B-144430, SEP. 6, 1961

B-144430, SEP. 6, 1961

TO DEVINE, MILLIMET AND MCDONOUGH, ESQUIRES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 18, 1961, REQUESTING RECONSIDERATION OF OUR DECISION DATED FEBRUARY 20, 1961, TO THE SECRETARY OF THE ARMY, CONCERNING THE AWARD OF CONTRACTS NOS. DA 36-243-QM/CTM/-8058 -T-60 AND DA-36-243-QM/CTM/-8060-T-60 TO MANCHESTER KNITTED FASHIONS, INC. ALSO THERE HAVE BEEN RECEIVED YOUR LETTERS DATED MAY 3, AUGUST 1 AND AUGUST 2, 1961, WITH ENCLOSURES, RELATING TO THIS MATTER.

IT WAS STATED IN YOUR LETTER OF APRIL 18, 1961, AMONG OTHER THINGS, THAT OUR DECISION IGNORED THE LANGUAGE CONTAINED IN SECTIONS 52, 53, AND 54 OF MCTSA-PQMD FORM 502-8 CONCERNING LATE BIDS, AND ALSO FAILED TO MEET THE PROTESTS SET FORTH IN YOUR LETTERS OF JUNE 10, AUGUST 4, AUGUST 16, AND SEPTEMBER 20, 1960. WITH YOUR LETTER OF AUGUST 1, 1961, YOU ENCLOSED COPIES OF THE LETTERS DATED AUGUST 16 AND SEPTEMBER 20, 1960, AND ALSO A COPY OF A LETTER DATED AUGUST 29, 1960, FROM R. M. LEMKE, ESQUIRE, GENERAL COUNSEL, DEPARTMENT OF THE ARMY, AND WITH RESPECT TO THE LATTER YOU STATED THAT A PORTION OF YOUR CLIENT'S POSITION WAS SET FORTH IN THE LAST PARAGRAPH THEREOF.

ALSO, IN SUPPORT OF YOUR PROTEST, YOU REFERRED TO THE CASE OF MILLER V. UNITED STATES, 104 CT.CL. 461, WHICH, YOU STATED, HOLDS THAT YOUR CLIENT COULD HAVE WITHDRAWN ITS MODIFICATION PRIOR TO ACCEPTANCE AND YOU TOOK THE POSITION THAT BY A LETTER DATED APRIL 13, 1960, TO THE CONTRACTING OFFICER, MR. HERMAN S. WERNER DID WITHDRAW THE MODIFICATION. FOR THE REASONS SET FORTH IN YOUR SEVERAL LETTERS YOU REQUESTED THAT OUR DECISION BE MODIFIED SO AS TO SUSTAIN THE POSITION OF YOUR CLIENT.

IT IS OUR VIEW THAT THE LETTER OF APRIL 13, 1960, MAY NOT BE CONSTRUED AS A WITHDRAWAL OF THE SECOND TELEGRAPHIC MODIFICATION WHICH WAS RECEIVED IN THE OFFICE OF THE CONTRACTING OFFICER SHORTLY AFTER THE BID OPENING HOUR. AS WE READ THAT LETTER, IT CONTAINED A MERE STATEMENT OF FACT CONCERNING THE LATE DELIVERY OF THE INDICATED TELEGRAM, AND THERE WAS NOT THE SLIGHTEST INDICATION THEREIN THAT IT WAS MR. WERNER'S INTENTION TO WITHDRAW YOUR CLIENT'S BID. IF SUCH WAS MR. WERNER'S INTENTION, IT WAS HIGHLY CONCEALED IN THE LANGUAGE USED. FOR THE PURPOSE OF THE RECORD WE QUOTE THE LETTER OF APRIL 13, 1960, AS FOLLOWS:

"WITH REFERENCE TO YOUR LETTER DATED 8 APRIL 1960, PER ABOVE REFERENCE, OUR SECOND TELEGRAPHIC CHANGE WAS ISSUED TO YOU WITH THE INTENT THAT IT WOULD ARRIVE IN ADEQUATE TIME BEFORE THE BID OPENED. HOWEVER, WE FIND THAT UPON CHECKING WITH WESTERN UNION, IT WAS DELIVERED AT 11:07 A.M., WHICH WAS LATE IN ARRIVING TO MEET THE OPENING TIME OF 11:00 A.M. SPECIFIED IN THE INVITATION.'

FOR THE PURPOSE OF THIS DECISION WE FEEL THAT WE ARE NOT CALLED UPON TO DECIDE WHETHER UNDER THE HOLDING IN THE MILLER CASE YOUR CLIENT COULD HAVE WITHDRAWN ITS BID, SINCE IT APPEARS TO BE A FACT THAT SUCH ACTION WAS NOT TAKEN. IT MAY BE SAID ALSO THAT THE FACTS IN THE MILLER CASE APPEAR TO BE READILY DISTINGUISHABLE FROM THE FACTS INVOLVED IN THE INSTANT MATTER, SINCE THE OFFER THERE INVOLVED WAS WITHDRAWN BEFORE IT HAD BEEN COMMUNICATED TO THE CONTRACTING OFFICER. UPON THE BASIS OF THE RECORD, THE PROVISIONS OF PARAGRAPH 2-305 (A) OF THE ARMED SERVICES PROCUREMENT REGULATIONS, REFERRED TO IN OUR DECISION OF FEBRUARY 20, 1961, APPEAR TO BE APPLICABLE. THESE ARE TO THE EFFECT THAT A MODIFICATION RECEIVED FROM AN OTHERWISE SUCCESSFUL BIDDER WHICH IS FAVORABLE TO THE GOVERNMENT AND WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS SHALL BE CONSIDERED AT ANY TIME SUCH MODIFICATION IS RECEIVED.

WE HAVE CAREFULLY CONSIDERED THE MATTERS SET FORTH IN YOUR SEVERAL LETTERS AND FOR THE REASONS SET FORTH ABOVE WE FEEL THAT WE WOULD NOT BE JUSTIFIED IN RECOMMENDING OR APPROVING A MODIFICATION OF THE CONTRACT IN THIS CASE.