B-140978, OCT. 29, 1959

B-140978, OCT. 29, 1959

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED OCTOBER 23, 1959, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, FURNISHING A REPORT RELATIVE TO THE PROTEST OF STANFORD PAPER SALES CORPORATION AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 25-600-60-31, ISSUED BY OFFUTT AIR FORCE BASE, NEBRASKA.

THE INVITATION, STANDARD FORM 33, REQUESTED BIDS FOR FURNISHING 4 SPECIFIED ITEMS OF PAPER AS DESCRIBED THEREIN. ON THE FRONT PAGE OF THE INVITATION, IN THE SPACE PROVIDED FOR BIDDERS TO SHOW THE NUMBER OF DAYS ALLOWED FOR ACCEPTANCE OF THEIR BIDS, THERE WAS PLACED AN ASTERISK AND BIDDERS WERE WARNED TO "SEE PROVISION D BEFORE COMPLETING.' PROVISION D ON PAGE 4 OF THE INVITATION PROVIDES, IN PART, AS FOLLOWS:

"NOTICE TO BIDDERS: BIDS OFFERING LESS THAN 30 DAYS FOR ACCEPTANCE BY THE GOVERNMENT FROM THE DATE OF OPENING WILL BE CONSIDERED NON RESPONSIVE AND WILL BE REJECTED. * * *"

THE NINE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE PUBLICLY OPENED ON SEPTEMBER 29, 1959. THE BID OF THE STANFORD PAPER SALES CORPORATION, HOWEVER, OFFERED AN ACCEPTANCE TIME OF ONLY 15 DAYS. ALL OTHER BIDDERS, EXCEPT ONE, OFFERED THE REQUIRED ACCEPTANCE TIME OF 30 DAYS. THE BID OF STANFORD PAPER SALES CORPORATION IS LOW ON ITEMS 2, 3, AND 4.

BY TELEGRAM OF OCTOBER 2, 1959, STANFORD PAPER SALES CORPORATION OFFERED TO EXTEND THE PERIOD FOR ACCEPTANCE OF ITS BID TO THE FULL 30 DAYS AFTER THE OPENING OF THE BIDS, OR TO OCTOBER 29, 1959. THE BIDDER WAS ADVISED BY THE CONTRACTING OFFICER THAT THE OFFER TO EXTEND THE TIME FOR ACCEPTANCE COULD NOT BE ACCEPTED AFTER THE BID OPENING AS IT WOULD BE PREJUDICIAL TO OTHER BIDDERS AND HE ADVISED THAT THE BID WOULD BE REJECTED AS BEING NON-RESPONSIVE, CITING COMPTROLLER GENERAL'S DECISION, B-136528, DATED AUGUST 6, 1958.

THE BIDDER PROTESTED SUCH ACTION BY LETTER OF OCTOBER 7, 1959, TO THE CONTRACTING OFFICER AND LETTER OF OCTOBER 13, 1959, ADDRESSED TO THIS OFFICE. THE BIDDER ALLEGES THAT IN PREPARING THE BID IT HAD INADVERTENTLY OVERLOOKED THE REQUIREMENT OF PROVISION D AND INDICATED AN ACCEPTANCE TIME OF ONLY 15 DAYS. IT IS STATED THAT A CHANGE IN A BIDDER'S ACCEPTANCE TIME SHOULD BE LOOKED UPON AS A MINOR INFORMALITY OR IRREGULARITY IN BIDS, AS GENERALLY DESCRIBED IN ASPR, SECTION 2 404, REVISED 20 APRIL 1959. THE BIDDER ALSO STATES THAT HE OBTAINED A COPY OF DECISION B-136528, FROM THIS OFFICE AND THAT THERE IS NO SIMILARITY BETWEEN THE CASE LEADING TO THAT DECISION AND THE SITUATION HERE INVOLVED.

THERE WERE TWO DECISIONS IN CASE NO. B-136528 TO DIFFERENT BIDDERS AND UNFORTUNATELY STANFORD PAPER SALES CORPORATION APPARENTLY OBTAINED A COPY OF A DECISION DATED AUGUST 19, 1958, IN WHICH THERE WAS INVOLVED A REQUEST FOR A CHANGE IN THE METHOD OF EVALUATING DISCOUNTS OFFERED BY A BIDDER FROM THAT SET FORTH IN THE INVITATION. THE DECISION OF AUGUST 6, 1958, B- 136528, DOES INVOLVE A SITUATION SIMILAR TO THAT HERE INVOLVED AND IT ALSO STATED THEREIN, IN PART, AS OLLOWS:

"WITH REFERENCE TO YOUR LETTER IN WHICH YOU OFFERED TO WAIVE THIS TECHNICALITY WITH RESPECT TO THE ACCEPTANCE PERIOD AND TO FURNISH THE RACKS IN ACCORDANCE WITH THE SPECIFICATIONS, SUCH OFFER, HAVING BEEN RECEIVED AFTER THE OPENING OF BIDS, CANNOT PROPERLY BE GIVEN ANY CONSIDERATION. IN NUMEROUS DECISIONS OUR OFFICE HAS HELD THAT TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. IN SUPPORT OF THIS POSITION, ATTENTION IS INVITED TO THE CASE OF CITY OF CHICAGO V. MOHR, 216 ILL. 320; 74 N.E. 1056, WHEREIN THE COURT STATED AS FOLLOWS:

" "* * * WHERE A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING) IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'"

A DEVIATION IN THE TIME ALLOWED FOR ACCEPTANCE FROM THAT SPECIFICALLY SET FORTH IN AN INVITATION IS NOT BELIEVED TO BE A MINOR INFORMALITY OR IRREGULARITY WHICH MAY PROPERLY BE WAIVED IN THE INTEREST OF THE GOVERNMENT. IT IS REPORTED THAT THE 30 DAYS ACCEPTANCE PERIOD WAS DELIBERATELY SET FORTH IN THE INVITATION AS FROM PAST EXPERIENCE IT WAS CONSIDERED THAT 30 DAYS WOULD BE NECESSARY TO EFFECT AN AWARD IN THE PURCHASE OF LARGE QUANTITIES OF PAPER OF THE TYPE INVOLVED.

UNDER THE SPECIFIC TERMS OF THE INVITATION, BIDDERS WERE REQUIRED TO ALLOW 30 DAYS FOR THE ACCEPTANCE OF THEIR BIDS AND IT IS OUR OPINION THAT TO ALLOW A BIDDER TO DECIDE AFTER THE OPENING OF THE BIDS WHETHER OR NOT HE WILL GRANT AN EXTENSION OF TIME FOR THE ACCEPTANCE OF HIS BID WOULD BE PREJUDICIAL TO OTHER BIDDERS WHO COMPLIED WITH THE PROVISION AND AGREED UNQUALIFIEDLY TO KEEP THEIR BIDS OPEN FOR 30 DAYS.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE BID OF STANFORD PAPER SALES CORPORATION IS ..END :