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B-135271, APR. 15, 1958

B-135271 Apr 15, 1958
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ESQUIRE: REFERENCE IS MADE TO YOUR BRIEFS SUBMITTED ON MARCH 21. IT WAS HELD IN THE DECISION THAT TELEGRAPHIC BIDS OF THE TWO CORPORATIONS ON AN ADVERTISED PROCUREMENT BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY. SHOULD NOT BE CONSIDERED SINCE THE BIDS WERE NOT RECEIVED ON OR BEFORE 2:00 O-CLOCK P.M. THE FACTS INVOLVED ARE NOT IN DISPUTE. THE TELEGRAPHIC BIDS OF RUTTER- REX MANUFACTURING COMPANY AND BAY GARMENT CORPORATION WERE FILED WITH WESTERN UNION IN NEW ORLEANS. WERE RECEIVED BY THE OFFICE DESIGNATED IN THE INVITATION AT 2:09 AND 2:23 P.M. IT IS CONTENDED THAT THE STRICT CONSTRUCTION GIVEN TO THE TELEGRAPHIC BID CLAUSE CONTAINED IN THE INVITATION FOR BIDS IS NOT WARRANTED AND THAT THERE IS NO SOUND REASON TO DISTINGUISH BETWEEN LATE TELEGRAPHIC BIDS AND BIDS SENT BY MAIL.

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B-135271, APR. 15, 1958

TO MILTON C. GRACE, ESQUIRE:

REFERENCE IS MADE TO YOUR BRIEFS SUBMITTED ON MARCH 21, 1958, AND SUBSEQUENTLY REQUESTING ON BEHALF OF J. H. RUTTER-REX MANUFACTURING COMPANY AND THE BAY GARMENT CORPORATION, BOTH OF NEW ORLEANS, LOUISIANA, RECONSIDERATION OF OUR DECISION TO THE SECRETARY OF THE ARMY DATED MARCH 10, 1958.

IT WAS HELD IN THE DECISION THAT TELEGRAPHIC BIDS OF THE TWO CORPORATIONS ON AN ADVERTISED PROCUREMENT BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT, PHILADELPHIA, PENNSYLVANIA, SHOULD NOT BE CONSIDERED SINCE THE BIDS WERE NOT RECEIVED ON OR BEFORE 2:00 O-CLOCK P.M. EST ON JANUARY 9, 1958, THE PLACE AND TIME SPECIFIED IN THE INVITATION FOR THE OPENING OF THE BIDS.

THE FACTS INVOLVED ARE NOT IN DISPUTE. THE TELEGRAPHIC BIDS OF RUTTER- REX MANUFACTURING COMPANY AND BAY GARMENT CORPORATION WERE FILED WITH WESTERN UNION IN NEW ORLEANS, LOUISIANA, AT :28 AND 1:37 P.M. EST ON JANUARY 9, 1958, OR 32 MINUTES AND 23 MINUTES PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS, AND WERE RECEIVED BY THE OFFICE DESIGNATED IN THE INVITATION AT 2:09 AND 2:23 P.M. EST, RESPECTIVELY.

IT IS CONTENDED THAT THE STRICT CONSTRUCTION GIVEN TO THE TELEGRAPHIC BID CLAUSE CONTAINED IN THE INVITATION FOR BIDS IS NOT WARRANTED AND THAT THERE IS NO SOUND REASON TO DISTINGUISH BETWEEN LATE TELEGRAPHIC BIDS AND BIDS SENT BY MAIL. IT IS FURTHER CONTENDED THAT THE CLAUSE SHOULD BE GIVEN A LIBERAL CONSTRUCTION IN ORDER TO ENABLE CONSIDERATION TO BE GIVEN TO THE LARGEST NUMBER OF BIDS SO AS TO PROMOTE COMPETITION IN THE BEST INTERESTS OF THE GOVERNMENT.

SECTIONS 2304 AND 2305, TITLE 10, U.S.C. REQUIRE THAT PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES GENERALLY SHALL BE MADE BY FORMAL ADVERTISING; THAT THE ADVERTISEMENT SHALL BE MADE IN SUFFICIENT TIME BEFORE THE PURCHASE OR CONTRACT; THAT THE SPECIFICATIONS AND INVITATIONS FOR BIDS SHALL PERMIT FREE AND FULL COMPETITION AND THAT "BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT.'

PARAGRAPHS 2 AND 4 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (STANDARD FORM 30, JUNE 1955 REVISION) PROVIDE AS FOLLOWS:

"2. SUBMISSION OF BIDS.--- (A) BIDS AND MODIFICATIONS THEREOF SHALL BE ENCLOSED IN SEALED ENVELOPES ADDRESSED TO THE ISSUING OFFICE, WITH THE NAME AND ADDRESS OF THE BIDDER, THE DATE AND HOUR OF OPENING, AND THE INVITATION NUMBER ON THE FACE OF THE ENVELOPE. TELEGRAPHIC BIDS WILL NOT BE CONSIDERED UNLESS AUTHORIZED BY THE INVITATION; HOWEVER, BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED SUCH NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.

"4. LATE BIDS.--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.'

ON PAGE 10 OF THE INVITATION IT IS PROVIDED AS FOLLOWS:

"TELEGRAPHIC BID CLAUSE: TELEGRAPHIC BIDS MAY BE SUBMITTED IN RESPONSE TO THIS INVITATION FOR BIDS. TELEGRAPHIC BIDS MUST BE RECEIVED IN THIS OFFICE PRIOR TO THE TIME SPECIFIED FOR THE OPENING OF BIDS. SUCH BIDS MUST SPECIFICALLY REFER TO THIS INVITATION FOR BIDS, AND MUST CONTAIN ALL THE REPRESENTATION AND INFORMATION REQUIRED BY THIS INVITATION FOR BIDS. FAILURE TO FURNISH, IN THE TELEGRAPHIC BID, THE REPRESENTATIONS AND INFORMATION REQUIRED BY THIS INVITATION FOR BIDS MAY REQUIRE REJECTION OF THE BID. SIGNED COPIES OF THE INVITATION FOR BIDS MUST BE FURNISHED IN CONFIRMATION OF THE TELEGRAPHIC BIDS.'

UNDER THE SPECIFIC TERMS OF THE INVITATION, BIDS IN ORDER TO BE CONSIDERED MUST BE RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS. THE ONLY EXCEPTION THERETO IS THAT BIDS SENT BY MAIL WILL BE CONSIDERED IF RECEIVED PRIOR TO AWARD AND IT IS DETERMINED BY THE GOVERNMENT THAT THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

IT IS INCUMBENT UPON BIDDERS TO SEE THAT THEIR BIDS ARE RECEIVED ON OR BEFORE THE TIME SPECIFIED IN THE INVITATION. THE STANDARD TERMS OF GOVERNMENT INVITATIONS FOR BIDS PROVIDE THAT UNLESS SPECIFICALLY PROVIDED FOR IN THE PARTICULAR INVITATION FOR BIDS, TELEGRAPHIC BIDS ARE NOT PERMITTED, ALTHOUGH BIDS MAY BE MODIFIED BY TELEGRAPHIC NOTICE PROVIDED THE NOTICE IS RECEIVED PRIOR TO THE TIME SET FOR THE OPENING OF THE BIDS.

IT IS OUR OPINION THAT WHERE AN INVITATION FOR BIDS PERMITS TELEGRAPHIC BIDS, THE EXCEPTION MUST BE CONSTRUED ACCORDING TO THE ORDINARY MEANING OF THE LANGUAGE USED. WE BELIEVE THAT THERE IS AMPLE REASON TO DISTINGUISH BETWEEN TELEGRAPHIC AND MAILED BIDS. THE POSTAL SERVICE IS A GOVERNMENT INSTRUMENTALITY, AND IT MAY BE CONSIDERED THAT THE GOVERNMENT IS, IN A SENSE, RESPONSIBLE FOR FAILURE OF A MAILED BID TO ARRIVE ON TIME AND THEREFORE SHOULD NOT IMPOSE THE RISK OF DELAY ON A BIDDER. COLLECTION, DESPATCHING, AND DELIVERY OF MAIL ARE ON FIXED SCHEDULES LARGELY INDEPENDENT OF VOLUME, AND, ORDINARILY, IT CAN READILY BE DETERMINED WHETHER THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. THE TELEGRAPH COMPANIES ARE PRIVATE PUBLIC SERVICE CORPORATIONS AND IT IS UNDERSTOOD THAT NO TIME OF DELIVERY WILL BE GUARANTEED AND THAT DELIVERY AT ALL TIMES IS DEPENDENT ON OPERATING CONDITIONS AND VOLUME OF BUSINESS, WHICH VARIES CONSTANTLY FROM HOUR TO HOUR AND DAY TO DAY.

YOU CONTEND THAT OUR DECISION GIVING A LITERAL CONSTRUCTION TO THE PLAIN WORDING OF THE INVITATION IS CONTRARY TO PRIOR DECISIONS, PARTICULARLY 24 COMP. GEN. 350. THAT DECISION, AND OTHER WHICH HAVE FOLLOWED IT, DID NOT DEAL WITH A TELEGRAPHIC BID, BUT WITH AN ATTEMPTED TELEGRAPHIC MODIFICATION OF A WRITTEN BID WHICH HAD BEEN DULY RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS. AS WE EXPLAINED IN OUR PRIOR DECISION OF MARCH 10, 1958, IN THIS CASE, WE BELIEVE THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN THAT SITUATION AND THE ONE HERE UNDER CONSIDERATION.

YOU HAVE IN YOUR ARGUMENT DRAWN AN ANALOGY BETWEEN THE SUBMISSION OF THE BIDS IN QUESTION AND A TELEGRAPHIC ACCEPTANCE OF AN OFFER, WHICH YOU CONTEND IS REGARDED IN THE LAW IN THE SAME LIGHT AS AN ACCEPTANCE BY MAIL. HOWEVER THAT MAY BE, IN THE ABSENCE OF SPECIFIC REFERENCE IN THE OFFER, THE LAW IS CLEAR THAT AN OFFEROR MAY PUT WHATEVER LIMITATION OR RESTRICTION HE WISHES ON THE OFFERREE'S POWER TO ACCEPT, EITHER AS TO TIME OR METHOD. SEE POSTAL TELEGRAPH CABLE CO. V. LOUISVILLE COTTON SEED OIL CO., 140 KY. 506, 131 S.W. 277, HOLDING THAT WHERE AN OFFER WAS EXPRESSLY MADE SUBJECT TO RECEIPT OF ACCEPTANCE BY MIDNIGHT OF A NAMED DAY, A TELEGRAPHIC ACCEPTANCE NOT RECEIVED BY THAT TIME WAS NOT EFFECTIVE.

WE THINK IT EQUALLY CLEAR THAT ONE INVITING PROPOSALS FOR A CONTRACT HAS AT LEAST AS COMPLETE POWER TO PRESCRIBE THE TERMS AND CONDITIONS UPON WHICH OFFERS WILL BE RECEIVED AND CONSIDERED, AND THAT OFFICIALS OF THE GOVERNMENT WHO ARE REQUIRED TO ADVERTISE AND AWARD CONTRACTS BY COMPETITIVE BIDDING MUST NECESSARILY FIX AND STATE SUCH TERMS. "THE AUTHORITY TO INVITE PROPOSALS IMPLIES AN AUTHORITY TO PRESCRIBE REASONABLE TERMS AND CONDITIONS. TO ANNOUNCE UNDER THIS AUTHORITY THAT NO BID WILL BE CONSIDERED WHICH DOES NOT COMPLY WITH CERTAIN DIRECTIONS, AND AFTERWARD TO CONSIDER AND ACCEPT A BID NOT COMPLYING WITH SUCH DIRECTIONS, IS UNJUST TO THE COMPLYING BIDDER.' 13 CP.ATTY.GEN. 510.

AS TO YOUR ARGUMENT THAT THE WORD "MUST" WAS USED THREE TIMES IN THE SAME PARAGRAPH AND SHOULD THEREFORE BE PRESUMED TO HAVE BEEN USED IN THE SAME SENSE IN EACH CASE, WE THINK THAT THE FOLLOWING SENTENCE, WHICH INDICATES THAT TWO OF THE "MUSTS" WERE NOT STRICTLY IMPERATIVE, TENDS RATHER TO EMPHASIZE THAT THE FIRST "MUST," WHICH WAS NOT SO QUALIFIED, WAS INTENDED TO BE ABSOLUTE.

NOR DO WE FIND ANY MERIT IN THE ARGUMENT ADVANCED IN YOUR SUPPLEMENTAL BRIEF FILED HERE ON APRIL 3, WHICH APPEARS TO BE THAT IF THE TELEGRAPHIC BID CLAUSE OF THE INVITATION IS POSITIVE PROHIBITION AGAINST CONSIDERATION OF LATE TELEGRAPHIC BIDS UNDER ANY CONDITIONS, IT IS INCONSISTENT WITH PARAGRAPH 8 (B) OF STANDARD FORM 30, AND IS THEREFORE IN VIOLATION OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, WHICH AUTHORIZES THE ADMINISTRATOR OF GENERAL SERVICES TO PRESCRIBE CONTRACTUAL FORMS FOR MANDATORY USE BY ALL EXECUTIVE AGENCIES. PARAGRAPH 8 (B) PROVIDES ONLY THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN BIDS RECEIVED. WE THINK THE WORDS "BIDS RECEIVED" MEAN BIDS RECEIVED WITHIN THE TIME LIMITED BY THE TERMS OF INVITATION; AND IN ANY EVENT WE DO NOT FEEL THAT THE FAILURE OF AN INTENDING BIDDER TO HAVE ANY BID DOCUMENT WHATSOEVER BEFORE THE BID OFFICERS, OR IN THE UNITED STATES MAIL, AT THE TIME SET FOR OPENING, MAY PROPERLY BE VIEWED AS A MERE INFORMALITY OR MINOR IRREGULARITY.

FOR THESE REASONS WE SEE NO INCONSISTENCY BETWEEN THE TERMS OF THE TELEGRAPHIC BID CLAUSE USED IN THIS INSTANCE, EVEN WHEN READ AS MANDATORY, AND THE PROVISIONS OF PARAGRAPH 8 (B). ON THE CONTRARY, WE BELIEVE THAT THE TELEGRAMS HERE IN QUESTION, IF REGARDED AS BIDS AT ALL, ARE PROPERLY FOR REJECTION UNDER THE EXPRESS TERMS OF THAT PARAGRAPH.

WE HAVE REVIEWED THE MATTER THOROUGHLY BUT STILL CONSIDER THAT THE CONCLUSION REACHED IN THE DECISION OF MARCH 10, 1958, WAS PROPER AND THEREFORE MUST BE ADHERED TO. ..END :

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