B-156410, MAY 14, 1965

B-156410, MAY 14, 1965

TO THE HONORABLE LAWSON B. KNOTT, JR., ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO THE LETTER DATED APRIL 14, 1965, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION, CONCERNING THE PROTEST OF FROESCHLE SONS, INC., AGAINST THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN ITSELF ON GENERAL SERVICES ADMINISTRATION PROJECT NO. 32039 FOR THE CONSTRUCTION OF A SOIL AND WATER CONSERVATION LABORATORY AT MANDAN, NORTH DAKOTA. AWARD HAS NOT YET BEEN MADE.

THE PROTEST CONCERNS THE DELAYED BID OPENING PROCEDURE PRESCRIBED BY THE GENERAL SERVICES PROCUREMENT REGULATION, AS PUBLISHED IN 41 CFR 5B-2.202- 70, 29 F.R. 15026-15027, WHICH REQUIRES THE LISTING OF SUBCONTRACTORS BY BIDDERS ON CONSTRUCTION PROJECTS.

A PRIMARY EFFECT OF THIS REGULATION IS TO AMEND THAT PORTION OF INSTRUCTION NO. 7 IN STANDARD FORM 22 UNDER WHICH A BID IS CLASSIFIED AS A LATE BID ONLY IF IT IS RECEIVED AFTER THE TIME SET FOR BID OPENING AND TO SUBSTITUTE A PROVISION THAT "BIDS, MODIFICATIONS, OR WITHDRAWALS RECEIVED AFTER THE TIME SET FOR RECEIPT OF BIDS ARE LATE AND MAY BE CONSIDERED ONLY IF THEIR RECEIPT MAY BE WAIVED UNDER INSTRUCTION NO. 7 OF INSTRUCTIONS TO BIDDERS (STANDARD FORM 22).' HOWEVER, THE REGULATION DOES NOT PURPORT TO MODIFY INSTRUCTIONS NOS. 5 (D) AND 8 OF STANDARD FORM 22 WHICH IS ALSO REQUIRED UNDER 41 CFR 1 16.401 (E) TO BE USED FOR ADVERTISED CONSTRUCTION CONTRACTS. THESE INSTRUCTIONS STATE THAT MODIFICATIONS AND WITHDRAWALS OF BIDS ARE PERMITTED IF RECEIVED PRIOR TO THE TIME SET FOR OPENING OF BIDS.

THE INVITATION FOR BIDS IN QUESTION SETS THE TIME FOR RECEIPT OF BIDS AS 2:00 P.M., MARCH 5, 1965, WITH THE TIME SET FOR BID OPENING AS 2:00 P.M., MARCH 9, 1965. IT CONTAINED STANDARD FORM 22 AS REQUIRED BY 41 CFR 1- 16.401 (E), WITH INSTRUCTION NO. 7 MODIFIED ACCORDING TO 41 CFR 5B-2.202- 70. SIX BIDS WERE OPENED ON MARCH 9, 1965. FROESCHLE SONS, INC.'S BID OF $500,000 WAS HIGH BID. HOWEVER, IT WAS FOUND THAT THIS FIRM HAD SUBMITTED, AFTER THE TIME SET FOR RECEIPT OF BIDS BUT BEFORE THE TIME SET FOR OPENING, A TELEGRAPH MODIFICATION WHICH WOULD HAVE REDUCED ITS BID TO $318,350, MAKING IT THE APPARENT LOW BIDDER IF SUCH MODIFICATION WERE CONSIDERED. YOUR ADMINISTRATION REPORTS THAT BECAUSE SUCH MODIFICATION WAS NOT RECEIVED UNTIL AFTER THE TIME SET FOR RECEIPT OF BIDS HAD EXPIRED, IT WAS TREATED AS A LATE MODIFICATION WHICH COULD NOT BE CONSIDERED. FORESCHLE SONS DISPUTES SUCH CONTENTION, POINTING OUT THAT UNDER INSTRUCTION NO. 5 (D) MODIFICATIONS OF BIDS ARE PERMITTED IF RECEIVED AT THE DESIGNATED OFFICE BY THE TIME SET FOR OPENING OF BIDS.

SINCE THE CIRCUMSTANCES APPEAR TO BE SUBSTANTIALLY IDENTICAL TO THOSE CONSIDERED IN OUR DECISION OF MAY 11, 1965, B-156331, TO YOU, IT IS OUR OPINION THAT FOR THE REASONS STATED THEREIN THE INVITATION IN QUESTION SHOULD BE CANCELLED.