B-161638, JUN. 21, 1967

B-161638, JUN. 21, 1967

TO (WORDS ILLEGIBLE) STUPAR ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 25, 1967, PROTESTING ON BEHALF OF YOUR CLIENT, MORAUER AND HARTZELL, INC., AGAINST THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS NO. NOY/R/-98388, ISSUED MAY 3, 1967, BY THE CHESAPEAKE DIVISION, NAVAL FACILITIES ENGINEERING COMMAND (NFEC). THE SUBJECT INVITATION SOLICITED BIDS WHICH WERE TO BE PUBLICLY OPENED AT 2:00 P.M. EASTERN STANDARD TIME ON MAY 23, 1967, FOR A LICENSE TO STOCKPILE MATERIAL AT THE UNITED STATES NAVAL STATION, WASHINGTON, D.C.

THE FOLLOWING FIVE BIDDERS SUBMITTED BIDS IN RESPONSE TO THE INVITATION IN THE AMOUNTS SHOWN:

EXCAVATION-CONSTRUCTION, INC. $61,345

MORAUER AND HARTZELL, INC. 60,155

POTTS AND CALAHAN, INC. 58,000

REGAL CONSTRUCTION CO. 32,901

HARRIS AND BROOKS, INC. 12,000

YOUR PROTEST IS PREDICATED IN PART UPON A CONTENTION THAT THE BIDS WERE PREMATURELY OPENED AT :00 P.M. DAYLIGHT SAVINGS TIME (1:00 P.M. EASTERN STANDARD TIME), AN HOUR EARLIER THAN SPECIFIED BY THE TERMS OF THE INVITATION. YOU ALSO CONTEND THAT THE BID OPENING WAS NOT PUBLIC IN THAT NONE OF THE INTERESTED BIDDERS OR THEIR REPRESENTATIVES WERE PRESENT AT THE ACTUAL TIME OF OPENING.

WE ARE ADVISED BY THE PROCUREMENT AGENCY THAT ALTHOUGH BIDS WERE IN FACT OPENED PREMATURELY, THIS INADVERTENCE DID NOT PREJUDICE ANY OF THE BIDDERS SINCE NO ADDITIONAL BIDS OR BID MODIFICATIONS WERE RECEIVED UP TO 3:00 P.M. EDST, (2:00 P.M. EASTERN STANDARD TIME). ALTHOUGH SECTION 2305 (C) OF TITLE 10, U.S.C. PROVIDES CATEGORICALLY "BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT," WE DO NOT FEEL THAT THE PURPOSE AND INTENT OF THIS PROVISION WAS COMPROMISED HERE. CF. 34 COMP. GEN. 395, 398. WE HAVE CONSISTENTLY HELD THAT IN THE CONSIDERATION OF THE VAST VARIETY OF PROBLEMS WHICH ARISE IN CONNECTION WITH FORMAL ADVERTISING, THE PUBLIC INTEREST REQUIRES THEIR RESOLUTION, NOT IN TERMS OF RITUALISTIC ADHERENCE TO THE FORM OR MECHANICS OF FORMAL ADVERTISING, BUT BY TAKING THAT COURSE OF ACTION WHICH, UNDER ALL THE CIRCUMSTANCES OF THE PARTICULAR CASE, WILL BEST PROTECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. B-149878, NOVEMBER 20, 1962.

AS TO YOUR SECOND CONTENTION THAT THE BIDS WERE NOT OPENED PUBLICLY, WE ARE ADVISED BY THE PROCUREMENT AGENCY THAT THERE WAS COMPLIANCE WITH ALL OF THE PROCEDURES NORMALLY ATTENDANT AT SUCH OPENINGS. THE PRIMARY PURPOSES OF THE REQUIREMENT FOR A PUBLIC OPENING 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 OPENINGS. THERE IS NO SHOWING IN THE PRESENT CASE THAT THESE OBJECTIVES WERE NOT ACHIEVED HERE.

IN THAT REGARD, WE ARE FURTHER ADVISED THAT AT 2:00 P.M., LOCAL TIME ON MAY 23, 1967, THE CONTRACTING OFFICIALS ANNOUNCED TO ALL PERSONS PRESENT IN THE BID ROOM THAT BIDS SUBMITTED IN RESPONSE TO THE SUBJECT INVITATION WERE TO BE OPENED, AND INTERESTED PERSONS WERE INVITED TO COME TO THE DESK WHERE THE BIDS WERE OPENED. PRESENT IN THE BID ROOM AT THAT TIME WERE PERSONNEL FROM TWO OTHER DIVISIONS OF NFEC, AS WELL AS OTHER PERSONS REPRESENTING CONTRACTORS WHO WERE THEN VISITING THE OFFICE FOR VARIOUS OTHER REASONS. BIDS WERE THEN OPENED, EXAMINED, READ ALOUD, AND RECORDED AND AFFIRMED BY THE THREE PERSONS WHO SIGNED THE BID ABSTRACT. IT IS REPORTED THAT NO BIDS WERE SUBMITTED SUBSEQUENT TO BID OPENING, AND NONE OF THE INTERESTED BIDDERS ATTEMPTED TO MODIFY OR CHANGE THEIR BIDS IN ANY MANNER THEREAFTER.

IN THE ABSENCE OF ANY EVIDENCE OR SUGGESTION THAT THE HIGHEST BIDDER OBTAINED ANY ADVANTAGE, AND SINCE CANCELLATION OF THE PROCUREMENT WOULD BE PREJUDICIAL BOTH TO THE GOVERNMENT AND TO THE HIGHEST BIDDER, OUR OFFICE IS OF THE OPINION THAT NO VALID BASES EXIST TO QUESTION AN OTHERWISE PROPER AWARD TO THE HIGHEST RESPONSIVE, RESPONSIBLE BIDDER.