B-145961, JUNE 21, 1961, 40 COMP. GEN. 709

B-145961: Jun 21, 1961

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WHICH WAS ONE MINUTE AFTER THE LOW BID HAD BEEN HANDED TO HIM AND RECORDED AS RECEIVED. A PROVISION IN AN INVITATION DESIGNATING A PARTICULAR ROOM FOR THE RECEIPT OF BIDS SHOULD BE INTERPRETED AS A NOTIFICATION TO BIDDERS THAT THEY MAY INSURE CONSIDERATION OF THEIR BIDS BY SUBMITTING THEM TO THE DESIGNATED ROOM WITHIN THE SPECIFIED TIME RATHER THAN AS A REQUIREMENT PRECLUDING CONSIDERATION OF BIDS WHICH ARE RECEIVED AT ANY OTHER ROOM. YOU HAVE. WE HAVE ALSO RECEIVED A TELEGRAM AND LETTER. PROVIDED AT PARAGRAPH 2 THAT SEALED BIDS "WILL BE RECEIVED AT ROOM 300. BIDS SUBMITTED AT ROOM 300 WERE STAMPED UPON RECEIPT WITH A TIMER WHICH. IS NORMALLY CHECKED DAILY FOR ACCURACY. WE HAVE BEEN ADVISED THAT SOMETIME PRIOR TO THE SCHEDULED BID OPENING TIME INTERESTED PERSONS BEGAN TO ASSEMBLE IN ROOM 527B.

B-145961, JUNE 21, 1961, 40 COMP. GEN. 709

BIDS - LATE - TIME VARIANCES - BID OPENING ROOM V. BID SUBMISSION ROOM IN A MILITARY PROCUREMENT, THE TIME A BID OPENING OFFICER DECIDED TO OPEN BIDS, WHICH WAS ONE MINUTE AFTER THE LOW BID HAD BEEN HANDED TO HIM AND RECORDED AS RECEIVED, BASED ON A CLOCK WHICH VARIED SLIGHTLY FROM THE CORRECT TIME, MUST BE REGARDED AS PRIMA FACIE EVIDENCE OF THE CORRECT TIME UNDER SECTION 2-402.1 OF THE ASPR, WHICH CONFERS AUTHORITY ON THE BID OPENING OFFICER TO DECIDE WHEN THE TIME SET FOR OPENING HAS ARRIVED, IN THE ABSENCE OF EVIDENCE THAT THE TIME SET FOR THE RECEIPT OF BIDS HAD EXPIRED WHEN THE BID OPENING OFFICER ACCEPTED THE LOW BID AND, THEREFORE, SUCH LOW BID MAY BE CONSIDERED AS HAVING BEEN RECEIVED WITHIN THE TIME PRESCRIBED FOR THE RECEIPT OF BIDS. A PROVISION IN AN INVITATION DESIGNATING A PARTICULAR ROOM FOR THE RECEIPT OF BIDS SHOULD BE INTERPRETED AS A NOTIFICATION TO BIDDERS THAT THEY MAY INSURE CONSIDERATION OF THEIR BIDS BY SUBMITTING THEM TO THE DESIGNATED ROOM WITHIN THE SPECIFIED TIME RATHER THAN AS A REQUIREMENT PRECLUDING CONSIDERATION OF BIDS WHICH ARE RECEIVED AT ANY OTHER ROOM; THEREFORE, A BIDDER WHO IN ACCORDANCE WITH A NOTICE IN THE LOBBY OF A BUILDING SUBMITS HIS BID TO AN OFFICIAL IN THE BID OPENING ROOM RATHER THAN TAKING IT TO THE ROOM DESIGNATED IN THE INVITATION FOR THE RECEIPT OF BIDS HAS NOT THEREBY PRECLUDED CONSIDERATION OF HIS BID UNDER THE INVITATION.

TO MCNUTT, DUDLEY AND EASTERWOOD, JUNE 21, 1961:

BY LETTERS OF MAY 29, JUNE 2 AND JUNE 9, 1961, WITH ENCLOSURES, YOU HAVE, ON BEHALF OF THE ALCAN PACIFIC COMPANY, PROTESTED THE PROPOSED AWARD TO ANOTHER BIDDER UNDER INVITATION NO. ENG-04-203-61-280 ISSUED MARCH 16, 1961, FOR CERTAIN CONSTRUCTION IN CONNECTION WITH A CAPEHART HOUSING PROJECT AT FORT ORD, CALIFORNIA. WE HAVE ALSO RECEIVED A TELEGRAM AND LETTER, WITH ENCLOSURES, DATED MAY 25 FROM THE PROTESTING BIDDER.

THE INVITATION, AS FINALLY AMENDED, PROVIDED AT PARAGRAPH 2 THAT SEALED BIDS "WILL BE RECEIVED AT ROOM 300," OF A DESIGNATED BUILDING, UNTIL 11:00 A.M. ON MAY 17, 1961. A BULLETIN BOARD IN THE LOBBY OF THE BUILDING STATED THAT BIDS WOULD BE RECEIVED IN ROOM 300 AND THAT BID OPENING WOULD TAKE PLACE IN ROOM 527B. BIDS SUBMITTED AT ROOM 300 WERE STAMPED UPON RECEIPT WITH A TIMER WHICH, IT HAS BEEN REPORTED, IS NORMALLY CHECKED DAILY FOR ACCURACY.

WE HAVE BEEN ADVISED THAT SOMETIME PRIOR TO THE SCHEDULED BID OPENING TIME INTERESTED PERSONS BEGAN TO ASSEMBLE IN ROOM 527B. THE BID OPENING OFFICER ENTERED THE ROOM AT APPROXIMATELY 10:55 A.M., FOLLOWED IMMEDIATELY BY HIS COUNSEL. SOME MINUTES LATER AN INDIVIDUAL, LATER IDENTIFIED AS A REPRESENTATIVE OF THE J. W. BATESON CONSTRUCTION COMPANY, INCORPORATED, ENTERED THE ROOM AND ASKED HOW MUCH TIME WAS LEFT. THE BID OPENING OFFICER LOOKED AT THE CLOCK ON THE WALL AND ANSWERED,"A MINUTE AND A HALF.' THE SAID INDIVIDUAL THEN LEFT THE ROOM, REENTERED SHORTLY THEREAFTER AND HANDED THE J. W. BATESON BID TO THE BID OFFICER WHO LOOKED AT THE CLOCK ON THE WALL AND SAID TO HIS COUNSEL,"IT IS 10:59 A.M.' COUNSEL LOOKED AT THE CLOCK AND AT HIS WRIST WATCH AND CONCURRED AS TO THE TIME. THE BID OPENING OFFICER THEN WROTE ON THE SEALED ENVELOPE CONTAINING THE BID,"RECEIVED 10:59 A.M.' AND SIGNED HIS NAME.

WE HAVE BEEN FURTHER ADVISED THAT THE BID OPENING OFFICER THEN PROCEEDED TO OPEN THE BIDS. THE LOW BID, SUBMITTED BY J. W. BATESON, WAS FOUND TO BE APPROXIMATELY $58,000 LOWER THAN THE SECOND LOW BID OFFERED BY THE ALCAN PACIFIC COMPANY. THE CONTRACTING OFFICER'S PROPOSAL TO MAKE AWARD TO THE LOW BIDDER HAS BEEN PROTESTED ON THE GROUNDS THAT THE LOW BID WAS NOT DELIVERED TO ROOM 300 AS ,REQUIRED" BY THE TERMS OF THE INVITATION. FURTHER, IT IS CONTENDED THAT SINCE THE BID WAS NOT DELIVERED IN THAT ROOM PRIOR TO THE DEADLINE FOR THE SUBMISSION OF BIDS, IT SHOULD BE REGARDED AS A LATE BID SUBJECT TO THE RULES CONTROLLING THE DISPOSITION OF SUCH BIDS.

IT HAS ALSO BEEN URGED THAT THE CLOCK ON THE WALL OF THE BID OPENING ROOM AND THE TIME STAMP USED IN THE BID RECEIVING ROOM WERE NOT GENERALLY IN COORDINATION. A REPRESENTATIVE OF THE PROTESTING BIDDER ADVISES THAT ON JUNE 1 HE CHECKED SAID CLOCK AGAINST THE TIME STAMP AND FOUND A 2-MINUTE DIFFERENTIAL (ALTHOUGH WHICH WAS FASTER IS NOT INDICATED). ON THE BASIS OF THE FOREGOING IT IS URGED THAT AT THE TIME THE BID OPENING OFFICER ACCEPTED THE BATESON BID HE WAS IN NO POSITION TO KNOW WHETHER THE TIME FOR BID SUBMISSION HAD PASSED ON THE TIME STAMP IN THE BID RECEIVING ROOM.

THE GENERAL RULE IS, OF COURSE, THAT EXCEPT WHERE DUE SOLELY TO DELAYS IN THE MAIL FOR WHICH THE BIDDER IS NOT RESPONSIBLE, BIDS NOT RECEIVED BY THE TIME SET FOR OPENING SHALL NOT BE CONSIDERED FOR AWARD. SEE FOR EXAMPLE ARMED SERVICES PROCUREMENT REGULATION 2-303.5. SEE ALSO 37 COMP. GEN. 35. THE BASIC PURPOSE OF THAT RULE IS TO PREVENT OPPORTUNITIES FOR FRAUD OR UNDUE ADVANTAGE WHICH MIGHT BE OBTAINED IF BIDDERS COULD SUBMIT THEIR BIDS AFTER THE TIME SET FOR BID OPENING. THE REQUIREMENT SO FAR AS WE ARE CONCERNED, HOWEVER, IS THAT THE BID SHOULD BE IN THE HANDS OF THE BID OPENING OFFICER, OR OTHER GOVERNMENT REPRESENTATIVE AUTHORIZED TO RECEIVE IT, AT THE SCHEDULED TIME FOR OPENING.

QUESTIONS COULD IN MOST CASES BE RAISED WITH RESPECT TO THE ACCURACY OF A CLOCK USED FOR AN OFFICIAL PURPOSE. IT IS PRESUMABLY FOR THIS REASON THAT UNDER ASPR 2-402.1 THE BID OPENING OFFICER IS GIVEN THE AUTHORITY TO DECIDE WHEN THE TIME SET FOR OPENING HAS ARRIVED. IN THIS INSTANCE HE DECIDED THAT SUCH TIME HAD ARRIVED APPROXIMATELY ONE MINUTE AFTER THE J. W. BATESON BID HAD BEEN HANDED TO HIM. WHILE IT HAS BEEN DEMONSTRATED THAT THE CLOCK THE BID OPENING OFFICER USED AS THE STANDARD MAY HAVE VARIED FROM THE CORRECT TIME, IT HAS NOT BEEN PROVED, OR EVEN ALLEGED, THAT THE TIME SET FOR THE RECEIPT OF BIDS HAD EXPIRED WHEN THE BID OPENING OFFICER ACCEPTED THE J. W. BATESON BID. IN THE VERY LEAST, IN OUR VIEW, THE TIME USED BY THE BID OPENING OFFICER MUST BE REGARDED AS PRIMA FACIE EVIDENCE OF THE CORRECT TIME. B-137686, OCTOBER 24, 1958. THIS PRESUMPTION OF CORRECTNESS HAS CERTAINLY NOT BEEN OVERCOME IN THIS INSTANCE. WE HOLD, THEREFORE, THAT THE LOW BID WAS SUBMITTED WITHIN THE TIME SET FOR THE RECEIPT OF BIDS.

IT IS CONTENDED, ALSO, THAT THE INVITATION REQUIRED THAT BIDS BE SUBMITTED IN ROOM 300. THE PERTINENT LANGUAGE OF THE INVITATION IS THAT BIDS "WILL BE RECEIVED" IN THAT ROOM. WE CANNOT READ INTO THE PROVISION AN INTENT THAT THE SUBMISSION TO THE PROPER GOVERNMENT OFFICIAL, WITHIN THE PROPER TIME, OF A BID IN ANY OTHER PLACE HAS NO LEGAL EFFECT. RATHER, IT SEEMS MORE REASONABLE TO INTERPRET THE PROVISION AS NOTIFICATION TO ANY BIDDER THAT HE MAY INSURE CONSIDERATION OF HIS BID BY SUBMITTING IT AT THE DESIGNATED ROOM WITHIN THE DESIGNATED TIME.

IN VIEW OF THE FOREGOING, AND SINCE THERE HAS BEEN NO SHOWING THAT THE LOW BIDDER HAS RECEIVED ANY UNDUE ADVANTAGE, OR THAT THE OTHER BIDDERS HAVE BEEN UNDULY PREJUDICED, WE FIND NO LEGAL OBJECTION TO THE CONSIDERATION FOR AWARD OF THE J. W. BATESON BID.