B-153288, MAR. 19, 1964

B-153288: Mar 19, 1964

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BRUCE HOFFE: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14. WE HAVE HELD THAT THE FAILURE TO ENCLOSE A BID IN A SEALED ENVELOPE AS PROVIDED BY THE TERMS OF THE INVITATION IS A TECHNICALITY WHICH MAY BE WAIVED. YOUR CLAIM WAS THE NEXT HIGH BIDDER WITH A BID OF $8. SINCE THE DIFFERENCE BETWEEN THE TOTAL OF THE LOZANO AND HENDERSON BID ON ITEMS 2 AND 3 AND THE TOTAL BID OF YOUR CLIENT ON THOSE SAME ITEMS WAS $596 AND INASMUCH AS THE ARMED SERVICES PROCUREMENT REGULATION 10-102.5 (II). THE BUREAU OF YEARS AND DOCKS CONSIDERED THAT SUCH A RULE SHOULD HAVE EQUAL APPLICATION HERE AND THEREFORE TREATED THE LOZANO AND HENDERSON BID SECURITY AS ADEQUATE TO PROTECT THE INTEREST OF THE UNITED STATES.

B-153288, MAR. 19, 1964

TO R. BRUCE HOFFE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1964, PROTESTING FOR A AND L ENTERPRISES AGAINST THE AWARD MADE TO LOZANO AND HENDERSON FOR THE REMOVAL OF SURPLUS HOUSING AT THE NAVAL AIR STATION, ALAMEDA, CALIFORNIA.

SPECIFICALLY, YOU PROTESTED ON THREE GROUNDS. FIRST, YOU POINT OUT THAT ALTHOUGH THE INVITATION FOR BIDS PROVIDED FOR THE SUBMISSION OF SEALED BIDS, LOZANO AND HENDERSON SUBMITTED AN UNSEALED BID. SECOND, YOU POINT OUT THAT WHILE THE INVITATION REQUIRED THE BID TO BE ACCOMPANIED BY SECURITY IN AN AMOUNT NOT LESS THAN 20 PERCENT OF THE FULL AMOUNT OF THE BID SUBMITTED, LOZANO AND HENDERSON FURNISHED SECURITY IN A LESSER AMOUNT. THIRD, YOU PROTEST THAT THE BID OPENING OFFICER ON NOVEMBER 26, 1963, DELAYED THE OPENING OF BIDS UNTIL LOZANO AND HENDERSON SUBMITTED A BID AT 3:33 P.M., ALTHOUGH THE BID OPENING OFFICER HAD PREVIOUSLY INFORMALLY SET 3 P.M. AS THE OPENING TIME AS A RESULT OF EXECUTIVE ORDER NO. 11128, OF NOVEMBER 23, 1963, WHICH HAD DIRECTED IN GENERAL THAT, IN MOURNING FOR THE LATE PRESIDENT KENNEDY, GOVERNMENT OFFICES BE CLOSED ON NOVEMBER 25, 1963, WHICH DATE, AT 3 P.M., HAD BEEN SET FOR THE OPENING OF BIDS IN THE INVITATION FOR BIDS.

WITH REGARD TO THE SUBMISSION OF AN UNSEALED BID, WE HAVE HELD THAT THE FAILURE TO ENCLOSE A BID IN A SEALED ENVELOPE AS PROVIDED BY THE TERMS OF THE INVITATION IS A TECHNICALITY WHICH MAY BE WAIVED. B 35944, SEPTEMBER 4, 1943.

WITH REGARD TO THE BID SECURITY, LOZANO AND HENDERSON FURNISHED A $2,400 DEPOSIT TO ACCOMPANY ITS BID OF $8,424 ON ITEM 2 AND $8,220 ON ITEM 3, NOT HAVING BID ANYTHING FOR ITEM 1. YOUR CLAIM WAS THE NEXT HIGH BIDDER WITH A BID OF $8,024 ON EACH OF THREE ITEMS IN THE INVITATION. THE ONLY OTHER BIDDER PROPOSED TO CHARGE THE GOVERNMENT FOR THE REMOVAL OF THE PROPERTY. SINCE THE DIFFERENCE BETWEEN THE TOTAL OF THE LOZANO AND HENDERSON BID ON ITEMS 2 AND 3 AND THE TOTAL BID OF YOUR CLIENT ON THOSE SAME ITEMS WAS $596 AND INASMUCH AS THE ARMED SERVICES PROCUREMENT REGULATION 10-102.5 (II), DEALING WITH THE ADEQUACY OF BID GUARANTEES IN PROCUREMENT SITUATIONS, CONSIDERS AS ADEQUATE BID GUARANTEES WHICH THOUGH NOT MEETING THE BID SECURITY REQUIREMENTS OF THE INVITATION DO MEET OR EXCEED THE DIFFERENCE BETWEEN THE CLOSEST ACCEPTABLE BIDS, THE BUREAU OF YEARS AND DOCKS CONSIDERED THAT SUCH A RULE SHOULD HAVE EQUAL APPLICATION HERE AND THEREFORE TREATED THE LOZANO AND HENDERSON BID SECURITY AS ADEQUATE TO PROTECT THE INTEREST OF THE UNITED STATES.

THE GOVERNMENT IN THE CIRCUMSTANCES OF THIS CASE WAS ADEQUATELY PROTECTED BY THE DEPOSIT FURNISHED. THEREFORE, WE FIND NO REASON TO DISAGREE WITH THE DETERMINATION TO WAIVE THE DEFICIENCY IN THE AMOUNT OF THE DEPOSIT.

WITH REGARD TO THE DELAY IN THE BID OPENING TIME UNTIL LOZANO AND HENDERSON SUBMITTED ITS BID, IT IS REPORTED THAT THIS WAS DONE BECAUSE OF A TELEPHONE CALL FROM THE BIDDER AROUND 2:15 P.M. INDICATING THAT ITS REPRESENTATIVES WERE ON THE WAY TO THE BID OPENING AND MIGHT BE DELAYED IN ARRIVING ON TIME AS THEIR CAR HAD BROKEN DOWN AND BECAUSE AT THAT TIME THE BID OPENING OFFICER HAD RECEIVED ONLY ONE BID. IT APPEARS THAT BOTH THE ORIGINAL BID OPENING POSTPONEMENT BECAUSE OF THE ISSUANCE OF THE EXECUTIVE ORDER AND THE SUBSEQUENT POSTPONEMENT RESULTING FROM THE BIDDER'S TELEPHONE CALL WERE HANDLED BY THE BID OPENING OFFICER IN AN INFORMAL MANNER, CONVEYING INFORMATION OF SUCH POSTPONEMENTS ONLY TO THOSE PERSONS INQUIRING ABOUT THEM AND WITHOUT THE ISSUANCE OF ANY FORMAL AMENDMENTS FIXING NEW BID OPENING TIMES FOR THE INVITATION. THIS MAY HAVE BEEN TECHNICALLY IRREGULAR SINCE NO FORMAL AMENDMENTS TO THE INVITATION WERE ISSUED WITH REGARD TO EITHER OF THE POSTPONEMENTS REFERRED TO. HOWEVER, WE KNOW OF NO LEGAL REQUIREMENT THAT THERE BE AN OPENING OF BIDS WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT TO POSTPONE THE OPENING; THEREFORE, IF THE GOVERNMENT CHOSE IT COULD HAVE FOLLOWED THE FORMAL COURSE OF ISSUING A FORMAL AMENDMENT TO THE INVITATION POSTPONING THE OPENING TIME TO AS LATE A TIME AND DATE AS ITS INTERESTS MIGHT REQUIRE. WHILE IT DID NOT FOLLOW SUCH FORMAL PROCEDURES, APPARENTLY NO PERSONS OTHER THAN THOSE WHO HAD ACTUALLY SUBMITTED BIDS HAD ANY INTEREST IN ACQUIRING THE PROPERTY, AND IT SEEMS CLEAR THAT A FORMAL POSTPONEMENT WOULD NOT HAVE RESULTED IN ANY CHANGE IN THE NUMBER OF BIDS SUBMITTED NOR THE DOLLAR AMOUNTS OF THOSE BIDS. AT THE TIME THE BID OF LOZANO AND HENDERSON WAS RECEIVED, NO BIDS HAD BEEN OPENED AND THE BIDDER THEREFORE WOULD NOT HAVE HAD AN OPPORTUNITY TO KNOW THE AMOUNTS OF THE OTHER BIDS NOR WOULD IT HAVE ANY ASSURANCE THAT ITS BID PRICE ON ANY ITEM WOULD BE BETTER THAN THAT OF YOUR CLIENT WHICH HAND DELIVERED ITS BID TO THE BID OPENING ROOM PRIOR TO 3 P.M., OR THAT OF THE OTHER BIDDER, WHOSE BID WAS ON HAND BEFORE 2:15 P.M. WHILE LOZANO AND HENDERSON MAY HAVE BENEFITED BY HAVING ITS BID CONSIDERED TIMELY BECAUSE OF THE POSTPONEMENT IN OPENING, THERE IS NO EVIDENCE THAT THE SECURITY OF YOUR CLIENT'S BID WAS VIOLATED IN ANY WAY BEFORE BIDS WERE OPENED AND IT APPEARS THAT SUCH POSTPONEMENT WAS ALLOWED SOLELY IN THE GOVERNMENT'S INTEREST. WHILE WE DO NOT CONDONE THE INFORMAL MANNER IN WHICH NEW BID OPENING TIMES WERE SET, AND IN OUR OPINION THE PREFERABLE PROCEDURE WOULD HAVE BEEN TO POSTPONE THE BID OPENING UNTIL FORMAL NOTICE OF THE NEW OPENING TIME WAS SENT TO ALL PROSPECTIVE BIDDERS WELL IN ADVANCE OF ANY NEW OPENING TIME, IN VIEW OF THE PARTICULAR CIRCUMSTANCES OF THE CASE WE DO NOT FEEL OBLIGED TO COMPLY WITH YOUR REQUEST THAT THE AWARD MADE TO LOZANO AND HENDERSON BE SET ASIDE. AS A MATTER OF FACT, IF THE SUGGESTION THAT THE BID OF LOZANO AND HENDERSON SHOULD HAVE BEEN SET ASIDE BECAUSE OF THE INFORMAL EXTENSION OF BID OPENING TIME IS CARRIED TO ITS LOGICAL CONCLUSION, YOUR CLIENT'S BID, UPON WHICH AN AWARD WAS MADE TO IT FOR ITEM 1, WOULD ALSO HAVE TO BE SET ASIDE INASMUCH AS IT WAS ALSO FURNISHED AFTER THE INFORMAL SETTING OF A NEW BID OPENING TIME. AS TO THE ALTERNATIVE CLAIM THAT YOUR CLIENT BE ALLOWED TO RECOVER LOSS OF PROFITS, IT IS FUNDAMENTAL THAT THE GOVERNMENT WOULD NOT BE LIABLE FOR THE LOSS OF PROFITS RESULTING FROM AN AWARD TO ANOTHER BIDDER WHETHER THE AWARD WAS MADE PROPERLY OR NOT. SEE HEYER PRODUCTS COMPANY V. UNITED STATES, 140 F.SUPP. 409. ..END :