B-223211, JUN 18, 1986, 86-1 CPD 571
Highlights
A BIDDER WHO RELIES ON ORAL ASSURANCES THAT THE BID OPENING DATE WILL BE EXTENDED DOES SO AT ITS OWN RISK SINCE SUCH ADVISE IS NOT BINDING UPON THE AGENCY. CTC CONTENDS THAT IT WAS ORALLY INFORMED BY ARMY PERSONNEL THAT THE OPENING DATE WOULD BE EXTENDED FROM MAY 1 TO MAY 21. IT WAS IMPROPERLY DENIED AN OPPORTUNITY TO BID AND CONTENDS THAT THE SOLICITATION SHOULD BE CANCELED AND THE REQUIREMENT RESOLICITED. WHILE CTC MAY HAVE BEEN MISLED BY THE ORAL ADVICE OF DLA PERSONNEL. WHICH IS SET FORTH AT 48 C.F.R. SPECIFICALLY WARNS BIDDERS THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF A CONTRACT WILL NOT BE BINDING UPON THE AGENCY. WE HAVE HELD THAT WHERE A SOLICITATION PROVISION CLEARLY PUTS BIDDERS ON NOTICE NOT TO RELY UPON THE ORAL REPRESENTATIONS OF AGENCY PERSONNEL.
B-223211, JUN 18, 1986, 86-1 CPD 571
ESTOPPEL - AGAINST GOVERNMENT - NOT ESTABLISHED - PRIOR ERRONEOUS ADVISE, CONTRACT ACTIONS, ETC. DIGEST: WHERE A SOLICITATION EXPRESSLY CAUTIONS BIDDERS AGAINST RELYING UPON ORAL ADVICE FROM AGENCY PERSONNEL, A BIDDER WHO RELIES ON ORAL ASSURANCES THAT THE BID OPENING DATE WILL BE EXTENDED DOES SO AT ITS OWN RISK SINCE SUCH ADVISE IS NOT BINDING UPON THE AGENCY.
CONNECTOR TECHNOLOGY CORPORATION:
CONNECTOR TECHNOLOGY CORPORATION (CTC) PROTESTS THE FAILURE OF THE DEFENSE LOGISTICS AGENCY (DLA) TO EXTEND THE BID OPENING DATE OF INVITATION FOR BIDS (IFB) NO. DLA400-86-B-5639. CTC CONTENDS THAT IT WAS ORALLY INFORMED BY ARMY PERSONNEL THAT THE OPENING DATE WOULD BE EXTENDED FROM MAY 1 TO MAY 21, 1986, BUT ON MAY 16 IT DISCOVERED THAT THE AMENDMENT AUTHORIZING THE EXTENSION HAD NOT BEEN ISSUED AND THAT THE BIDS HAD BEEN OPENED ON MAY 1. CTC ASSERTS THAT AS A RESULT, IT WAS IMPROPERLY DENIED AN OPPORTUNITY TO BID AND CONTENDS THAT THE SOLICITATION SHOULD BE CANCELED AND THE REQUIREMENT RESOLICITED.
WE DISMISS THE PROTEST.
WHILE CTC MAY HAVE BEEN MISLED BY THE ORAL ADVICE OF DLA PERSONNEL, THE AGENCY HAS ADVISED US THAT THE IFB CONTAINED THE CLAUSE REQUIRED BY THE FEDERAL ACQUISITION REGULATION (FAR), SEC. 14.201-6(C)(2) (1984), TO BE INSERTED IN ALL IFBS (EXCEPT THOSE FOR CONSTRUCTION NOT ESTIMATED TO EXCEED $10,000). THIS CLAUSE, WHICH IS SET FORTH AT 48 C.F.R. SEC. 52.214 -6, SPECIFICALLY WARNS BIDDERS THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF A CONTRACT WILL NOT BE BINDING UPON THE AGENCY. WE HAVE HELD THAT WHERE A SOLICITATION PROVISION CLEARLY PUTS BIDDERS ON NOTICE NOT TO RELY UPON THE ORAL REPRESENTATIONS OF AGENCY PERSONNEL, BIDDERS RELY ON SUCH ADVICE AT THEIR OWN PERIL. TRI-STATE LAUNDRY SERVICES, INC., B-218042, FEB. 1, 1985, 85-1 CPD PARA. 127; DOANE BUILDING CORP. ET AL., B-211942 ET AL., OCT. 24, 1983, 83-2 CPD PARA. 480. THEREFORE, ANY ERRONEOUS ORAL ADVICE CTC RECEIVED NEITHER BINDS THE GOVERNMENT NOW, NOR REQUIRES THAT THE PROCUREMENT BE RECOMPETED. ID.
IN ADDITION, IT APPEARS THAT THE AGENCY ACTUALLY INTENDED TO EXTEND THE BID OPENING DATE BUT WAS PREVENTED FROM DOING SO BY A COMBINATION OF UNFORESEEN CIRCUMSTANCES, INCLUDING THE ILLNESS OF THE CONTRACTING OFFICER. THERE IS NO EVIDENCE OF BAD FAITH OR A DELIBERATE EFFORT TO EXCLUDE CTC. UNDER THESE CIRCUMSTANCES, WE FIND NO MERIT TO THE PROTEST.
THE PROTEST IS DISMISSED.