B-149878, NOV. 20, 1962

B-149878: Nov 20, 1962

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 31 AND SEPTEMBER 12. YOUR PROTEST IS MADE ON THE BASIS THAT. SINCE TWO BIDS INCLUDING YOURS WERE OPENED PRIOR TO THE TIME SPECIFIED FOR THE BID OPENING. THE PREMATURE OPENING IS THE OFFICIAL BID OPENING AND AWARD SHOULD BE MADE TO YOUR FIRM AS THE LOW RESPONSIVE BIDDER AT THAT TIME OR. 330.23 WAS SOME $1. THE CONTRACTING OFFICER'S STATEMENT IS HEREINAFTER QUOTED IN ITS ENTIRETY. IFB 33-657-62-295 WAS ISSUED 2 JULY 1962 WITH BID OPENING DATE OF 1 AUGUST 1962. THE BID OPENING DATE WAS REVISED TO 13 AUGUST BY AMENDMENT NO. 1 DATED 24 JULY 1962. THE FINAL REVISION TO THE BID OPENING DATE WAS ACCOMPLISHED BY TWX. THE TWO BIDDERS WERE PASTUSHIN INDUSTRIES.

B-149878, NOV. 20, 1962

TO PASTUSHIN INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 31 AND SEPTEMBER 12, 1962, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 33-657-62-295, DATED JULY 2,1962, ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, AIR FORCE SYSTEMS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO.

YOUR PROTEST IS MADE ON THE BASIS THAT, SINCE TWO BIDS INCLUDING YOURS WERE OPENED PRIOR TO THE TIME SPECIFIED FOR THE BID OPENING, THE PREMATURE OPENING IS THE OFFICIAL BID OPENING AND AWARD SHOULD BE MADE TO YOUR FIRM AS THE LOW RESPONSIVE BIDDER AT THAT TIME OR, IN THE ALTERNATIVE, THAT ALL BIDS SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED.

THE RECORD FURNISHED TO THIS OFFICE BY THE DEPARTMENT OF THE AIR FORCE INCLUDES, IN ADDITION TO OTHER PERTINENT CORRESPONDENCE AND DOCUMENTS, THE CONTRACTING OFFICER'S STATEMENT GIVING A COMPLETE CHRONOLOGICAL HISTORY OF THE FACTS AND CIRCUMSTANCES INVOLVED IN THIS PROCUREMENT TRANSACTION; A DETAILED DISCUSSION OF THE BASIS OF, AND THAT OFFICER'S VIEWS WITH RESPECT TO, YOUR PROTEST; AND HIS RESULTING CONCLUSIONS AND RECOMMENDATION. THE DEPARTMENT REPORTS THAT IT AGREES FULLY WITH THE POSITION OF THE CONTRACTING OFFICER, INCLUDING HIS RECOMMENDATION THAT YOUR PROTEST BE DENIED, AND THAT IT PROPOSES TO AWARD THE CONTRACT TO THE LOW BIDDER, AT THE TIME SPECIFIED FOR THE OPENING OF BIDS, WHOSE BID OF $703,330.23 WAS SOME $1,260,000 LESS THAN YOUR BID OF $1,965,074. IN ORDER THAT YOU MIGHT BE FULLY APPRISED OF THE ADMINISTRATIVE JUSTIFICATION FOR THE RECOMMENDED DENIAL OF YOUR PROTEST, THE CONTRACTING OFFICER'S STATEMENT IS HEREINAFTER QUOTED IN ITS ENTIRETY.

"CONTRACTING OFFICER'S STATEMENT

PROTEST AGAINST AWARD--- IFB 33-657-62-295

"I. FACTS AND CIRCUMSTANCES:

"A. IFB 33-657-62-295 WAS ISSUED 2 JULY 1962 WITH BID OPENING DATE OF 1 AUGUST 1962. THE BID OPENING DATE WAS REVISED TO 13 AUGUST BY AMENDMENT NO. 1 DATED 24 JULY 1962. AMENDMENT NO. 2, ISSUED 6 AUGUST 1962, FURTHER REVISED THE OPENING DATE TO 20 AUGUST 1962. THE FINAL REVISION TO THE BID OPENING DATE WAS ACCOMPLISHED BY TWX, DATED 16 AUGUST 1962, AND AMENDMENT NO. 3, DATED 17 AUGUST 1962, WHICH ESTABLISHED THE OPENING DATE AS 27 AUGUST 1962.

"B. ON 20 AUGUST 1962, THE OPENING CONTRACTING OFFICER AS A RESULT OF INADVERTENT ERROR OPENED THE TWO BIDS THAT HAD BEEN RECEIVED AS OF THAT DATE. THE TWO BIDDERS WERE PASTUSHIN INDUSTRIES, INC. AND AERONCA MANUFACTURING CORPORATION. THEIR BIDS AS OF 20 AUGUST 1962 DID NOT INCLUDE ANY RESPONSE TO AMENDMENT NO. 3. NOTE THAT THE LETTER OF TRANSMITTAL FROM PASTUSHIN INDUSTRIES, INC. WHICH ACKNOWLEDGES AMENDMENT NO. 3 IS DATED 22 AUGUST 1962. (SEE TAB F).

"C. ON 23 AUGUST, THE OFFICE OF THE PROCURING CONTRACTING OFFICER (ASWMMA) NOTIFIED THE TWO BIDDERS BY TELEPHONE OF THE INADVERTENT OPENING OF THEIR BIDS ON 20 AUGUST. THE CIRCUMSTANCES WERE FULLY EXPLAINED AND EACH BIDDER WAS NOTIFIED THAT IT COULD CONFIRM OR REVISE ITS BID PRIOR TO THE SCHEDULED OFFICIAL BID OPENING TO BE HELD ON 27 AUGUST. EACH WAS ALSO ADVISED TO ACKNOWLEDGE AMENDMENT NO. 3 TO THE IFB. THE AFORESAID TELEPHONE CONVERSATIONS WERE CONDUCTED WITH MR. D. E. WATSON, ASSISTANT TO THE PRESIDENT OF PASTUSHIN, AND MR. JOHN C. RODGERS, MANAGER OF CONTRACT ADMINISTRATION FOR AERONCA. (SEE TAB I).

"D. ON 24 AUGUST, MR. VICTOR PASTUSHIN, PRESIDENT OF PASTUSHIN INDUSTRIES, INC., MADE TELEPHONE CONTACT WITH THE OFFICE OF THE PROCURING CONTRACTING OFFICER TWICE. IN THE COURSE OF THE TWO TELEPHONE CONVERSATIONS THE OFFICE OF THE PROCURING CONTRACTING OFFICER AGAINSET FORTH THE PREVIOUSLY FURNISHED INFORMATION AS TO THE INADVERTENT EARLY OPENING OF THE TWO BIDS AND REITERATED THAT PASTUSHIN COULD EITHER CONFIRM OR REVISE ITS BID FOR CONSIDERATION AT THE OFFICIAL BID OPENING SCHEDULED FOR 27 AUGUST. IT APPEARS SIGNIFICANT TO NOTE THAT THE BIDDER DID NOT IN ANY OF THE TELEPHONE CONVERSATIONS INDICATE AN INTENTION TO SPECIFICALLY OBJECT OR TO PROTEST ON ANY PREMISE RELATED TO THE INADVERTENT EARLY BID OPENING. (SEE TAB I).

"E. ON 27 AUGUST, THE OFFICIAL BID OPENING WAS CONDUCTED. INCLUDED AMONG THE BID DOCUMENTS WHICH WERE OPENED AT THIS TIME WAS PASTUSHIN'S SEALED RESPONSE TO THE AMENDMENT NO. 3 TO THE IFB. THE BID ABSTRACT APPEARS UNDER TAB C. NO OBJECTION OR PROTEST WAS RECEIVED UP TO THIS DATE FROM EITHER OF THE TWO BIDDERS WHOSE BIDS HAD BEEN INADVERTENTLY OPENED ON 20 AUGUST.

"F. THE EARLIEST INFORMATION AS TO COMPLAINT OR PROTEST WAS FURNISHED BY MR. MCINTOSH, REPRESENTATIVE OF PASTUSHIN INDUSTRIES, INC., IN THE COURSE OF A TELEPHONE CALL TO THE PROCURING CONTRACTING OFFICER ON 30 AUGUST IN WHICH MR. MCINTOSH ADVISED THAT PASTUSHIN INTENDED TO PRESENT A FORMAL PROTEST AGAINST AWARD UNDER THE IFB. A WRITTEN STATEMENT OF PROTEST FROM PASTUSHIN WAS RECEIVED ON 4 SEPTEMBER. (SEE TAB B). OBJECTION HAS NOT BEEN RECEIVED FROM AERONCA.

"G. PRIOR TO THE 27 AUGUST 1962 BID OPENING, CONSIDERATION WAS GIVEN TO CANCELLATION AND READVERTISING AS A POSSIBLE COURSE OF ACTION THAT MAY HAVE BEEN APPROPRIATE UNDER THE CIRCUMSTANCES. THE FACTORS SET FORTH IN PARAGRAPH IIB2, BELOW, AND THE REQUIREMENTS OF ASPR 2-208 WERE CAREFULLY CONSIDERED, AND, IT WAS DETERMINED THAT CANCELLATION AND READVERTISING WAS NOT CLEARLY IN THE PUBLIC INTEREST.

"H. IT SHOULD BE NOTED THAT PASTUSHIN INDUSTRIES, INC., WAITED UNTIL ALL BIDS HAD BEEN EXPOSED AND HAD DETERMINED HIS POSITION IN THE BIDDING BEFORE SUBMITTING AN AFTER THE FACT PROTEST, ALTHOUGH HE HAD ADEQUATE OPPORTUNITY TO VOICE HIS PROTEST BEFORE THE GOVERNMENT PROCEEDED WITH THE OPENING OF BIDS ON 27 AUGUST 1962.

"II. DISCUSSION OF MERITS OF THE PROTEST:

"A. IT SHOULD BE NOTED THAT THE PROTESTANT'S LETTER PROTEST (TAB B) FAILS TO MAKE REFERENCE TO THE TELEPHONE CONVERSATION ON 23 AUGUST 1962 BETWEEN MR. WHATLEY OF THE PROCURING OFFICE AND MR. WATSON, ASSISTANT TO THE PRESIDENT, PASTUSHIN INDUSTRIES, INC., AT WHICH TIME MR. WATSON WAS ADVISED OF THE INADVERTENT BID OPENING AND OF THE RIGHT OF THE BIDDER TO REVISE ITS BID ON THE OFFICIAL BID OPENING DATE, 27 AUGUST 1962 (SEE TAB I). MR. PASTUSHIN, PRESIDENT OF PASTUSHIN INDUSTRIES, CALLED THE CONTRACTING OFFICER ON TWO OCCASIONS ON 24 AUGUST, AND ON EACH OCCASION WAS ADVISED FULLY OF THE CIRCUMSTANCES AND THE BIDDER'S RIGHT TO REVISE ITS BID ON THE 27TH (SEE TAB I).

"B. THE PROTESTANT RAISES TWO BASIS ARGUMENTS: (1) THAT THE BID OPENING ON 20 AUGUST 1962 WAS THE OFFICIAL BID OPENING AND THAT HE SHOULD HAVE BEEN CONSIDERED FOR AWARD AS THE LOW RESPONSIVE BIDDER, AND (2), AS AN ALTERNATE, THE IFB SHOULD HAVE BEEN CANCELLED AND READVERTISED. THESE ARGUMENTS ARE DISCUSSED INDIVIDUALLY BELOW:

"1. IN REGARD TO THE FIRST ARGUMENT, THE PROTESTANT STATES:"THE ACT OF THE GOVERNMENT IN PUBLICLY DECLARING THE SUBJECT IFB CLOSED FOR FURTHER BIDDING CONSTITUTED A CONSTRUCTIVE CHANGE UNDER THE IFB AND VOIDED IN EFFECT THE CONTENTS OF AMENDMENT NO. 3. THIS CONSTRUCTIVE CHANGE RE- ESTABLISHED THE OFFICIAL BID OPENING DATE AS 2 P.M. 20 AUGUST 1962 FOLLOWING WHICH TIME ANY BIDS RECEIVED SUBSEQUENTLY WOULD BE LATE BIDS AND THEREBY NON-RESPONSIVE.' IT IS THE CONTRACTING OFFICER'S CONTENTION THAT THE BID OPENING OFFICER HAD NO AUTHORITY TO ARBITRARILY CHANGE THE BID OPENING DATE AND THAT THE BID OPENING ON 20 AUGUST 1962 CONSTITUTED AN INADVERTENT ERROR RATHER THAN A CONSTRUCTIVE CHANGE UNDER THE IFB; CONSEQUENTLY, AMENDMENT NO. 3 WAS NOT VOIDED AND 27 AUGUST 1962 REMAINED THE OFFICIAL BID OPENING DATE. THIS OPINION IS BASED UPON THE FOLLOWING CONSIDERATIONS:

"A. THE COMPTROLLER GENERAL (COMP. GEN. NO. B-148972, 15 JUNE 1962) STATES:

"ASPR 2-402.1 WHICH AUTHORIZES THE OFFICIAL DESIGNATED AS THE BID OPENING OFFICER TO DECIDE AND ANNOUNCE WHEN THE TIME SET FOR BID OPENING HAS ARRIVED, DID NOT VEST IN HIM ANY AUTHORITY TO ARBITRARILY DETERMINE AN EARLIER BID OPENING TIME THAN THAT SPECIFIED IN AN INVITATION, AT LEAST NOT IN ANY CASE WHERE IT IS DETRIMENTAL TO A PROSPECTIVE BIDDER.'

"B. ASPR 1-300.1 STATES: "ALL PROCUREMENTS, WHETHER BY FORMAL ADVERTISING OR BY NEGOTIATION, SHALL BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT.'

"C. IN ADDITION TO THE TWO BIDDERS WHOSE BIDS WERE OPENED ON 20AUGUST 1962, FIFTY-FIVE (55) OTHER PROSPECTIVE BIDDERS WERE SOLICITATED FOR THIS PROCUREMENT.

"D. THE ACTION TAKEN BY THE BID OPENING OFFICER IN OPENING BIDS ON 20 AUGUST 1962 CANNOT BE CONSIDERED AS CONSTRUCTIVELY ESTABLISHING AN EARLIER DATE FOR BID OPENING THAN THAT SPECIFIED IN IFB 33-657-62-295, I.E., 27 AUGUST 1962, SINCE SUCH ACTION WOULD CLEARLY BE ARBITRARY AND DETRIMENTAL TO OTHER PROSPECTIVE BIDDERS BY BARRING THEIR RIGHTS TO HAVE THEIR BIDS CONSIDERED. FURTHER EVIDENCE OF THE ARBITRARY NATURE OF THE BID OPENING OFFICER'S ACTION, IS THAT SUCH ACTION, IF CONSIDERED AS CONSTITUTING THE OFFICIAL BID OPENING, WOULD HAVE RESTRICTED COMPETITION AND WOULD HAVE BEEN IN DIRECT CONTRADICTION TO THE REQUIREMENT OF ASPR 1-300.1 THAT ALL PROCUREMENT " . . . SHALL BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT.' SINCE THE BID OPENING OFFICER HAS NO AUTHORITY TO TAKE SUCH ARBITRARY ACTION, IT IS OBVIOUS THAT THE EARLY OPENING WAS NOTHING MORE THAN AN UNFORTUNATE MISTAKE.

"E. SINCE 20 AUGUST 1962 CANNOT BE CONSTRUED AS THE OFFICIAL OPENING, THE CONTRACTING OFFICER COULD NOT LEGALLY JUSTIFY AN AWARD ON THE BASIS OF CONSIDERING ONLY THE TWO BIDS OPENED ON THAT DATE.

"2. THE PROTESTANT'S SECOND ARGUMENT IS THAT ALL BIDS SHOULD BE REJECTED AS INVALID AND THE PROCUREMENT READVERTISED, IF 20 AUGUST 1962 IS NOT CONSTRUED TO BE THE OFFICIAL BID OPENING. THIS ACTION WAS CONSIDERED BY THE CONTRACTING OFFICER BEFORE THE 27 AUGUST OPENING AS WELL AS AFTER RECEIPT OF THE PROTEST, BUT WAS NOT FOLLOWED FOR THE FOLLOWING REASONS:

"A. THE INADVERTENT EARLY BID OPENING AND EXPOSURE OF PRICES MIGHT POSSIBLY HAVE PREJUDICED THE TWO BIDDERS. SUBSEQUENT DEVELOPMENTS INDICATE THERE WAS NO PREJUDICE (SEE PAR C2A). CANCELLING THE IFB AND READVERTISING COULD NOT POSSIBLY HAVE CURED WHATEVER ADVERSE EFFECT MAY HAVE RESULTED FROM THE EARLY OPENING AND EXPOSURE OF PRICES, SINCE, IF THE PROCUREMENT WERE TO BE READVERTISED, ALL TERMS AND CONDITIONS WOULD REMAIN THE SAME, WITH THE EXCEPTION OF THE TIME ALLOWED FOR INITIAL DELIVERIES.

"B. IT WAS THE CONTRACTING OFFICER'S OPINION THAT THE EARLIEST POSSIBLE BID OPENING WOULD BE IN THE BEST INTEREST OF THE TWO BIDDERS WHOSE BIDS HAD BEEN INADVERTENTLY OPENED ON 20 AUGUST. ALTHOUGH THESE BIDS WERE PUBLICLY DISCLOSED, THERE WAS A POSSIBILITY THAT OTHER PROSPECTIVE BIDDERS HAD NO KNOWLEDGE OF THESE CIRCUMSTANCES. BY CANCELLING THE IFB AND READVERTISING, COMPETITORS WOULD HAVE BEEN AFFORDED GREATER OPPORTUNITY TO LEARN OF THE INADVERTENT OPENING AND OF THE PRICES BID.

"C. THE NEED FOR THE EQUIPMENT BEING PROCURED DICTATED THAT THE AWARD BE PLACED AS SOON AS POSSIBLE. THE BID OPENING DATE HAD ALREADY BEEN EXTENDED FROM 1 AUGUST 1962 TO 27 AUGUST 1962, AND FURTHER DELAY WOULD JEOPARDIZE SUPPORT OF AIRCRAFT INSTALLATION REQUIREMENTS (SEE TAB G).

"D. IF THE PROCUREMENT WERE TO BE READVERTISED, IT WOULD BE NECESSARY TO REVISE THE REQUIRED DELIVERY SCHEDULE BY SHORTENING THE TIME FROM AWARD TO FIRST PRODUCTION DELIVERIES. SUCH ACTION COULD BE CONSIDERED PREJUDICIAL TO PROSPECTIVE BIDDERS OTHER THAN THE ONLY PREVIOUS MANUFACTURER OF THE EQUIPMENT BEING PROCURED, LOCKHEED AIRCRAFT CORP., BY INCREASING THE POSSIBILITY THAT SOME BIDDERS WOULD BE NON-RESPONSIVE DUE TO INABILITY TO MEET THE GOVERNMENT'S REQUIRED DELIVERY.

"E. ASPR 2-208 STATES IN PART: "INVITATIONS FOR BIDS SHOULD NOT BE CANCELED UNLESS CANCELLATION IS CLEARLY IN THE PUBLIC INTEREST.' THE CIRCUMSTANCES OF THIS PROCUREMENT DO NOT, IN THE OPINION OF THE CONTRACTING OFFICER, SUPPORT CANCELLATION OF THIS IFB ON THE BASIS THAT SUCH CANCELLATION IS CLEARLY IN THE PUBLIC INTEREST.

"F. THE CONTRACTING OFFICER, RECOGNIZING THAT THE ERROR COULD NOT BE RECTIFIED BY READVERTISING, ACTED IN THE BEST INTEREST OF THE BIDDERS WHOSE BIDS HAD BEEN EXPOSED BY AFFORDING THEM AN OPPORTUNITY TO REVISE THEIR BIDS ON THE 27 AUGUST BID OPENING DATE, AND ALSO ACTED IN THE BEST INTEREST OF THE GOVERNMENT BY OBTAINING MAXIMUM COMPETITION AND AVOIDING THE UNWARRANTED DELAY THAT WOULD HAVE BEEN CAUSED BY READVERTISING.

"C. SPECIFIC POINTS CITED BY THE PROTESTANT TO SUPPORT HIS CONTENTION THAT ALL BIDS SHOULD BE REJECTED AS INVALID AND THE PROCUREMENT SHOULD BE READVERTISED ARE DISCUSSED BELOW:

"1. FAILURE TO SAFEGUARD BIDS WAS A VIOLATION OF ASPR 2-401. THIS IS TRUE; HOWEVER, NO SYSTEM, HOWEVER PERFECT, IS IMMUNE FROM HUMAN ERROR. THE EFFECTIVENESS OF THE ESTABLISHED SYSTEM IN SAFEGUARDING BIDS IS ATTESTED TO BY THE RARITY OF ERRORS SIMILAR TO THAT MADE IN CONNECTION WITH THIS PROCUREMENT. IT IS THE CONTRACTING OFFICER'S OPINION THAT THE INTERESTS OF OTHER BIDDERS AND OF THE GOVERNMENT SHOULD NOT BE PREJUDICED BECAUSE OF AN ERROR OF THIS NATURE. FURTHERMORE, THERE IS NO REQUIREMENT TO CANCEL ALL BIDS WHEN, AS IN THIS CASE, THERE IS AN UNINTENTIONAL VIOLATION OF THE REGULATION. "2. POINTS 2, 3, AND 5, THAT THE PREMATURE OPENING RESULTED IN PREJUDICE TO THE PROTESTANT AND THAT THE LOWER BIDS WERE NOT PREPARED INDEPENDENTLY UNDER THE CONCEPT OF FREE AND FULL COMPETITION DO NOT APPEAR TO BE SUPPORTABLE FOR THE FOLLOWING REASONS:

"A. PASTUSHIN INDUSTRIES WAS NOT IN FACT PREJUDICED BY REASON OF THE INADVERTENT EARLY BID OPENING. A REVIEW OF THE BID ABSTRACT INDICATES THAT OTHER BIDDERS WERE NOT INFLUENCED BY DISCLOSURE OF THE PROTESTANT'S BID IN VIEW OF THE PRICE DIFFERENTIAL IN EXCESS OF $1,260,000 BETWEEN THE LOWEST BID AND THE BID OF THE PROTESTANT. ALSO, THE NEXT LOW BID IS MORE THAN $807,000 LOWER THAN THAT SUBMITTED BY PASTUSHIN INDUSTRIES, INC. IF THE PROTESTANT'S BID HAD BEEN USED AS A BASIS FOR SUBMITTING A LOWER COMPETITIVE BID, THE DISPARITY BETWEEN BIDS COULD NOT REASONABLY BE EXPECTED TO BE AS GREAT AS THAT INDICATED BY THE FACTS.

"B. ONLY TWO BIDS WERE OPENED ON 20 AUGUST 1962. FIFTY-SEVEN (57) PROSPECTIVE BIDDERS HAD BEEN SOLICITED AND, OF THESE, FIVE (5) HAD ATTENDED THE BIDDER'S CONFERENCE. THEREFORE, SUFFICIENT INTEREST HAD BEEN EXPRESSED IN THIS PROCUREMENT TO INSURE RECEIPT OF ADDITIONAL BIDS AND FREE AND FULL COMPETITION AT THE TIME OF THE 27 AUGUST BID OPENING. THE FACT THAT FOUR BIDS WERE RECEIVED WHICH WERE LOWER THAN PASTUSHIN'S AND THAT THESE BIDS DIFFERED SUBSTANTIALLY CONCLUSIVELY ESTABLISHES THAT THE BIDS WERE INDEPENDENTLY ARRIVED AT IN OPEN COMPETITION.

"C. IN POINT 4, THE PROTESTANT CONTENDS THAT BIDS SHOULD BE DEEMED INVALID DUE TO VIOLATION OF 10 U.S.C. 2305 IN THAT THEY WERE NOT PUBLICLY OPENED AT THE TIME AND PLACE STATED IN THE IFB. IN THIS CONNECTION IT SHOULD BE NOTED:

"/1) THAT THE OFFICIAL PUBLIC OPENING WAS ON 27 AUGUST 1962, AT THE TIME AND PLACE SPECIFIED IN THE IFB. AT THAT TIME THE BIDS WERE OPENED, INCLUDING PASTUSHIN'S SEALED CONFIRMATION OF HIS PREVIOUS BID AND RESPONSE TO AMENDMENT NO. 3. SINCE PASTUSHIN HAD NOT PREVIOUSLY ACKNOWLEDGED AMENDMENT NO. 3, HIS EARLIER BID WAS NON-RESPONSIVE AND DISREGARDED. THE ONLY RESPONSIVE BID SUBMITTED BY PASTUSHIN WAS PUBLICLY OPENED WITH ALL OTHER BIDS AT THE TIME AND PLACE SPECIFIED IN THE IFB AS AMENDED. THEREFORE, THERE WAS NO VIOLATION OF THE STATUTORY REQUIREMENT.

"/2) AT BEST IT MIGHT BE ARGUED THAT THE EARLIER OPENING OF TWO NON- RESPONSIVE BIDS (NEITHER BIDDER HAD ACKNOWLEDGED AMENDMENT NO. 3) BY MISTAKE MAY HAVE TECHNICALLY CONSTITUTED A VIOLATION SUFFICIENT TO SUBJECT THE ENTIRE TRANSACTION TO CLOSE SCRUTINY. IT IS RECOGNIZED THAT IN 34 COMP. GEN. 395 IT WAS HELD THAT WHEN ALL BIDS ARE NOT PUBLICLY OPENED AT THE PROPER TIME AND PLACE "ORDINARILY" THE BIDS SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED. HOWEVER, IN THAT CASE THE COMPTROLLER GENERAL ASCERTAINED THAT OTHER BIDDERS DID NOT OBTAIN AN ADVANTAGE BY REASON OF THE GOVERNMENT'S ERROR AND THEREFORE CONCLUDED THAT THERE WAS NO SOUND LEGAL BASIS FOR CANCELING AND READVERTISING. THE CONCLUSION CITED IN THE REFERENCED CASE IS APPLICABLE TO ISSUES UNDER CONSIDERATION SINCE THE PRESENT FACTS AND CIRCUMSTANCES SUPPORT A DETERMINATION THAT OTHER BIDDERS DID NOT OBTAIN ANY ADVANTAGE OVER PASTUSHIN BY REASON OF THE GOVERNMENT'S ERROR IN ADVERTENTLY OPENING PASTUSHIN'S BID ON 20 AUGUST 1962.

"III. CONCLUSIONS:

"AFTER CONSIDERATION OF ALL ASPECTS OF THIS PROCUREMENT, THE CONTRACTING OFFICER CONCLUDES:

"A. THAT THE INADVERTENT OPENING ON 20 AUGUST 1962 DID NOT CONSTITUTE THE OFFICIAL BID OPENING AND THAT PASTUSHIN INDUSTRIES, INC., CANNOT BE CONSIDERED FOR AWARD OF THIS PROCUREMENT ON THE BASIS OF HIS BID OF 20 AUGUST.

"B. THAT PASTUSHIN WAS NOT PREJUDICED BY THE ACTION TAKEN, AND NO VALID REASON EXISTS FOR READVERTISING SINCE SUCH ACTION WOULD NOT CHANGE THE FACT THAT THE PROTESTANT'S BID HAD BEEN EXPOSED. IN ADDITION READVERTISING WOULD ONLY DELAY AN URGENT PROCUREMENT AND WOULD CLEARLY BE ADVERSE TO THE PUBLIC INTEREST.

"C. THAT THE ACTION TAKEN BY PROCEEDING WITH THE OFFICIAL BID OPENING WAS PROPER, IN THE BEST INTEREST OF THE GOVERNMENT AND RESULTED IN OBTAINING COMPETITION TO THE MAXIMUM PRACTICABLE EXTENT.

"IV. RECOMMENDATION:

"IT IS THE RECOMMENDATION OF THE CONTRACTING OFFICER THAT THE PROTEST OF PASTUSHIN INDUSTRIES, INC., BE DENIED.'

WHILE THE ACTION OF THE AIR FORCE PERSONNEL IN OPENING BIDS PRIOR TO THE TIME SCHEDULED WAS IMPROPER AND UNFORTUNATE, WE CONCUR IN THE VIEWS OF THE CONTRACTING OFFICER THAT SUCH ACTION DID NOT AND COULD NOT ESTABLISH AN EARLIER BID OPENING TIME THAN THAT SPECIFIED IN THE INVITATION AND THE AMENDMENTS THERETO. ALSO, UNDER THE REPORTED FACTS AND CIRCUMSTANCES, WE FIND NO PROPER LEGAL BASIS FOR REQUIRING THE REJECTION OF ALL BIDS OR FOR OBJECTION TO THE AWARD ADMINISTRATIVELY PROPOSED. 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. IF, IN FACT, YOU WERE SUBSTANTIALLY PREJUDICED BY THE PREMATURE OPENING OF BIDS THERE WOULD BE MORE BASIS FOR REQUIRING THAT ALL BIDS BE REJECTED AND THE PROCUREMENT READVERTISED. THE EVIDENCE OF RECORD, HOWEVER, CLEARLY ESTABLISHES THAT SUCH WAS NOT THE CASE. NOT ONLY WERE YOU AFFORDED AMPLE OPPORTUNITY, IF SO DESIRED, TO REVISE THE AMOUNT OF YOUR BID PRIOR TO THE SPECIFIED TIME FOR BID OPENING BUT, ALSO, IN VIEW OF THE PRICE DIFFERENTIAL BETWEEN YOUR BID AND THE FOUR LOWER BIDS RECEIVED, RANGING FROM OVER $350,000 TO $1,260,000, THERE CAN BE NO REASONABLE DOUBT THAT THESE LOWER BIDS WERE NOT BASED ON THE AMOUNT QUOTED BY YOU BUT WERE INDEPENDENTLY PREPARED. FOLLOWS THAT YOU ARE IN THE SAME RELATIVE POSITION, FIFTH LOW BIDDER UNDER THE INVITATION, AS YOU WOULD HAVE BEEN HAD THE ERROR IN THE OPENING OF BIDS NOT OCCURRED. UNDER SUCH CIRCUMSTANCES, THE REJECTION OF ALL BIDS AND REPROCUREMENT WOULD PREJUDICE THE LOW BIDDER BY ALLOWING YOU ANOTHER OPPORTUNITY, BY REASON OF THE GOVERNMENT'S FORTUITOUS ERROR, TO COMPETE FOR THE AWARD IN THE LIGHT OF HIS DISCLOSED PRICE. PROTECTION OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM DISCOURAGES, RATHER THAN FAVORS, SUCH A RESULT. ACCORDINGLY, YOUR PROTEST MUST BE AND IS DENIED.