B-143288, JUN. 30, 1960

B-143288: Jun 30, 1960

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO YOUR LETTER OF JUNE 28. THE ENVELOPE WAS TAKEN BY A CLERK-STENOGRAPHER REGULARLY EMPLOYED IN THE BID OPENING OFFICE WHO CARRIED THE ENVELOPE TO A MAILROOM A SHORT DISTANCE AWAY IN ORDER TO PLACE A TIME STAMP ON IT. AFTER THE ENVELOPE HAD BEEN STAMPED "7 JUN 1960 1101" THE ENVELOPE WAS RETURNED BY THE CLERK-STENOGRAPHER TO THE BID OPENING ROOM. PROMPTLY RETURNED IT TO THE REPRESENTATIVE OF STAPF DECLARING THE BID CONTAINED THEREIN WAS A LATE UNACCEPTABLE BID. WHILE THE REPRESENTATIVE OF STAPF WAS PRESENT. THE OTHER 2 BIDS RECEIVED WERE OPENED. THE BID PRICES AND BIDDERS WERE THEN REVEALED. THE LOW BID WAS SUBMITTED BY THE LEWIS CONSTRUCTION COMPANY AND IS IN THE AMOUNT OF $94.

B-143288, JUN. 30, 1960

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1960, REQUESTING A DECISION IN REGARD TO THE PROTEST BY THE JOHN STAPF CORPORATION AGAINST THE POSSIBLE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. IFB 36-600-60-517 ISSUED BY OLMSTED AIR FORCE BASE, PENNSYLVANIA.

THE INVITATION REQUESTED BIDS FOR CERTAIN CONSTRUCTION WORK TO BE PERFORMED IN CONNECTION WITH THE INSTALLATION OF A GUIDE-O-MATIC SYSTEM AT THE MARIETTA AIR FORCE STATION, MARIETTA, PENNSYLVANIA. THE INVITATION, ISSUED MAY 6, 1960, CONTAINED THE STATEMENT THAT SEALED BIDS WOULD BE RECEIVED UNTIL 10 A.M., E.S.T., JUNE 7, 1960.

IT APPEARS THAT AT ABOUT 11 A.M., E.D.S.T. (10 A.M., E.S.T.) ON JUNE 7, 1960, THE CONTRACTING OFFICER BEGAN TO ANNOUNCE, IN THE ROOM DESIGNATED FOR THE BID OPENING, THAT THE TIME HAD ARRIVED FOR THE OPENING OF BIDS. BEFORE THIS ANNOUNCEMENT COULD BE COMPLETED, A PERSON WHO SUBSEQUENTLY PROVED TO BE A REPRESENTATIVE OF THE JOHN STAPF CORPORATION ENTERED THE ROOM AND BEGAN TO WAVE AN ENVELOPE APPARENTLY CONTAINING A BID, IN AN OBVIOUS ATTEMPT TO ATTRACT THE ATTENTION OF THE REPRESENTATIVE OF THE CONTRACTING OFFICER IN CHARGE OF THE BID OPENING. THE ENVELOPE WAS TAKEN BY A CLERK-STENOGRAPHER REGULARLY EMPLOYED IN THE BID OPENING OFFICE WHO CARRIED THE ENVELOPE TO A MAILROOM A SHORT DISTANCE AWAY IN ORDER TO PLACE A TIME STAMP ON IT. AFTER THE ENVELOPE HAD BEEN STAMPED "7 JUN 1960 1101" THE ENVELOPE WAS RETURNED BY THE CLERK-STENOGRAPHER TO THE BID OPENING ROOM. THE OFFICER IN CHARGE OF OPENING THE BIDS, NOTING THE TIME STAMP ON THE ENVELOPE, PROMPTLY RETURNED IT TO THE REPRESENTATIVE OF STAPF DECLARING THE BID CONTAINED THEREIN WAS A LATE UNACCEPTABLE BID. THE REPRESENTATIVE OF STAPF DID NOT INSIST THAT THE BID BE RETAINED BY THE GOVERNMENT. WHILE THE REPRESENTATIVE OF STAPF WAS PRESENT, THE OTHER 2 BIDS RECEIVED WERE OPENED. THE BID PRICES AND BIDDERS WERE THEN REVEALED. THE LOW BID WAS SUBMITTED BY THE LEWIS CONSTRUCTION COMPANY AND IS IN THE AMOUNT OF $94,468.

THERE IS EVIDENCE INDICATING THAT SHORTLY AFTER THE BID OPENING ANOTHER CONTRACTOR'S REPRESENTATIVE WHO ATTENDED THE BID OPENING BUT WHO DID NOT SUBMIT A BID INQUIRED OF THE REPRESENTATIVE OF STAPF AS TO THE AMOUNT OF ITS BID. THE REPRESENTATIVE OF STAPF PRESUMABLY ADVISED HIM THAT HE HAD NO KNOWLEDGE OF THE BID PRICE BUT EVENTUALLY WAS PREVAILED UPON TO OPEN THE ENVELOPE HE CARRIED, REVEALING TO THE INQUIRER A BID PRICE IN THE PURPORTED AMOUNT OF $87,850. WHILE STAPF'S LETTER OF JUNE 10, 1960, STATES THAT THE AMOUNT OF THE BID WAS "DISCLOSED AT THE OPENING TO GOVERNMENT EMPLOYEES" IT IS ADMINISTRATIVELY REPORTED THAT NEITHER THE CONTRACTING OFFICER, NOR ANY OTHER GOVERNMENT EMPLOYEE THEN SAW, OR HAS SINCE SEEN, THE BID IN QUESTION.

THERE IS A CONFLICT OF OPINION IN THIS CASE AS TO WHETHER THE BID OF STAPF WAS ACTUALLY RECEIVED BY 10 A.M., E.S.T., JUNE 7, 1960, AS REQUIRED BY THE INVITATION, ALTHOUGH THE AVAILABLE EVIDENCE POINTS TO THE FACT THAT THE RECEIPT OF THE BID IN THE OFFICE DESIGNATED FOR RECEIPT OF THE BIDS WAS TIMELY. IT IS NOTED THAT CORRECTIVE ACTION HAS BEEN TAKEN SO THAT BIDS RECEIVED IN THE BID OPENING ROOM BY THE TIME LIMIT ALLOWED FOR SUBMISSION OF BIDS WILL BE CONSIDERED IN MAKING AWARD AND THAT THE BIDS NEED NOT BEAR A TIME STAMP SHOWING DATE OF RECEIPT IN ORDER TO RECEIVE CONSIDERATION.

ALTHOUGH STAPF URGES THAT ITS BID SHOULD BE ACCEPTED, OBVIOUSLY SUCH AN AWARD WOULD BE IMPROPER SINCE NO GOVERNMENT EMPLOYEE HAS EVER SEEN THE BID AND STAPF DID NOT INSIST THAT THE CONTRACTING OFFICER RETAIN THE BID NOR DID IT EVEN SUBMIT ITS BID WITH ITS PROTEST.

WITH REGARD TO THE QUESTION AS TO WHETHER ALL BIDS SHOULD BE REJECTED AND THE WORK READVERTISED, THE AUTHORITY OF THE PROCURING AGENCY IN THIS MATTER IS EXTREMELY BROAD. HOWEVER, IT WAS STATED IN MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS. 699, THAT "TO HAVE A SET OF BIDS DISCARDED AFTER THEY ARE OPENED AND EACH BIDDER HAS LEARNED HIS COMPETITOR'S PRICE IS A SERIOUS MATTER, AND IT SHOULD NOT BE PERMITTED EXCEPT FOR COGENT REASONS.' YOU FEEL THAT TO REJECT ALL BIDS AND READVERTISE WOULD CLEARLY BE DETRIMENTAL TO THOSE BIDDERS WHOSE PRICES HAVE NOW BEEN EXPOSED AND THAT THE BEST INTERESTS OF THE COMPETITIVE SYSTEM WOULD BE SERVED IF THE AWARD WERE MADE TO THE LOW BIDDER, LEWIS CONSTRUCTION COMPANY.

IN THE CIRCUMSTANCES, WE AGREE WITH YOUR PROPOSAL TO MAKE THE AWARD TO THE LOW BIDDER, LEWIS CONSTRUCTION COMPANY.