B-5044, AUGUST 1, 1939, 19 COMP. GEN. 139

B-5044: Aug 1, 1939

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IS AN ACCEPTANCE "WITHIN 2 DAYS FROM THE DATE OF THE OPENING" AS REQUIRED BY THE BIDDER'S OFFER. THE CONDITIONAL OFFER NOT REQUIRING THAT THE TIME SHOULD BE MEASURED IN HOURS FROM THE HOUR ON WHICH THE BIDS WERE OPENED. YOU WILL NOTE THAT THE BIDDER SPECIFIED AN ACCEPTANCE BY THE GOVERNMENT TWO DAYS FROM DATE OF THE OPENING. WHICH WAS AT 9:30 A.M. IN VIEW OF THE FACT THAT THIS MATERIAL WAS A SPECIAL LOT OFFERED SUBJECT TO PRIOR SALE. J14PI-24 WAS AWARDED. IT IS REQUESTED THAT YOU ADVISE WHETHER THE LAW TAKES INTO CONSIDERATION PARTS OF DAYS. ALL THE PAPERS IN CONNECTION WITH THE CASE ARE ATTACHED. THE REFERRED-TO REQUEST THAT THE CONTRACT RESULTING FROM THE BID AND ACCEPTANCE BE CANCELED IS CONTAINED IN A LETTER OF JULY 18.

B-5044, AUGUST 1, 1939, 19 COMP. GEN. 139

CONTRACTS - OFFER AND ACCEPTANCE - ACCEPTANCE TIME LIMITED TO "WITHIN 2 DAYS FROM THE DATE OF THE OPENING" A BID ACCEPTANCE MAILED AFTER THE HOUR SET FOR OPENING OF BIDS ON THE SECOND DAY AFTER THE DAY OF SAID OPENING, BUT BEFORE MIDNIGHT OF THE SECOND DAY, IS AN ACCEPTANCE "WITHIN 2 DAYS FROM THE DATE OF THE OPENING" AS REQUIRED BY THE BIDDER'S OFFER, THE CONDITIONAL OFFER NOT REQUIRING THAT THE TIME SHOULD BE MEASURED IN HOURS FROM THE HOUR ON WHICH THE BIDS WERE OPENED.

COMPTROLLER GENERAL BROWN TO THE COMMISSIONER, FEDERAL PRISON INDUSTRIES INC., AUGUST 1, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 20, 1939, AS FOLLOWS:

THERE HAS BEEN RECEIVED FROM OUR SUPERINTENDENT OF INDUSTRIES AT THE U.S. PENITENTIARY, LEWISBURG, PA., CORRESPONDENCE IN REFERENCE TO AN AWARD TO W. L. JONES, INC., 116 PRINCE STREET, NEW YORK, N.Y.,FOR 1,000 ROLLS OF TAPE, PAPER, GUMMED, KRAFT, 3 INCHES WIDE, AS CALLED FOR IN THEIR INVITATION NO. PI-40-767.

YOU WILL NOTE THAT THE BIDDER SPECIFIED AN ACCEPTANCE BY THE GOVERNMENT TWO DAYS FROM DATE OF THE OPENING, WHICH WAS AT 9:30 A.M. ON JULY 13TH. IN VIEW OF THE FACT THAT THIS MATERIAL WAS A SPECIAL LOT OFFERED SUBJECT TO PRIOR SALE, THE BIDDER PLACED A CONDITION OF ACCEPTANCE IN TWO DAYS ON HIS BID.

CONTRACT NO. J14PI-24 WAS AWARDED, HAVING BEEN MAILED ON THE 15TH OF JULY, POSTMARKED IN LEWISBURG AT 8:00 P.M. THE BIDDER REQUESTS THAT THE CONTRACT BE CANCELLED BECAUSE OF THE FACT THAT THE MILL HAD SOLD THE GOODS AT THE EXPIRATION OF TWO DAYS, OR 48 HOURS.

IT IS REQUESTED THAT YOU ADVISE WHETHER THE LAW TAKES INTO CONSIDERATION PARTS OF DAYS. SHOULD THE CONTRACT BE CANCELLED AND AWARD MADE TO THE NEXT LOW BIDDER? ALL THE PAPERS IN CONNECTION WITH THE CASE ARE ATTACHED; KINDLY RETURN THEM WITH YOUR REPLY.

THE REFERRED-TO REQUEST THAT THE CONTRACT RESULTING FROM THE BID AND ACCEPTANCE BE CANCELED IS CONTAINED IN A LETTER OF JULY 18, 1939, FROM W. L. JONES, INC., AS FOLLOWS:

PLEASE REFER TO ENCLOSED ORDER NO. JPI-66, CONTRACT NO. JPI-14-24. CANNOT ACCEPT THIS ORDER FOR THE FOLLOWING REASONS.

THIS BID OPENED 9:30 A.M. JULY 13. WE ALLOWED YOU 2 DAYS FOR ACCEPTANCE OF THIS BID. WE STIPULATED 2 DAYS DUE TO THE FACT THAT THIS WAS A SPECIAL LOT OF GUMMED TAPE OFFERED TO USE SUBJECT TO PRIOR SALE. WE RECEIVED YOUR ORDER IN THE FIRST MAIL TODAY, JULY 18. THE ENVELOPE THAT YOU SENT THE ORDER IN WAS POSTMARKED JULY 15--- 8:00 P.M.

WE TOOK THE MATTER UP WITH THE MILL WHO OFFERED US THIS SPECIAL LOT AND WE RECEIVED WORD THAT THE GUMMED TAPE WAS SOLD. OUR REGULAR PRICE ON GUMMED TAPE DELIVERED TO YOU WOULD BE 24 3/4 CENTS PER ROLL. IF YOU WISH, WE WOULD BE VERY PLEASED TO SEND YOU OUR REGULAR STOCK AT THIS PRICE (24 3/4 CENTS PER ROLL, NET).

WE HOPE YOU WILL ACCEPT CANCELLATION OF THIS ORDER DUE TO THE EXPLANATION GIVEN ABOVE, AND WOULD LIKE TO RECEIVE AN ACKNOWLEDGMENT OF OUR LETTER STATING THAT WE RETURNED YOUR ORDER TO YOU.

THE TERMS OF THE BID, AS ACCEPTED, ARE, IN PERTINENT PART, THAT---

IN COMPLIANCE WITH THE ABOVE INVITATION FOR BIDS, AND SUBJECT TO ALL THE CONDITIONS THEREOF, THE UNDERSIGNED OFFERS, AND AGREES, IF THIS BID BE ACCEPTED WITHIN 2 DAYS FROM THE DATE OF THE OPENING, TO FURNISH ANY OR ALL OF THE ITEMS UPON WHICH PRICES ARE QUOTED, AT THE PRICE SET OPPOSITE EACH ITEM, F.O.B. LEWISBURG, PENNSYLVANIA * * *.

IT WILL BE NOTED THAT THE BID DOES NOT SPECIFY THAT IT MUST BE ACCEPTED WITHIN 48 HOURS OR WITHIN 2 DAYS OF THE HOUR WHEN BIDS WERE OPENED. THE BID SPECIFIES THAT IF IT BE ACCEPTED "WITHIN 2 DAYS FROM THE DATE OF THE OPENING" THE CONTRACTOR WILL FURNISH THE MATERIAL, ETC., AS STATED IN THE BID FORM. THE BID WAS OPENED, AS YOU HAVE STATED, ON JULY 13 AND IT WAS ACCEPTED ON JULY 15 AND THUS THE ACCEPTANCE WAS "WITHIN 2 DAYS FROM THE DATE OF THE OPENING.' IN FACT THE 2 DAYS DID NOT EXPIRE UNTIL JULY 15 AT 12 MIDNIGHT, WHEREAS THE BID WAS ACCEPTED AND MAILED BY 8 P.M. OF THAT DAY. HAD IT BEEN THE INTENTION OF THE BIDDER THAT ITS BID MUST BE ACCEPTED WITHIN 2 DAYS OF, RATHER THAN FROM THE DATE OF THE OPENING, THAT IS, THAT THE TIME SHOULD BE MEASURED IN HOURS FROM THE HOUR ON WHICH THE BIDS WERE OPENED, THE BID SHOULD HAVE SO SPECIFIED. NOT HAVING SO SPECIFIED AND THE BID HAVING BEEN ACCEPTED WITHIN 2 DAYS FROM THE DATE OF THE OPENING OF THE BID, A CONTRACT RESULTED WHICH IS BINDING ON THE CONTRACTOR TO PERFORM IN ACCORDANCE THEREWITH OR TO PAY THE UNITED STATES ANY EXCESS COST RESULTING FROM DEFAULT IN PERFORMANCE. SEE UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88, AND PURCELL ENVELOPE COMPANY V. UNITED STATES, 249 U.S. 313.

YOUR QUESTION IS ANSWERED ACCORDINGLY. THE PAPERS ARE RETURNED HEREWITH.