUNT OR MINUTES OF PROCEEDINGS OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES SHALL BE ADMISSIBLE TO PROVE THE ACT, TRANSACTION OR OCCURRENCE AS A MEMORANDUM OF WHICH THE SAME WERE MADE OR KEPT. IN UNITED STATES V. VAN HOOK (1960), 284 F. 2D 489, THE SEVENTH CIRCUIT COURT OF APPEALS, IN DISCUSSING THIS STATUTE, STATED:

THERE ARE TWO MAIN REASONS GIVEN FOR THIS EXCEPTION TO THE HEARSAY RULE: (1) THE PRACTICAL NECESSITY FOR USE OF SUCH RECORDS, TO WHICH IS ATTACHED THE PRESUMPTION OF PROPER PERFORMANCE OF OFFICIAL DUTY, AND THE LIKELIHOOD THAT A PUBLIC OFFICIAL WOULD HAVE NO MEMORY OF HIS ACTIONS IN MAKING NUMEROUS SIMILAR ENTRIES; AND (2) THE INCONVENIENCE OF CALLING TO THE WITNESS STAND ALL OVER THE COUNTRY, GOVERNMENT OFFICERS WHO IN THE COURSE OF THEIR DUTIES HAVE MADE SUCH NUMEROUS SIMILAR WRITTEN STATEMENTS CONCERNING EVENTS COMING WITHIN THEIR JURISDICTION. WONG WING FOO V. MCGRATH, 9 CIR; 1952, 196 F. 2D 120, 123; OLENDER V. UNITED STATES, 9 CIR; 1954, 210 F. 2D 795, 801, 42 A.L.R. 2D 736; HOWARD V. U.S; D.C. CIR; 1960, 278 F. 2D 872, 873-874.

IN NOTE 2 APPEARING AT PAGE 123 OF THE NINTH CIRCUIT COURT OF APPEALS OPINION IN WONG WING FOO V. MCGRATH, SUPRA, 5 WIGMORE ON EVIDENCE (3D ED.), SECS. 1631 AND 1632, IS CITED AS SETTING FORTH THE REASONS FOR SUCH STATUTES AS 28 U.S.C. 1733. APPROPOS OF THE FIRST REASON GIVEN IN THE ABOVE QUOTE FOR THE EXCEPTION TO THE HEARSAY RULE PROVIDED BY THIS STATUTE, WIGMORE (SEC. 1632) STATES:

* * * WHEN IT IS A PART OF THE DUTY OF A PUBLIC OFFICER TO MAKE A STATEMENT AS TO A FACT COMING WITHIN HIS OFFICIAL COGNIZANCE, THE GREAT PROBABILITY IS THAT HE DOES HIS DUTY AND MAKES A CORRECT STATEMENT. THE CONSIDERATION THAT REGULARITY OF HABIT, A CHIEF BASIS FOR THE EXCEPTION FOR REGULAR ENTRIES (ANTE, 1422, 1522), WILL TEND TO THIS END IS NOT HERE AN ESSENTIAL ONE; FOR CASUAL STATEMENTS---SUCH AS CERTIFICATES---MAY BE ADMISSIBLE, AS WELL AS A REGULAR SERIES OF ENTRIES IN A REGISTRY. THE FUNDAMENTAL CIRCUMSTANCE IS THAT AN OFFICIAL DUTY EXISTS TO MAKE AN ACCURATE STATEMENT, AND THAT THIS SPECIAL AND WEIGHTY DUTY WILL USUALLY SUFFICE AS A MOTIVE TO INCITE THE OFFICER TO ITS FULFILMENT. THE DUTY MAY OR MAY NOT BE ONE FOR WHOSE VIOLATION A PENALTY IS EXPRESSLY PRESCRIBED. THE OFFICER MAY OR MAY NOT BE ONE FROM WHOM IN ADVANCE AN EXPRESS OATH OF OFFICE IS REQUIRED. NO STRESS SEEMS TO BE LAID JUDICALLY ON EITHER OF THESE CONSIDERATIONS; NOR NEED THEY BE EMPHASIZED. IT IS THE INFLUENCE OF THE OFFICIAL DUTY, BROADLY CONSIDERED, WHICH IS TAKEN AS THE SUFFICIENT ELEMENT OF TRUSTWORTHINESS, JUSTIFYING THE ACCEPTANCE OF THE HEARSAY STATEMENT.

ALSO, WIGMORE, IN DISCUSSING GENERALLY THE APPLICATION OF THE PRINCIPLE (RECOGNIZED AT COMMON LAW AS WELL AS BY STATUTES SIMILAR TO 28 U.S.C. 1733) THAT RECORDS MADE BY PUBLIC OFFICIALS IN THE LINE OF DUTY ARE ADMISSIBLE IN EVIDENCE AS TENDING TO PROVE THE TRUTH OF THE STATEMENTS CONTAINED THEREIN, STATES IN SECTION 1633:

(6) SINCE THE ASSUMPTION OF THE FULFILMENT OF DUTY IS THE FOUNDATION OF THE EXCEPTION, IT WOULD SEEM TO FOLLOW THAT IF A DUTY EXISTS TO RECORD CERTAIN MATTERS WHEN THEY OCCUR, AND IF NO RECORD OF SUCH MATTERS IS FOUND, THEN THE ABSENCE OF ANY ENTRY ABOUT THEM IS EVIDENCE THAT THEY DID NOT OCCUR; OR, TO PUT IT IN ANOTHER WAY, THE RECORD, TAKEN AS A WHOLE, IS EVIDENCE THAT THE MATTERS RECORDED, AND THOSE ONLY, OCCURRED. * * *

THE VIEW EXPRESSED BY WIGMORE IN THE ABOVE QUOTE WAS ACCEPTED BY THE SUPREME COURT IN CHESAPEAKE AND DELAWARE CANAL CO. V. UNITED STATES (1919), 250 U.S. 123. THAT CASE INVOLVED AN ACTION FOR DIVIDENDS DUE FROM THE CANAL COMPANY FOR THE YEARS 1873, 1875 AND 1876. IN HOLDING THAT ACCOUNT BOOKS OF THE TREASURY DEPARTMENT FOR THE YEARS 1948 TO 1914 WERE ADMISSABLE TO SHOW, BY ABSENCE OF APPROPRIATE ENTRIES, THAT NO PAYMENT WAS RECEIVED OR MADE FOR THE YEARS IN QUESTION, THE COURT STATED:

* * * THE CONSIDERATIONS WHICH WE HAVE FOUND RENDERED THE BOOKS ADMISSIBLE IN EVIDENCE AS TENDING TO PROVE THE TRUTH OF THE STATEMENTS OF ENTRIES CONTAINED IN THEM ALSO MAKE THEM ADMISSIBLE AS EVIDENCE TENDING TO SHOW THAT BECAUSE THE RECEIPT OF THE DIVIDENDS WAS NOT ENTERED IN THEM THEY WERE NOT RECEIVED AND THEREFORE WERE NOT PAID. THE EVIDENCE MAY NOT BE AS PERSUASIVE IN THE LATTER CASE AS IN THE FORMER, BUT THAT IT WAS PROPER EVIDENCE TO BE SUBMITTED TO THE JURY FOR THE DETERMINATION OF ITS VALUE WE CANNOT DOUBT. SUCH BOOKS SO KEPT PRESUMPTIVELY CONTAINED A RECORD OF ALL PAYMENTS MADE AND THE ABSENCE OF ANY ENTRY OF PAYMENT, WHERE IT NATURALLY WOULD HAVE BEEN FOUND IF IT HAD BEEN MADE, WAS EVIDENCE OF NONPAYMENT PROPER FOR THE CONSIDERATION OF THE JURY.

THE PROVISIONS OF 28 U.S.C. 1733 DO NOT, OF COURSE, MAKE A GOVERNMENT DOCUMENT RECEIVED IN EVIDENCE CONCLUSIVE, IRREFUTABLE OR IMMUTABLE. THE OPPOSING PARTY IS PRIVILEGED TO COME FORWARD WITH EVIDENCE DEEMED TO ESTABLISH THE UNTRUTH OF THE STATEMENTS CONTAINED THEREIN. SOUTHARD V. UNITED STATES (9TH CIR. C.A; 1955), 128 F. 2D 943, 947.

WHILE THE STATEMENTS MADE BY THE INDIVIDUALS CHARGED WITH THE RESPONSIBILITY OF SUBMITTING WALTER MOTOR'S BID UNDER THE INVITATION INVOLVED ARE INDEED IMPRESSIVE AS INDICATING THAT THE BID WAS AMONG THE DOCUMENTS CONTAINED IN THE CRITICAL ENVELOPE INITIALLY, THEY ARE, OF COURSE, SELF-SERVING INSOFAR AS WALTER MOTOR'S INTERESTS ARE CONCERNED, AND THEY DO NOT ESTABLISH THAT THE ENVELOPE CONTAINED THE BID WHEN IT WAS RECEIVED BY THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA, IN ANY EVENT.

IN OUR OPINION, THE BID OPENING OFFICER'S STATEMENT THAT "I RECALL RECEIVING ONLY A BROCHURE AND COVER LETTER FROM THAT COMPANY (WALTER MOTOR)" REPRESENTS A POSITIVE ASSERTION OF A FACT REMEMBERED BY THE AFFIANT, NAMELY, THAT ONLY A BROCHURE AND COVER LETTER WERE RECEIVED FROM THE COMPANY. MOREOVER, AS INDICATED IN THE LETTER OF AUGUST 22, 1966, FROM THE COMMANDANT OF THE MARINE CORPS, WHICH TRANSMITTED THE REFERRED-TO REPORT OF THE COMMANDING GENERAL OF THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA, IT WOULD SEEM HIGHLY UNLIKELY THAT ANYONE OPENING BID ENVELOPES WOULD OVERLOOK TWO DOCUMENTS AS BULKY AS THE BID FORMS, EACH OF WHICH CONSISTED OF 21 PAGES.

FOR THE ABOVE REASONS, THE EVIDENCE WHICH WALTER MOTOR HAS PRESENTED IN AN EFFORT TO SHOW THAT ITS BID WAS RECEIVED BY THE MARINE CORPS SUPPLY ACTIVITY AT PHILADELPHIA PRIOR TO THE TIME FIXED FOR OPENING OF BIDS UNDER THE INVITATION IS NOT DEEMED SUFFICIENT TO OVERCOME THE PRIMA FACIE SHOWING THAT THE ACTIVITY HAS MADE AS TO THE NONRECEIPT THEREOF.

ACCORDINGLY, THERE BEING NO BASIS UPON WHICH ITS BID MAY BE CONSIDERED FOR PURPOSES OF AWARD UNDER THE TERMS OF THE INVITATION, WALTER MOTOR'S PROTEST MUST BE DENIED. WE ARE, HOWEVER, ADVISING THE COMMANDANT OF THE MARINE CORPS THAT, IN THE INTEREST OF GOOD PROCUREMENT PRACTICES, WE FEEL THAT THE BID OPENING OFFICER IN THE PRESENT INSTANCE SHOULD HAVE READ WALTER MOTOR'S LETTER OF JUNE 10, 1966, ADVISING THAT ITS BID WAS ENCLOSED IN THE CRITICAL ENVELOPE, AND MADE A RECORD OF THE FACT THAT A BID WAS NOT ENCLOSED THEREIN.