B-154023, MAY 6, 1964

B-154023, MAY 6, 1964

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED APRIL 22, 1964, FROM THE ASSISTANT SECRETARY, REQUESTING ADVICE AS TO THE ACTION TO BE TAKEN ON THE REQUEST OF HAPCO, INC. (HIRSCH, ARKIN, PINEHERST, INC.), TO REJECT ALL BIDS RECEIVED UNDER AN INVITATION FOR BIDS ISSUED BY THE NATIONAL PARK SERVICE ON MARCH 4, 1964, FOR THE INSTALLATION OF MECHANICAL EQUIPMENT IN FEDERAL HALL NATIONAL MONUMENT AT WALL AND NASSAU STREETS, NEW YORK CITY.

THE INVITATION STATED THAT THE BID OPENING TIME WOULD BE 11 A.M., E.S.T., ON MARCH 20, 1964. BY AN ADDENDUM THE TIME OF OPENING WAS CHANGED TO MARCH 27, 1964, AT 11:30 A.M. THE PLACE OF OPENING WAS STATED TO BE THE OFFICE OF THE SUPERINTENDENT, NEW YORK CITY NATIONAL PARK SERVICE GROUP, STATUTE OF LIBERTY NATIONAL MONUMENT, LIBERTY ISLAND, NEW YORK.

AT 11 A.M., ON MARCH 27, 1964, AND AT THE APPOINTED PLACE, ONLY ONE BID HAD BEEN SUBMITTED AND MR. RICHARD HIRSCH, A REPRESENTATIVE OF THE BIDDER, HAPCO, INC., WAS PRESENT. THROUGH THE INADVERTENCE AND ERROR OF THE SUPERINTENDENT AND HIS STAFF, AND IN THE PRESENCE OF MR. HIRSCH, THE SOLE BID WAS OPENED AND READ. WITHIN A VERY BRIEF INTERVAL THE DOOR TO THE ROOM OPENED, MR. JOSEPH MELTZER, REPRESENTING MELTZER MECHANICAL CONTRACTORS, INC., APPEARED AND AFTER SOME DISCUSSION, IT WAS AGREED THAT THE FIRST BID HAD BEEN OPENED PREMATURELY AND THAT A BID FROM MELTZER WOULD NOT BE BARRED. MR. MELTZER THEN USED AN ADJOINING OFFICE TO MAKE TELEPHONE CALLS AND COMPLETE PREPARATION OF A BID WHICH HE SUBMITTED PRIOR TO 11:30 A.M., AND WHICH IS IN THE AMOUNT OF $76,600. THE BID OF HAPCO, INC., WAS IN THE AMOUNT OF $77,949.

THE QUESTION PRESENTED IS WHETHER THE SECOND BIDDER OBTAINED AN UNFAIR ADVANTAGE BY REASON OF THE FACT THAT HE (MR. MELTZER) MIGHT HAVE KNOWN THE AMOUNT BID BY HAPCO, INC. ACCOMPANYING THE LETTER OF APRIL 22, 1964, ARE STATEMENTS OF THE FACTS BY ALL THE WITNESSES TO THE OPENING INCLUDING MR. MELTZER, REPRESENTING THE LOW BIDDER, AND MR. HIRSCH, REPRESENTING THE OTHER BIDDER. STATEMENTS FROM SIX PEOPLE, EMPLOYED BY THE GOVERNMENT, AND A STATEMENT FROM A REPRESENTATIVE OF DODGE REPORTS ARE TO THE EFFECT THAT IT WAS NOT PROBABLE OR THAT IT WAS IMPOSSIBLE FOR MR. MELTZER TO HAVE KNOWN OF THE AMOUNT OF HAPCO, INC.'S BID PRIOR TO PREPARATION OF HIS BID EITHER BY SEEING THE AMOUNT ON THE EXECUTED BID FORM OR BY HEARING THE ANNOUNCEMENT OF THE AMOUNT UPON OPENING OF BIDS. COUPLED WITH THESE FACTS IS THE ADDED CIRCUMSTANCE THAT MR. HIRSCH EVEN THOUGH AWARE OF ALL THE FACTS DID NOT REGISTER ANY OBJECTION AT TIME OF OPENING AT 11:30 A.M.

ALTHOUGH THE ACTION OF THE GOVERNMENT PERSONNEL IN OPENING BIDS PRIOR TO THE TIME SCHEDULED WAS IMPROPER AND UNFORTUNATE, SUCH ACTION COULD NOT ESTABLISH AN EARLIER BID OPENING TIME OF 11 A.M. THE BID SUBMITTED BY MR. MELTZER WAS PROPERLY SUBMITTED. IF THE BIDS WERE REJECTED AND THE PROCUREMENT WAS READVERTISED IT WOULD GIVE HAPCO, INC., AN ADVANTAGE IN THAT THE OTHER BIDDER'S PRICE HAS BEEN DISCLOSED. THE RESOLUTION OF PROBLEMS THAT CONSTANTLY ARISE IN CONNECTION WITH FORMAL ADVERTISING MUST BE GOVERNED PRIMARILY BY TAKING THAT COURSE OF ACTION WHICH, UNDER THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE, WILL BEST PRESERVE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. THE PREPONDERANCE OF THE EVIDENCE IN THIS CASE IS TO THE EFFECT THAT THE SECOND BIDDER (MELTZER) DID NOT KNOW THE AMOUNT OF THE FIRST BID OPENED. FURTHERMORE, MELTZER WOULD BE SUBSTANTIALLY PREJUDICED BY THE REJECTION OF ALL BIDS AND A READVERTISEMENT. CONSEQUENTLY, WE AGREE WITH YOUR OPINION THAT AN AWARD OF THE CONTRACT TO MELTZER SHOULD BE MADE, IF ITS BID IS OTHERWISE ACCEPTABLE.