B-117995, DEC 11, 1953

B-117995, DEC 11, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED DECEMBER 9, 1953, WITH ENCLOSURES, FROM THE CHIEF, PROCUREMENT POLICY DIVISION, OFFICE, DEPUTY CHIEF OF STAFF, MATERIEL, REQUESTING TO BE ADVISED WHETHER IN VIEW OF THE CIRCUMSTANCES DESCRIBED THEREIN, A BID SUBMITTED BY B. L. GUSTAFSON MAY BE CONSIDERED FOR AWARD UNDER INVITATION FOR BIDS NO. 02-064-54-3 ISSUED BY LUKE AIR FORCE BASE, GLENDALE, ARIZONA.

THE INVITATION FOR BIDS, COVERING CERTAIN REPAIRS TO A RUNWAY, WAS ISSUED BY THE PURCHASING AND CONTRACTING OFFICE ON SEPTEMBER 23, 1953, AND PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 10:00 A.M. MST, OCTOBER 23, 1953 (FRIDAY) AND THEN PUBLICLY OPENED. AT THE TIME OF THE OPENING OF THE BIDS, ONLY ONE BID WAS RECEIVED FOR THE WORK COVERED BY SCHEDULE IV OF THE INVITATION. ON MONDAY, SEPTEMBER 26, 1953, AT 2:00 P.M., A LOWER BID BY B. L. GUSTAFSON ON SCHEDULE IV WAS RECEIVED IN THE PURCHASING AND CONTRACTING OFFICE. SINCE SAID BID CLEARLY SHOWED THAT IT WAS NOT MAILED IN TIME TO HAVE BEEN RECEIVED PRIOR TO THE TIME SET FOR THE OPENING, THE CONTRACTING OFFICER PROPOSED TO REJECT THE BID AND MAKE AWARD TO THE OTHER BIDDER.

BY LETTER DATED NOVEMBER 5, 1953, B. L. GUSTAFSON PROTESTED AN AWARD ON SUCH BASIS AND REQUESTED THAT HIS BID BE CONSIDERED OR THAT ALL BIDS ON SCHEDULE IV BE REJECTED AND THE WORK READVERTISED. IN SAID LETTER, MR. GUSTAFSON CONCEDES THE FACT THAT HIS BID, WHICH SHOWS THAT IT WAS MAILED IN PHOENIX, ARIZONA AT 9:30 A.M. ON OCTOBER 23, 1953, WAS NOT MAILED IN SUFFICIENT TIME TO HAVE BEEN RECEIVED BY THE PURCHASING AND CONTRACTING OFFICE PRIOR TO THE HOUR FIXED FOR THE OPENING. HOWEVER, MR. GUSTAFSON ALLEGES THAT HIS OFFICE WAS ADVISED BY AN EMPLOYEE OF THE ENGINEERING OFFICE AT LUKE AIR FORCE BASE THAT HIS BID WOULD BE TIMELY AND ACCEPTABLE IF POSTMARKED AT THE POST OFFICE AT ANY TIME PRIOR TO THE TIME OF THE SCHEDULED BID OPENING; THAT HIS BID WAS SUBMITTED IN GOOD FAITH AND UPON INFORMATION THAT ANY REASONABLE MAN WOULD FEEL ENTITLED TO RELY UPON; AND THAT SINCE LUKE AIR FORCE BASE IS ONLY APPROXIMATELY 15 MILES FROM HIS PLACE OF BUSINESS THAT IT IS QUITE APPARENT THAT HE COULD HAVE ALMOST AS EASILY RUN THE BID TO THE PURCHASING AND CONTRACTING OFFICE AS TO HAVE TAKEN IT TO THE POST OFFICE.

ALL BIDDERS WERE ON NOTICE THAT IN ORDER TO RECEIVE CONSIDERATION, BIDS WOULD HAVE TO BE RECEIVED IN THE OFFICE SPECIFIED PRIOR TO THE OPENING TIME. THE ONLY EXCEPTION TO THIS IS WHERE A BID ARRIVES BY MAIL AFTER THE TIME FIXED FOR THE OPENING, BUT BEFORE AWARD IS MADE, AND IT IS SHOWN TO THE SATISFACTION OF THE GOVERNMENT THAT THE NON ARRIVAL ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. IS UNFORTUNATE THAT THE BIDDER WAS MISADVISED BY THE ENGINEERING OFFICE. HOWEVER, THE BIDDER SHOULD HAVE MADE INQUIRY FROM THE PURCHASING AND CONTRACTING OFFICE.

WHILE IT MAY WELL BE THAT MR. GUSTAFSON WAS NOT ENTIRELY TO BLAME, IT IS NOT A QUESTION OF WHO OR WHAT WAS RESPONSIBLE FOR THE DELAY. IF THE GOVERNMENT WERE TO INQUIRE INTO THE CIRCUMSTANCES TO DETERMINE FAULT OR BLAME EVERY TIME A BID ARRIVED LATE, THE CONFUSION WOULD BE ENDLESS AND THE DOOR OPENED TO POSSIBLE FRAUD. CONSEQUENTLY, YOU ARE ADVISED THAT THE BID OF MR. GUSTAFSON SHOULD BE DISREGARDED.

WITH RESPECT TO THE QUESTION AS TO WHETHER ALL BIDS COULD BE REJECTED AND A CONTRACT NEGOTIATED, SECTION 2(C)(1) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, PROVIDES THAT ALL PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES MAY BE NEGOTIATED BY THE AGENCY HEAD SPECIFIED IN SECTION 2(A) WITHOUT ADVERTISING, IF DETERMINED TO BE NECESSARY IN THE PUBLIC INTEREST DURING A PERIOD OF NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OR BY THE CONGRESS. A NATIONAL EMERGENCY WAS DECLARED BY THE PRESIDENT OF THE UNITED STATES ON DECEMBER 16, 1950, AND UNDER DATE OF DECEMBER 18, 1950, THE THEN ASSISTANT SECRETARY OF THE AIR FORCE DETERMINED IN ACCORDANCE WITH SAID SECTION 2(C)(1) THAT IT WAS NECESSARY IN THE PUBLIC INTEREST THAT PURCHASES AND CONTRACTS FOR SUPPLIES AND SERVICES UNDER SAID ACT BE NEGOTIATED WITHOUT FORMAL ADVERTISING DURING THE PERIOD OF SAID NATIONAL EMERGENCY. THUS, THERE APPEARS NO QUESTION BUT THAT ALL BIDS ON SCHEDULE IV COULD BE REJECTED AND A CONTRACT ENTERED INTO BY NEGOTIATION. HOWEVER, THE QUESTION OF WHETHER OR NOT SUCH ACTION SHOULD BE TAKEN IN THE PRESENT CASE IS A MATTER FOR ADMINISTRATIVE DETERMINATION.

THE BID OF B. L. GUSTAFSON, ENCLOSED WITH THE LETTER OF DECEMBER 9, 1953, IS FORWARDED HEREWITH, THE OTHER PAPERS BEING RETAINED IN THIS OFFICE.