B-150691, MARCH 22, 1963, 42 COMP. GEN. 514

B-150691, MARCH 22, 1963, 42 COMP. GEN. 514

BIDS - WITHDRAWAL - AFTER OPENING UNDER A CONTRACT FOR ORANGE JUICE AWARDED AFTER DENIAL OF A BID WITHDRAWAL SUBMITTED SUBSEQUENT TO BID OPENING ON THE BASIS OF A PRICE INCREASE DUE TO THE PARTIAL FREEZE DAMAGE TO THE FLORIDA CITRUS CROP, WHICH HAD OCCURRED PRIOR TO BID OPENING, THE CONTRACTOR MAY NOT BE RELIEVED FROM THE CONTRACT, THE CONTRACTING OFFICER PROPERLY REFUSING TO ALLOW HIM TO WITHDRAW HIS BID PRIOR TO THE EXPIRATION OF THE ACCEPTANCE PERIOD, AND THE CONTRACTOR HAVING KNOWLEDGE OF THE FREEZE BEFORE BID OPENING HAD AMPLE TIME TO WITHDRAW HIS BID PRIOR TO BID OPENING, AS REQUIRED BY THE INVITATION FOR BIDS, HIS BID REMAINED EFFECTIVE DURING THE TIME HE KNEW OR SHOULD HAVE KNOWN OF THE FREEZE AND HE, THEREFORE, IN SUBMITTING A BID ASSUMED THE RISKS RESULTING FROM THE FREEZE, AND THE ATTEMPTED WITHDRAWAL OF HIS BID AFTER OPENING AND PRIOR TO THE EXPIRATION OF THE ACCEPTANCE PERIOD WAS OF NO FORCE OR EFFECT.

TO EDWARD BOKER FOODS, INC., MARCH 22, 1963:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 23, 1963, AND ENCLOSURES, REQUESTING THAT YOU BE RELIEVED FROM THE TERMS OF A CONTRACT AWARDED YOUR FIRM ON JANUARY 17, 1963, UNDER INVITATION FOR BIDS NO. CC-Q-38-63 ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH). SPECIFICALLY YOUR REQUEST FOR RELIEF CONCERNS ITEM 16 OF THE INVITATION WHICH CALLED FOR FURNISHING A QUANTITY OF ORANGE JUICE FROZEN UNSWEETENED CONCENTRATE 12/32-OUNCE CANS UPON WHICH YOU BID $6.15 PER CASE.

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

YOUR LETTERS DATED JANUARY 3 AND 10, 1963 AND PHOTOSTATIC COPIES OF THE PACKER'S PRICE LISTS HAVE BEEN RECEIVED AND REVIEWED FOR CONSIDERATION OF YOUR REQUEST FOR PERMISSION TO WITHDRAW YOUR BID ON ITEM 16, FROZEN ORANGE JUICE LISTED ON INVITATION FOR BIDS NO. CC-Q-38 63, OPENING DATE DECEMBER 20, 1962.

YOUR REQUEST FOR WITHDRAWAL OF ITEM 16 IS DENIED AS IT IS EVIDENCED BY THE PHOTOSTATIC COPY OF THE PRICE LIST EFFECTIVE DECEMBER 13, THROUGH DECEMBER 23, 1962 FURNISHED BY THE PACKER, PASCO PACKING CO., THAT YOU HAD AMPLE NOTICE AND TIME TO WITHDRAW YOUR BID PRIOR TO THE OFFICIAL OPENING DATE. THIS PRICE LIST SHOWED A SUBSTANTIAL INCREASE IN THE COST OF ORANGE JUICE AS A RESULT OF THE EXTENSIVE FREEZE DAMAGE TO THE FLORIDA CITRUS CROP. ALSO, THE PACKER INCORPORATED A STATEMENT TO THE EFFECT THAT THE PRICE QUOTED WAS ENTIRELY INTERIM, SUBJECT TO CHANGE AT ANY TIME, UNTIL THE CROP DAMAGE COULD BE EVALUATED.

IN VIEW OF THE AFOREMENTIONED CIRCUMSTANCES, AWARD OF ITEM 16 FOR ONE HUNDRED AND SEVENTY (170) CASES OF ORANGE JUICE AT $6.15 PER CASE WILL BE MADE TO EDWARD BOKER FROSTED FOODS, INC. THIS ACTION, HOWEVER, DOES NOT PRECLUDE YOUR REFERRAL OF THIS MATTER TO THE COMPTROLLER GENERAL FOR FURTHER REVIEW.

YOU STATE THAT TO FULFILL THE CONTRACT WOULD RESULT IN A SUBSTANTIAL LOSS AND YOUR REQUEST FOR RELIEF IS MADE ON THE BASIS OF THIS FACT AND, ALSO, UPON THE BASIS OF EXCUSE DUE TO AN ACT OF GOD OVER WHICH YOU HAD NO CONTROL.

WE HAVE BEEN ADVISED INFORMALLY BY NIH THAT THE SUBJECT INVITATION FOR BIDS CONTAINED STANDARD FORM 33. PARAGRAPH 4 OF THIS FORM PROVIDES AS FOLLOWS:

4. LATE BIDS.--- BIDS AND MODIFICATIONS OR WITHDRAWALS THEREOF RECEIVED AFTER THE TIME SET FOR OPENING WILL NOT BE CONSIDERED, UNLESS THEY ARE RECEIVED BEFORE THE AWARD IS MADE, AND IT IS DETERMINED BY THE GOVERNMENT THAT FAILURE TO ARRIVE ON TIME WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE.

SEE, ALSO, SECTION 1-2.304 (A) AND (B) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). SUBSECTION (A) OF THAT SECTION PROVIDES, AMONG OTHER THINGS, THAT BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR OPENING OF BIDS. SUBSECTION (B) OF FPR SEC. 1-2.304 PROVIDES THAT A BID MAY BE WITHDRAWN IN PERSON BY A BIDDER OR HIS AUTHORIZED REPRESENTATIVE, PROVIDED HIS IDENTITY IS MADE KNOWN AND HE SIGNS A RECEIPT FOR THE BID, BUT ONLY IF THE WITHDRAWAL IS PRIOR TO THE EXACT TIME SET FOR OPENING OF BIDS.

IT HAS BEEN HELD WITH RESPECT TO THE RIGHT OF A BIDDER TO WITHDRAW IN PERSON BY A BIDDER OR HIS AUTHORIZED REPRESENTATIVE, PROVIDED HIS IDENTITY IS MADE KNOWN AND HE SIGNS A RECEIPT FOR THE BID, BUT ONLY IF THE WITHDRAWAL IS PRIOR TO THE EXACT TIME SET FOR OPENING OF BIDS.

IT HAS BEEN HELD WITH RESPECT TO THE RIGHT OF A BIDDER TO WITHDRAW HIS BID SUBMITTED IN RESPONSE TO A GOVERNMENT INVITATION FOR BIDS THAT WHERE THERE IS NO MISTAKE, UNREASONABLE DELAY, OR THE LIKE, THERE CAN BE NO INJUSTICE IN HOLDING THE BIDDER TO THE CONDITIONS OF THE INVITATION FOR BIDS. REFINING ASSOCIATES, INC. V. UNITED STATES, 109 F.SUPP. 259, 124 CT.CL. 115. SEE. ALSO. W.A. SCOTT V. UNITED STATES, 44 CT.CL. 524. THE INSTANT CASE THE SUBJECT INVITATION PROVIDED THAT WITHDRAWALS OF BIDS RECEIVED AFTER THE TIME SET FOR OPENING WOULD NOT BE CONSIDERED. FURTHERMORE, WE HAVE BEEN ADVISED INFORMALLY THAT YOUR BID SPECIFIED AN ACCEPTANCE PERIOD OF 60 DAYS. IT MUST BE CONCLUDED, THEREFORE, THAT THE CONTRACTING OFFICER'S ACTION IN REFUSING TO ALLOW YOU TO WITHDRAW YOUR BID PRIOR TO THE EXPIRATION OF THE ACCEPTANCE PERIOD SPECIFIED WAS PROPER AND YOUR ATTEMPT TO REVOKE YOUR BID PRIOR TO ACCEPTANCE WAS INEFFECTIVE.

THERE IS YET ANOTHER REASON WHY WE MUST CONCLUDE THAT THE AWARD OF THE CONTRACT TO YOU WAS PROPER. BIDS WERE OPENED ON DECEMBER 20, 1962, WHILE THE FREEZE WHICH DESTROYED A PORTION OF THE CITRUS CROP IN FLORIDA OCCURRED ON THE NIGHTS OF DECEMBER 12, 13 AND 14, 1962. IT THUS APPEARS THAT YOU HAD AMPLE TIME TO WITHDRAW YOUR BID PRIOR TO BID OPENING. VIEW OF THIS FACT IT MUST BE CONCLUDED THAT YOU INTENDED THAT YOUR BID REMAIN EFFECTIVE DURING THE TIME WHEN YOU KNEW, OR SHOULD HAVE KNOWN, OF THE FREEZE. SEE THE REFINING ASSOCIATES CASE CITED ABOVE. IN THAT CASE THE PLAINTIFF SUBMITTED A BID TO FURNISH CERTAIN SPECIFIED ITEMS OF OIL LUBRICANTS. THE INVITATION CONTAINED A NOTICE WITH RESPECT TO LATE WITHDRAWALS OF BIDS SIMILAR TO THAT IN THE INSTANT CASE. BIDS WERE OPENED ON OCTOBER 15, 1948. ON OCTOBER 21, 1948, THE PLAINTIFF ATTEMPTED TO WITHDRAW ITS BID DUE TO INABILITY TO FURNISH THE OIL LUBRICANTS BECAUSE OF CIRCUMSTANCES BEYOND ITS CONTROL. THESE "CIRCUMSTANCES" WERE LATER EXPLAINED BY THE PLAINTIFF TO BE A STRIKE OF LONGSHOREMEN AND REFINING EMPLOYEES ON THE PACIFIC COAST WHERE PLAINTIFF WAS LOCATED. HOWEVER, THE COURT NOTED THAT THE LONGSHOREMEN'S STRIKE STARTED ON AUGUST 25, 1948, AND LASTED UNTIL DECEMBER 8, 1948, WHILE THE REFINING EMPLOYEES' STRIKE BEGAN SEPTEMBER 1, 1948, AND CONTINUED UNTIL DECEMBER 3, 1948. THE GOVERNMENT DENIEDPLAINTIFF'S REQUEST TO WITHDRAW ITS BID AND ACCEPTED ITS BID AS SUBMITTED. IN DENYING PLAINTIFF'S CLAIM FOR MONIES WITHHELD BY THE GOVERNMENT AS COMPENSATION FOR EXCESS COSTS INCURRED WHEN PLAINTIFF REFUSED TO CARRY OUT ITS CONTRACT, THE COURT OF CLAIMS STATED THAT:

* * * THERE IS NO EVIDENCE THAT THE STRIKES IN ANY WAY AFFECTED PLAINTIFF'S ABILITY TO PERFORM. THESE STRIKES HAD BEEN IN PROGRESS AT LEAST A MONTH WHEN PLAINTIFF SUBMITTED ITS BID. IN SPITE OF THIS FACT, PLAINTIFF SELECTED AS HIS PORT OF CHOICE LOS ANGELES OR SAN FRANCISCO, WHERE THE STRIKES WERE GOING ON. PLAINTIFF KNEW, OR SHOULD HAVE KNOWN,OF THE STRIKES AT THE TIME THE BID WAS SUBMITTED. IN THE ABSENCE OF EVIDENCE, PLAINTIFF'S CONTENTION THAT ITS REVOCATION WAS DUE TO THE STRIKES IS UNJUSTIFIED.

IN VIEW OF THE FACTS IN THIS CASE IT MUST BE CONCLUDED THAT IN SUBMITTING YOUR BID YOU ASSUMED ANY AND ALL RISKS RESULTING FROM THE FREEZE, AND THE ATTEMPTED WITHDRAWAL OF YOUR BID AFTER OPENING AND PRIOR TO THE EXPIRATION OF THE 60-DAY ACCEPTANCE PERIOD SPECIFIED IN THE INVITATION WAS OF NO FORCE OR EFFECT. ACCORDINGLY, YOUR REQUEST FOR RELIEF FROM THE CONTRACT IS DENIED.