B-158464, MAR. 28, 1966

B-158464, MAR. 28, 1966

TO SELLERS, CONNER AND CUNEO ATTORNEYS AND COUNSELORS:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED FEBRUARY 4, 1966, AND TO YOUR LETTERS OF FEBRUARY 14 AND 15, 1966, WRITTEN ON BEHALF OF LEBANON CHEMICAL CORPORATION, PROTESTING CONSIDERATION FOR AWARD OF ANY BID OR MODIFICATION THEREOF ON INVITATION FOR BIDS NO. FPNGC-R 57108-A-1-31-66 WHICH WAS RECEIVED IN THE BID ROOM AFTER 12:30 P.M., EASTERN STANDARD TIME, JANUARY 31, 1966.

THE INVITATION, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, SOLICITED BIDS TO SUPPLY A TOTAL QUANTITY OF 11,848,700 POUNDS OF DDT, 75 PERCENT WATER DISPERSIBLE POWDER, F.A.S. VESSEL, U.S. PORT OF SHIPMENT, TO BE SHIPPED TO PAKISTAN UNDER THE FOREIGN AID PROGRAM. THE OPENING, SCHEDULED TO TAKE PLACE ON MONDAY, JANUARY 31, DID NOT OCCUR UNTIL 12:30 P.M., TUESDAY, FEBRUARY 1, BECAUSE BLIZZARD CONDITIONS PREVAILED IN WASHINGTON, D.C., ON THE FORMER DATE. GOVERNMENT EMPLOYEES GENERALLY WERE GIVEN ADMINISTRATIVE LEAVE ON MONDAY AND ONLY WORKERS PERFORMING ESSENTIAL DUTIES WERE REQUIRED TO REPORT. IT WAS DETERMINED THAT THE OPENING OF BIDS WAS NOT AN ESSENTIAL FUNCTION AND A TWENTY-FOUR HOUR POSTPONEMENT WAS PUT INTO EFFECT ALTHOUGH NO EFFORT WAS MADE TO APPRISE BIDDERS OF THIS.

YOU HAVE ARGUED THAT ONLY BIDS ARRIVING AT THE PROCUREMENT OFFICE PRIOR TO THE ORIGINALLY SCHEDULED BID OPENING TIME AND SUCH LATE BIDS AS MAY BE CONSIDERED PURSUANT TO THE PROVISIONS OF FEDERAL PROCUREMENT REGULATIONS 1 -2.303 AND STANDARD FORM 33-A, DECEMBER 1964 EDITION (WHICH WAS INCORPORATED IN THE INVITATION) MAY BE CONSIDERED ELIGIBLE FOR AWARD UNDER THE INVITATION. WE ARE INFORMED BY THE GENERAL SERVICES ADMINISTRATION THAT FOUR AWARDS, INCLUDING ONE TO YOUR CLIENT, HAVE ALREADY BEEN CONSUMMATED AS FOLLOWS:

CHART

COMPANY TOTAL QUANTITY TOTAL PRICE LEBANON CHEMICAL CORPORATION 707,025 POUNDS $ 154,838.48 ALLIED CHEMICAL CORPORATION 3,091,600 POUNDS 643,744.40 MONTROSE CHEMICAL CORPORATION

OF CALIFORNIA 7,550,000 POUNDS 1,658,215.00 CENTRAL INTERNATIONAL

CORPORATION 500,075 POUNDS 105,671.00 THE BIDS OF YOUR CLIENT, CENTRAL INTERNATIONAL CORPORATION, AND ALLIED CHEMICAL CORPORATION WERE ALL SENT BY CERTIFIED MAIL IN TIME TO HAVE BEEN RECEIVED BY 12:30 P.M. ON JANUARY 31 IN THE REGULAR COURSE OF THE MAILS. TWO TELEGRAPHIC MODIFICATIONS OF YOUR CLIENT'S BID, AND ANOTHER OF THE ALLIED BID WERE RECEIVED IN THE BID OPENING ROOM ON THE MORNING OF FEBRUARY 1. A SECOND MODIFICATION OF THE ALLIED BID WAS DELIVERED BY HAND THAT MORNING. THE MONTROSE BID HAD BEEN DISPATCHED ON JANUARY 29 FROM MAPLEWOOD, NEW JERSEY, BY REGULAR MAIL AND DID NOT ARRIVE UNTIL 9:00 A.M. ON THE MORNING OF FEBRUARY 1. ONE HOUR LATER A MONTROSE REPRESENTATIVE PERSONALLY DELIVERED ANOTHER COPY OF THE ENTIRE BID WHICH SET FORTH A SMALL CHANGE IN THE TERMS OF THE OFFER.

WE THINK OUR OFFICE MUST ACQUIESCE IN THE DECISION OF THE CONTRACTING OFFICER TO CONSIDER ALL THE ABOVE BIDS, AS MODIFIED PRIOR TO 12:30 P.M. ON FEBRUARY 1, IN AWARDING THE GOVERNMENT'S ADVERTISED REQUIREMENTS. IT IS TRUE THAT 41 U.S.C. 253 (B) STATES CATEGORICALLY THAT "ALL BIDS SHALL BE PUBLICLY OPENED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT.' THE PRIMARY PURPOSES OF THIS REQUIREMENT ARE, IN OUR OPINION, TO INSURE EQUAL AND PUBLIC TREATMENT OF ALL BIDS, AND TO AFFORD INTERESTED BIDDERS AND OTHERS AN OPPORTUNITY TO ATTEND SUCH BID OPENINGS. THERE IS NO SHOWING IN THE PRESENT CASE THAT THESE OBJECTIVES WERE NOT ACHIEVED BY THE OPENING ON FEBRUARY 1. WE BELIEVE IT WOULD BE UNREASONABLE TO CONSTRUE THE STATUTE AS PRECLUDING AN INFORMAL POSTPONEMENT OF BID OPENING IN SITUATIONS WHERE NOT TO DO SO MIGHT WELL FRUSTRATE ITS PRIMARY PURPOSES. HERE AN UNFORESEEABLY HEAVY SNOW-FALL OCCURRED ON SATURDAY PRIOR TO THE MONDAY SET FOR THE OPENING. TRANSPORTATION TO AND FROM THE CITY WAS PARALYZED AND THE ORDINARY CHANNELS OF COMMUNICATION WERE TO A GREAT EXTENT DISRUPTED. THERE WERE NO MAIL DELIVERIES ON MONDAY AND THE FACILITIES OF WESTERN UNION WERE NOT FUNCTIONING IN A NORMAL MANNER. FORMAL POSTPONEMENT WAS THEREFORE IMPRACTICAL IF NOT IMPOSSIBLE. IF THE STATUTE AND REGULATIONS WERE TO BE CONSTRUED LITERALLY THE GOVERNMENT WOULD BE DEPRIVED OF THE BENEFITS OF FULL AND FREE COMPETITION. IT IS LIKELY THAT, BUT FOR THE STORM, ALL THE BIDS AND MODIFICATIONS RECEIVED IN CONNECTION WITH THE PROCUREMENT WOULD HAVE BEEN TIMELY. IF THE OPENING HAD TAKEN PLACE ON JANUARY 31, AS SCHEDULED, THE TOTAL QUANTITY OF DDT POWDER BID UPON WOULD NOT HAVE EQUALLED THE GOVERNMENT'S REQUIREMENTS.

IN B-152999 DATED MARCH 11, 1964, AND B-153288 DATED MARCH 19, 1964, WE HAD OCCASION TO DEAL WITH THE QUESTION OF THE LEGAL EFFECT OF THE NATIONAL DAY OF MOURNING FOR THE LATE PRESIDENT KENNEDY, WHICH WAS DECLARED ON SATURDAY BY PRESIDENTIAL PROCLAMATION, UPON BID OPENINGS PREVIOUSLY SCHEDULED TO TAKE PLACE ON THE FOLLOWING MONDAY. IN THE FORMER CASE WE UPHELD AN AWARD CONSUMMATED AS THE RESULT OF AN OPENING HELD ON THE DAY OF COMMEMORATION AND IN THE LATTER WE ACQUIESCED IN AN AWARD MADE AFTER THE TIME BID OPENING HAD BEEN POSTPONED TO A TIME SUBSEQUENT TO THAT DAY. THE FORMER CASE IT WAS OBSERVED THAT THE EXECUTIVE ORDER DID NOT HAVE THE EFFECT OF POSTPONING, AUTOMATICALLY, THE DATE OF OPENING UNTIL THE NEXT BUSINESS DAY AND THE CONTRACTING OFFICER DETERMINED TO HOLD IT AS ORIGINALLY SCHEDULED. IN THE LATTER CASE THE CONTRACTING OFFICER DECIDED TO POSTPONE THE OPENING AND DID SO IN AN INFORMAL MANNER. ALTHOUGH WE CRITICIZED THE INFORMAL PROCEDURES UTILIZED IN THE POSTPONEMENT, AND EXPRESSED A PREFERENCE FOR THE DISPATCH OF WRITTEN NOTIFICATION TO PROSPECTIVE BIDDERS WELL IN ADVANCE OF THE NEW OPENING TIME, ASSUMING TIME WOULD PERMIT, THE COMMENT WAS MADE THAT:

"* * * WE KNOW OF NO LEGAL REQUIREMENT THAT THERE BE AN OPENING OF BIDS WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT TO POSTPONE THE OPENING * * *.'

WE THINK THE CONTRACTING OFFICER WAS AUTHORIZED TO POSTPONE THE OPENING IN THE MANNER IN WHICH HE DID BECAUSE OF INCLEMENT WEATHER AND THEREFORE WE DO NOT REGARD THE BID OF MONTROSE CHEMICAL CORPORATION, AS AMENDED, OR THE MODIFICATIONS TO YOUR CLIENT'S BID AND TO THE BID OF ALLIED CHEMICAL CORPORATION, AS LATE BIDS WITHIN THE MEANING OF FEDERAL PROCUREMENT REGULATIONS 1-2.303-1. WE ARE ADVISED THAT THE REGULATIONS ARE BEING REVISED TO DEAL SPECIFICALLY WITH SIMILAR SITUATIONS OCCURRING IN THE FUTURE. FOR THE REASONS SET FORTH ABOVE YOUR PROTEST IS DENIED.