B-149736, SEP. 27, 1962

B-149736, SEP. 27, 1962

TO HERRICK L. JOHNSTON, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF AUGUST 17, 1962, PROTESTING THE CONSIDERATION BY THE DEPARTMENT OF THE AIR FORCE OF A BID SUBMITTED BY THE COSMODYNE CORPORATION IN RESPONSE TO INVITATION NO. 33-601-63-32, ISSUED BY THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

THE RECORD DISCLOSES THAT THE REFERRED-TO INVITATION REQUESTED BIDS -- TO BE OPENED AT 2:30 P.M. ON AUGUST 3, 1962--- FOR FURNISHING ONE 1,200- GALLON LIQUID OXYGEN STORAGE TANK; THAT AT THE DESIGNATED TIME ON AUGUST 3, 1962, THREE BIDS INCLUDING THAT OF YOUR FIRM WERE PUBLICLY OPENED AND READ IN THE PRESENCE OF YOUR REPRESENTATIVE, MISS ANNABELLA J. PRICE, AND A REPRESENTATIVE OF THE SUPERIOR AIR PRODUCTS COMPANY, MR. JOSEPH W. ROSENBERG; AND THAT YOUR BID WAS THE LOWEST OF THOSE READ AT THE BID OPENING. IT IS REPORTED THAT AFTER YOUR REPRESENTATIVE LEFT THE BID OPENING ROOM, IT WAS DISCOVERED THAT TWO OTHER BIDS WHICH WERE SUBMITTED IN RESPONSE TO THIS INVITATION HAD BEEN RECEIVED IN THE BID OPENING OFFICE PRIOR TO THE TIME OF THE SCHEDULED OPENING BUT THAT THROUGH INADVERTENCE THESE TWO BIDS, ONE OF WHICH WAS THAT OF THE COSMODYNE CORPORATION, WERE FILED WITH ANOTHER INVITATION SCHEDULED FOR OPENING THE SAME DAY. THE TWO BIDS THEN WERE OPENED AND READ TO MR. ROSENBERG, THE REPRESENTATIVE OF SUPERIOR AIR PRODUCTS COMPANY, WHO HAD REMAINED IN THE BID OPENING OFFICE. SINCE THE COSMODYNE CORPORATION HAD SUBMITTED THE LOWEST BID IF $8,788.75 AND SINCE THE BID WAS RECEIVED IN THE BID OPENING OFFICE PRIOR TO THE TIME SET FOR OPENING OF BIDS, AN AWARD WAS MADE TO THAT FIRM ON AUGUST 10, 1962.

YOU CONTEND THAT SINCE THE BID OF THE COSMODYNE CORPORATION WAS NOT IN THE HANDS OF THE OFFICER WHO OPENED THE BIDS AT THE HOUR OF THE BID OPENING AND WAS NOT OPENED AND READ IN THE PRESENCE OF THOSE WHO ATTENDED THE BID OPENING, THE BID SHOULD BE REGARDED AS A LATE BID SUBJECT TO THE RULES CONTROLLING THE DISPOSITION OF SUCH BIDS.

THE CONDITIONS UNDER WHICH LATE BIDS MAY BE CONSIDERED ARE SET FORTH IN THE INVITATION UNDER THE PARAGRAPH ENTITLED "LATE BIDS AND MODIFICATIONS OR WITHDRAWALS" AND ARE, IN PERTINENT PART, AS FOLLOWS:

"BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AT THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING OF BIDS WILL NOT BE CONSIDERED UNLESS: (A) THEY ARE RECEIVED BEFORE AWARD IS MADE; (B) THEY ARE SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED; AND (C) IT IS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO EITHER (I) DELAY IN THE MAILS, OR DELAY BY THE TELEGRAPH COMPANY IF TELEGRAPHIC BIDS ARE AUTHORIZED, FOR WHICH THE BIDDER WAS NOT RESPONSIBLE OR (II) MISHANDLING BY THE GOVERNMENT AFTER RECEIPT AT THE GOVERNMENT INSTALLATION. * * *"

YOU STATE THAT YOU HAVE LEARNED THROUGH THE SMALL BUSINESS REPRESENTATIVE AT THE WRIGHT-PATTERSON AIR FORCE BASE THAT THE BID OF THE COSMODYNE CORPORATION WAS NOT SENT BY REGISTERED OR CERTIFIED MAIL AND THAT THUS IT FAILS TO MEET CONDITION (B) OF THE PROVISIONS OF THE INVITATION COVERING CONSIDERATION OF LATE BIDS.

SINCE THE BID OF COSMODYNE CORPORATION WAS TIMELY MAILED AND TIMELY RECEIVED IN THE BID OPENING OFFICE, IT WAS NOT A LATE BID WITHIN THE MEANING OF PARAGRAPH 2-303.1 OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH PROVIDES: "BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS.'" ALSO, THE INVITATION DEFINES A "LATE" BID AS ONE WHICH ARRIVES LATE "AT THE OFFICE DESIGNATED.' THE BID OF THE COSMODYNE CORPORATION ARRIVED AT THE OFFICE DESIGNATED PRIOR TO THE TIME SET FOR OPENING OF BIDS. HENCE, SINCE THE BID OF THE CORPORATION IS NOT A "LATE" BID, NEITHER THE RULES COVERING CONSIDERATION OF THAT TYPE OF BID NOR THE CONDITION TO WHICH YOU REFER ARE FOR APPLICATION IN THE PRESENT CASE.

IT IS THEREFORE CONCLUDED THAT THERE IS NO PROPER BASIS UPON WHICH OUR OFFICE WOULD BE WARRANTED IN QUESTIONING THE CONSIDERATION OF THE BID OF THE COSMODYNE CORPORATION BY THE DEPARTMENT OF THE AIR FORCE.