B-174401, MAY 10, 1972

B-174401, MAY 10, 1972

BID PROTEST - LATE BID DECISION SUSTAINING PRIOR DENIAL OF A PROTEST OF PERIPHERAL DATA MACHINES, INC., AGAINST A DETERMINATION OF THE FEDERAL AVIATION ADMINISTRATION THAT ITS BID WAS LATE AND, THEREFORE, COULD NOT BE CONSIDERED. IT IS AN OFFEROR'S PRIME RESPONSIBILITY TO SUBMIT ITS BID PRIOR TO THE TIME SPECIFIED IN THE INVITATION, REGARDLESS OF THE TIME OF ACTUAL OPENING OR THE ALLEGED INCONSISTENCY OF THE AGENCY'S CLOCKS. THE PROTEST MUST BE DENIED SINCE ANY RELAXATION OF THIS RULE WOULD ONLY INCREASE DISAGREEMENT AND THE OPPORTUNITY FOR FRAUDS. 47 COMP. GEN. 784. (1968).

TO TUFO, JOHNSTON & ZUCCOTTI:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1972, AND SUBSEQUENT COMMUNICATIONS, ON BEHALF OF PERIPHERAL DATA MACHINES, INCORPORATED (PER DATA), REQUESTING RECONSIDERATION OF OUR DECISION OF FEBRUARY 7, 1972, WHICH SUSTAINED THE ADMINISTRATIVE DETERMINATION THAT PER DATA'S BID IN RESPONSE TO INVITATION FOR BIDS (IFB) WA4M-1-0501/1, WAS LATE AND THEREFORE NOT FOR CONSIDERATION.

YOU CONTEND THAT NO FACTS HAVE BEEN PROVIDED THAT REFUTE PER DATA'S CONTENTION THAT THEIR REPRESENTATIVE HANDED THE BID TO AN EMPLOYEE OF THE FAA PRIOR TO THE TIME THE FIRST BID WAS READ. IT IS YOUR BELIEF THAT THIS, COUPLED WITH THE INCONSISTENCY OF FAA'S OWN CLOCKS, WARRANTS CONSIDERATION OF THE PER DATA BID.

OUR DECISION OF FEBRUARY 14, 1972, DID NOT REJECT THE CONCLUSION THAT PER DATA'S REPRESENTATIVE HANDED THE BID TO AN EMPLOYEE OF THE FAA PRIOR TO BID OPENING. HOWEVER, ACCEPTING THIS ARGUENDO, WE CITED PREVIOUS DECISIONS WHERE THE LATE BID COULD NOT BE CONSIDERED EVEN THOUGH NO BIDS HAD BEEN OPENED PRIOR TO ITS SUBMISSION. THESE DECISIONS ARE GROUNDED IN THE CONCEPT THAT TO PERMIT OTHER FACTORS TO AFFECT OR ALTER THE PRECISE TIME CLEARLY STATED IN THE INVITATION WOULD WEAKEN THE COMPETITIVE SYSTEM.

YOU CONTEND THAT CONSIDERATION SHOULD ALSO BE GIVEN TO AN APPARENT INCONSISTENCY BETWEEN THE CLOCK IN THE FAA COMMUNICATIONS CENTER AND THE WALL CLOCK IN THE BID OPENING ROOM. THERE IS NO VALID BASIS FOR ASSUMING THAT THE CLOCK IN THE COMMUNICATIONS CENTER REFLECTED THE CORRECT LOCAL TIME WHILE THE CLOCK IN THE BID OPENING ROOM WAS INCORRECT. IN ANY CASE, AS WE INDICATED IN OUR EARLIER DECISION, THE FEDERAL PROCUREMENT REGULATIONS GIVE THE BID OPENING OFFICER THE AUTHORITY TO DECIDE WHEN THE TIME SET FOR OPENING HAS ARRIVED. UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE BID OPENING OFFICER COULD PROPERLY RELY ON THE CLOCK IN THE BID OPENING ROOM TO ESTABLISH THE TIME FOR BID OPENING, AND THAT PER DATA'S REPRESENTATIVE WAS NOT JUSTIFIED IN RELYING UPON THE COMMUNICATIONS CENTER CLOCK EVEN THOUGH HE WAS NOT AWARE OF THE EXISTENCE OF THE BID OPENING ROOM CLOCK.

THE APPLICABLE RULES AND REGULATIONS IMPOSE UPON THE OFFERORS THE PRIME RESPONSIBILITY TO SEE THAT HAND-CARRIED BIDS REACH THE DESIGNATED OFFICE BY THE SPECIFIED TIME. OUR OFFICE HAS TAKEN THE POSITION THAT COMPETITION IS STRENGTHENED BY INSURING THAT ONLY BIDS RECEIVED BEFORE THE TIME STATED ARE CONSIDERED. IN VIEW OF THIS POLICY, PLUS THE FACT THAT THE REGULATIONS SPECIFICALLY PRECLUDE THE CONSIDERATION OF A LATE BID, WE SEE NO REASON TO OBJECT TO THE ADMINISTRATIVE DETERMINATION IN REFUSING TO CONSIDER PER DATA'S BID. WHILE THIS MAY OPERATE HARSHLY IN CERTAIN INSTANCES, ANY RELAXATION OF THE RULES WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO THEIR APPLICABILITY UNDER VARYING CIRCUMSTANCES AND WOULD INCREASE THE OPPORTUNITY FOR FRAUDS. 47 COMP. GEN. 784 (1968).

FOR THESE REASONS, OUR DECISION OF FEBRUARY 14, 1972, IS SUSTAINED.