B-123920, JUNE 2, 1955, 34 COMP. GEN. 650

B-123920, JUNE 2, 1955, 34 COMP. GEN. 650

SALES - BIDS - DELAYS A SURPLUS PROPERTY BID WHICH ARRIVES AT THE ADMINISTRATIVE OFFICE AFTER THE TIME FIXED FOR OPENING BIDS DUE TO AN UNANTICIPATED MAIL DELAY, BUT BEFORE THE CONTRACT AWARD, IS A LEGITIMATELY DELAYED BID WHICH MAY BE CONSIDERED AND, THEREFORE, A BIDDER WHO DEFAULTS AFTER ACCEPTANCE OF A DELAYED BID IS NOT ENTITLED TO A REFUND OF THE BID DEPOSIT.

COMPTROLLER GENERAL CAMPBELL TO FRED SCHWARTZ AND IRVING COHEN, JUNE 2, 1955:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1955, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 20, 1955, DISALLOWING YOUR CLAIM FOR $600 AS REFUND OF THE BID DEPOSIT MADE WITH YOUR BID ON WHICH CONTRACT NO. N655S-19474, DATED OCTOBER 26, 1954, WAS BASED.

BY INVITATION FOR BIDS NO. B-100-55, DATED SEPTEMBER 27, 1954, THE U.S. NAVAL SUPPLY DEPOT CLEAR FIELD, OGDEN, UTAH, REQUESTED BIDS--- TO BE OPENED AT 10:30 A.M., OCTOBER 15, 1954--- FOR THE PURCHASE FROM THE GOVERNMENT OF THE USABLE PROPERTY CONSISTING OF DEISEL AND GASOLINE ENGINES, COMPONENTS AND ACCESSORIES, HARDWARE AND ELECTRICAL ITEMS AS DESCRIBED UNDER ITEMS 1 TO 119, INCLUSIVE. THE INVITATION REQUIRED BIDDERS TO MAKE A DEPOSIT EQUAL TO 20 PERCENT OF THE TOTAL AMOUNT OF THEIR BIDS AND PROVIDED:

18.BID GUARANTEE AND LIQUIDATED DAMAGES: THE BIDDER AGREES THAT (1) THE BID WILL NOT BE WITHDRAWN WITHIN THE TIME SPECIFIED FOR ACCEPTANCE AFTER THE OPENING OF BIDS (60 CALENDAR DAYS IF NO PERIOD BE SPECIFIED BY THE BIDDER), AND WILL DURING THAT TIME REMAIN FIRM AND IRREVOCABLE, AND THAT (2) THE BIDDER WILL PAY TO THE GOVERNMENT THE PURCHASE PRICE OF THE PROPERTY IN ACCORDANCE WITH THE BID IF ACCEPTED. IF A BID DEPOSIT IS REQUIRED, THE BID MUST BE ACCOMPANIED WITH SAID BID DEPOSIT. IF AFTER AWARD THE PURCHASER FAILS TO PAY THE BALANCE OF THE PURCHASE PRICE, FAILS TO REMOVE THE MATERIAL, OR OTHERWISE FAILS TO PERFORM ANY OF ITS OBLIGATIONS, HE WILL THEREBY LOSE ALL RIGHT, TITLE, AND INTEREST IN THE MATERIAL HEREUNDER, AND THE GOVERNMENT MAY, AT ITS ELECTION, RETAIN THE MATERIAL AND MAY RETAIN FROM ANY AMOUNT PAID BY THE PURCHASER, AS LIQUIDATED DAMAGES, A SUM EQUAL TO TWENTY PERCENT OF THE PURCHASE PRICE PLUS ANY ACCRUED CHARGES HEREUNDER. THE BALANCE, IF ANY, SHALL BE REMITTED TO THE PURCHASER.

IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID ON ITEMS 24, 27, 28 AND 30. THE RECORD SHOWS THAT THE ENVELOPE IN WHICH YOUR BID WAS SUBMITTED BEARS A POSTMARK SHOWING IT WAS POSTED AIR MAIL AT 11:30 P.M., OCTOBER 14, 1954, AT LOS ANGELES, CALIFORNIA. THE ADMINISTRATIVE OFFICE HAS REPORTED THAT YOUR BID WAS RECEIVED AT THE NAVAL SUPPLY DEPOT CLEAR FIELD AT 2:00 P.M. ON FRIDAY, OCTOBER 15, 1954; THAT SINCE THE BID WAS NOT RECEIVED PRIOR TO THE TIME FIXED FOR OPENING, IT WAS OPENED ON THE NEXT WORK DAY, MONDAY, OCTOBER 18, 1954, AFTER THE CONTRACTING OFFICER HAD DETERMINED THAT IT WAS A "LEGITIMATELY DELAYED BID; " THAT YOUR BID WAS THE HIGHEST RECEIVED ON ITEMS 27, 28 AND 30 AND THE ONLY BID RECEIVED ON ITEM 24; AND THAT IT WAS ACCEPTED PURSUANT TO GOVERNING REGULATIONS. THE RECORD INDICATES THAT YOU WERE AWARE OF THE POSSIBILITY THAT RECEIPT OF YOUR BID WOULD BE DELAYED SINCE YOU SENT THE FOLLOWING TELEGRAM ON OCTOBER 15, 1954, TO THE CONTRACTING OFFICER:

ADVISING YOU MY BID CATALOG B-100-55 OPENING OCTOBER 15TH MAY POSSIBLY BE DELAYED DUE TO DISRUPTED FLIGHT SCHEDULES COVERING AIR MAIL BID POSTED IN AMPLE TIME FOR YOU TO RECEIVE BUT HAVE BEEN NOTIFIED BY US POST OFFICE OF UNFORESEEN DELAY DUE TO ABOVE MENTIONED HINDRANCE APPRECIATE YOUR HONORING MY BID ON ARRIVAL. ( ITALICS SUPPLIED.)

IT APPEARS THAT YOU WERE PRESENT AT THE NAVAL SUPPLY DEPOT CLEAR FIELD ON OCTOBER 18, 1954, PRIOR TO THE OPENING OF YOUR BID, AND MADE INQUIRY AS TO WHETHER THE BID HAD BEEN RECEIVED. ALSO, IT APPEARS THAT, UPON EXAMINING THE ABSTRACT OF THE BIDS OPENED ON OCTOBER 15, 1954, AND FINDING THAT YOUR BID WAS NOT LISTED THEREON, AND ASCERTAINING THAT YOUR BID HAD BEEN RECEIVED IN THE CONTRACTING OFFICE, YOU MADE AN INFORMAL REQUEST THAT YOUR BID BE RETURNED TO YOU. YOU REFUSED TO MAKE PAYMENT OF THE BALANCE OF THE CONTRACT PRICE AND REMOVE THE MATERIALS AWARDED TO YOU AND HAVE BEEN DECLARED IN DEFAULT. THE BID DEPOSIT OF $600 HAS BEEN RETAINED PURSUANT TO PARAGRAPH 18 OF THE GENERAL SALE TERMS AND CONDITIONS, SUPRA. YOUR REQUEST FOR REVIEW OF THE SETTLEMENT DISALLOWING YOUR CLAIM IS BASED ON A RESTATEMENT OF YOUR PRIOR CONTENTION THAT YOUR BID WAS RECEIVED IN THE CONTRACTING OFFICE TOO LATE TO BE CONSIDERED AND, THEREFORE, THAT THE ACCEPTANCE DID NOT CONSUMMATE A VALID AND BINDING CONTRACT.

THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES:

2-302. TIME OF SUBMISSION. BIDS SHALL BE SUBMITTED IN SUFFICIENT TIME TO REACH THE DESIGNATED OFFICE PRIOR TO THE TIME FIXED FOR OPENING. BIDS RECEIVED AFTER THE TIME FIXED FOR OPENING ARE LATE BIDS; AND THE EXACT DATE AND HOUR OF MAILING SUCH BIDS, AS SHOWN BY THE CANCELLATION STAMP OR BY THE STAMP OF AN APPROVED METERING DEVICE SHALL BE RECORDED. SUCH LATE BIDS SHALL BE CONSIDERED PROVIDED THEY ARE RECEIVED BEFORE THE AWARD HAS BEEN MADE AND PROVIDED THE FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. * * *

THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, VOLUME II, CHAPTER 9 (NOW CHAPTER 6), PARAGRAPH 26157, PROVIDES:

E. LATE BIDS.

(1) LEGITIMATELY DELAYED BIDS. IF A BID WHICH IS RECEIVED AFTER THE OPENING BUT PRIOR TO THE MAKING OF AN AWARD BEARS A POSTMARK INDICATING THAT IT WAS MAILED IN TIME TO ARRIVE BEFORE THE HOUR OF OPENING, IT WILL BE CONSIDERED A LEGITIMATELY DELAYED BID AND WILL BE RECORDED IN THE BID BOOK OVER THE USUAL CERTIFICATES. THE WORDS " LEGITIMATELY DELAYED," TIME OF ARRIVAL, AND THE INITIALS OF THE DISPOSAL OFFICER WILL BE ENTERED IN THE " REMARKS" COLUMN. THE POSTMARKED ENVELOPE IN WHICH THE BID WAS SUBMITTED WILL BE SECURELY ATTACHED TO THE BID. WHEN DOUBT EXISTS AS TO WHETHER A BID WAS MAILED IN TIME TO ARRIVE BEFORE THE HOUR OF OPENING, THE OPINION OF LOCAL POSTAL AUTHORITIES WILL BE OBTAINED IN WRITING. * * * (ITALICS SUPPLIED.)

THE RECORD CONTAINS A WRITTEN STATEMENT ADDRESSED TO THE DISPOSAL DIVISION BY AN EMPLOYEE OF THE OGDEN POSTAL TRANSPORTATION SERVICE, AS FOLLOWS:

AIRMAIL POSTMARKED 11:30 P.M. OCTOBER 14TH, 1954; AT LOS ANGELES, CALIF., WOULD REACH N.S.D. IN TIME TO BE OPENED, OCTOBER 15TH, 1954 AT 10:30 A.M. ALTHOUGH BY LETTER OF NOVEMBER 5, 1954, THE DISTRICT SUPERINTENDENT, POSTAL TRANSPORTATION SERVICE, OGDEN, UTAH, ADVISED YOU THAT YOUR BID COULD NOT HAVE REACHED THE DISPOSAL OFFICE BY THE TIME FIXED FOR THE OPENING, BY LETTER OF NOVEMBER 12, 1954, COPY OF WHICH WAS FURNISHED TO YOU, HE ADVISED THE DISTRICT SUPERINTENDENT, POSTAL TRANSPORTATION SERVICE, LOS ANGELES, CALIFORNIA, THAT THE INFORMATION IN THE EARLIER LETTER WAS ERRONEOUS, AND THAT YOUR BID WOULD HAVE BEEN DELIVERED TO THE DISPOSAL OFFICE BY THE TIME FIXED FOR THE OPENING UNDER NORMAL CONDITIONS. BY LETTER OF DECEMBER 1, 1954, COPY OF WHICH WAS FURNISHED TO YOU, THE DISTRICT SUPERINTENDENT, POSTAL TRANSPORTATION SERVICE, OGDEN, ADVISED THE COMMANDING OFFICER, NAVAL SUPPLY DEPOT CLEAR FIELD, THAT THE FLIGHT ON WHICH YOUR BID NORMALLY WOULD HAVE BEEN DISPATCHED TO SALT LAKE CITY, UTAH, OPERATED LATE ON ACCOUNT OF FOG AND THAT SUCH FACT APPARENTLY WAS THE CAUSE OF LATE DELIVERY OF YOUR BID. SUCH STATEMENT IS SUPPORTED BY A LETTER OF NOVEMBER 24, 1954, FROM WESTERN AIR LINES TO YOU.

THE RECORD NOW BEFORE OUR OFFICE REQUIRES THE CONCLUSIONS THAT YOUR BID WAS MAILED IN TIME TO HAVE REACHED THE DISPOSAL OFFICE BY THE TIME FIXED FOR OPENING UNDER NORMAL CIRCUMSTANCES; THAT YOUR BID WAS A "LEGITIMATELY DELAYED BID" WITHIN THE MEANING OF THAT TERM AS USED IN APPLICABLE REGULATIONS; AND THAT THE CONTRACTING OFFICER ACTED IN ACCORDANCE WITH THE GOVERNING REGULATIONS IN OPENING AND CONSIDERING YOUR BID. UNDER SUCH CIRCUMSTANCES, IT MUST BE HELD THAT THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. SUCH ACCEPTANCE VESTED IN THE GOVERNMENT THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE ACCEPTED BID AND NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN THE GOVERNMENT OR ACQUIRED BY IT UNDER A CONTRACT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, AND CERTIORARI DENIED, 280 U.S. 574; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.1CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.1CLS 327, 335, ..END :