B-162430, OCT. 4, 1967

B-162430: Oct 4, 1967

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MAY HAVE TELEGRAPHIC MODIFICATION CONSIDERED SINCE USE OF THE TERM STANDARD TIME WITHOUT AN EXPLANATION TO BIDDERS THAT SUCH TIME WAS IN ACCORDANCE WITH UNIFORM TIME ACT WAS MISLEADING. MODIFICATION SUBMITTED 2 MINUTES AFTER OPENING COULD NOT HAVE BEEN BASED ON KNOWLEDGE OF OTHER BIDS AND THEREFORE. SECRETARY: REFERENCE IS MADE TO LETTER DATED SEPTEMBER 8. BIDS WERE REQUESTED FOR CONSTRUCTING AIRMEN DORMITORIES AT MINOT AIR FORCE BASE. THE GOVERNMENT ESTIMATE FOR THE TOTAL BASIC PRICE SCHEDULE WAS $407. THREE AMENDMENTS WERE ISSUED AND THE INVITATION PROVIDED THAT THE BIDS WERE TO BE OPENED AT 2:00 P.M. FIVE BIDS WERE RECEIVED AND ALL BIDS EXCEPT THAT OF MATTSON WERE MODIFIED BY TELEGRAPHIC MODIFICATION PRIOR TO 2:00 P.M.

B-162430, OCT. 4, 1967

BIDS - LATE - TELEGRAPHIC MODIFICATION DECISION TO SECY. OF THE ARMY IN CONNECTION WITH PROTEST OF MATTSON CONSTRUCTION CO. AGAINST REJECTION OF ITS BID BY ARMY ENGINEER DISTRICT, OMAHA, NEBRASKA FOR CONSTRUCTION OF AIRMEN DORMITORIES AT MINOT AIR FORCE BASE. A LOW BIDDER WHO, TWO MINUTES AFTER OPENING TRANSMITTED AMENDMENT ACKNOWLEDGEMENT AND REDUCED BID PRICE, ON BASIS THAT DESIGNATION "C.S.T.' IN INVITATION DID NOT MEAN CENTRAL DAYLIGHT SAVING TIME AS CONTENDED BY CONTRACTING OFFICER BECAUSE OF APPLICATION OF UNIFORM TIME ACT OF 1966, MAY HAVE TELEGRAPHIC MODIFICATION CONSIDERED SINCE USE OF THE TERM STANDARD TIME WITHOUT AN EXPLANATION TO BIDDERS THAT SUCH TIME WAS IN ACCORDANCE WITH UNIFORM TIME ACT WAS MISLEADING, CONFUSING, AND INEQUITABLE TO BIDDERS. SINCE NO REPRESENTATIVE OF PROTESTANT ATTENDED BID OPENING, MODIFICATION SUBMITTED 2 MINUTES AFTER OPENING COULD NOT HAVE BEEN BASED ON KNOWLEDGE OF OTHER BIDS AND THEREFORE, NO OTHER BIDDERS WOULD BE PREJUDICED BY CONSIDERATION OF LOW BID.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 8, 1967, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, FURNISHING A REPORT ON THE PROTEST OF THE MATTSON CONSTRUCTION COMPANY AGAINST THE REJECTION OF ITS BID UNDER INVITATION FOR BIDS NO. DACA-45-68-B-0001, ISSUED ON JULY 17, 1967, BY THE U.S. ARMY ENGINEER DISTRICT, OMAHA, NEBRASKA.

BIDS WERE REQUESTED FOR CONSTRUCTING AIRMEN DORMITORIES AT MINOT AIR FORCE BASE, CONSISTING OF TWO LUMP-SUM ITEMS AND CERTAIN ADDITIVES. THE GOVERNMENT ESTIMATE FOR THE TOTAL BASIC PRICE SCHEDULE WAS $407,400. THREE AMENDMENTS WERE ISSUED AND THE INVITATION PROVIDED THAT THE BIDS WERE TO BE OPENED AT 2:00 P.M., C.S.T., ON AUGUST 17, 1967. PRIOR TO 2:00 P.M., C.S.T., AUGUST 17, FIVE BIDS WERE RECEIVED AND ALL BIDS EXCEPT THAT OF MATTSON WERE MODIFIED BY TELEGRAPHIC MODIFICATION PRIOR TO 2:00 P.M., C.S.T. HOWEVER, THE BID OF MATTSON FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 0003. THE APPARENT LOW BIDDER WAS WARNER CONSTRUCTION COMPANY IN THE AMOUNT OF $428,100 FOR THE BASIC BID WITHOUT ADDITIVES. FUNDS TO THE EXTENT OF $420,168 WERE AVAILABLE FOR CONSIDERATION OF ACCEPTANCE OF THE APPARENT LOW BID AND, AT THE TIME OF BID OPENING, IT APPEARED THAT AWARD COULD NOT BE MADE TO THE LOW BIDDER, WARNER, BECAUSE ITS BID EXCEEDED THE AVAILABLE FUNDS. WE UNDERSTAND INFORMALLY THAT THE FUNDING PROBLEM HAS NOW BEEN ELIMINATED.

BY TELEGRAM DATED AUGUST 17, 1967, MATTSON ACKNOWLEDGED AMENDMENT NO. 0003 AND REDUCED ITS BASIC BID PRICE TO $415,850. THE TIME OF TRANSMISSION OF THE TELEGRAM WAS SHOWN AS 2:02 P.M., C.D.T., AND IT WAS RECEIVED IN THE DISTRICT OFFICE 29 MINUTES LATER. IT WAS DETERMINED THAT THE TELEGRAPHIC MODIFICATION WAS RECEIVED 31 MINUTES AFTER THE TIME SCHEDULED FOR OPENING OF THE BIDS AND THEREFORE WAS A LATE BID MODIFICATION WHICH, UNDER PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS (SEE ALSO ASPR 2-303 AND 2-305), COULD NOT BE CONSIDERED FOR AWARD. THE DETERMINATION WAS MADE ON THE BASIS THAT THE INVITATION WAS ISSUED IN ACCORDANCE WITH THE UNIFORM TIME ACT OF 1966, PUBLIC LAW 89-387, WHICH PROVIDES THAT THE VARIOUS TIME ZONES THROUGHOUT THE COUNTRY SHOULD BE DESIGNATED OR REMAIN AS "STANDARD TIME.'

IT IS CONTENDED BY THE ATTORNEYS FOR MATTSON THAT THERE WAS NO INDICATION IN THE INVITATION THAT THE DESIGNATION "C.S.T.' WOULD BE INTERPRETED TO MEAN CENTRAL DAYLIGHT SAVING TIME EVEN THOUGH AN EARLIER INVITATION OF THIS SAME CONTRACT WORK AS A PART OF A LARGER PROJECT USED THE DESIGNATION "C.D.S.T.' TO INDICATE DAYLIGHT SAVING TIME. IT IS ALSO CONTENDED THAT OTHER AGENCIES ARE REQUESTING BIDS ON A "C.D.S.T.' BASIS NOTWITHSTANDING THE PROVISIONS OF PUBLIC LAW 89-387, APPARENTLY BECAUSE IT IS CONSIDERED NECESSARY AND PRUDENT IN THE INTEREST OF CLARITY TO USE TERMINOLOGY WHICH BIDDERS UNDERSTAND. IT IS FURTHER CONTENDED THAT THE INVITATION LANGUAGE IS AMBIGUOUS AND SHOULD BE CONSTRUED AGAINST THE GOVERNMENT SINCE IT DRAFTED THE INVITATION.

PUBLIC LAW 89-387, EFFECTIVE APRIL 1, 1967, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"SEC. 3 (A) DURING THE PERIOD COMMENCING AT 2 O-CLOCK ANTEMERIDIAN ON THE LAST SUNDAY OF APRIL OF EACH YEAR AND ENDING AT 2 O-CLOCK ANTEMERIDIAN ON THE LAST SUNDAY OF OCTOBER OF EACH YEAR, THE STANDARD TIME OF EACH ZONE ESTABLISHED BY THE ACT OF MARCH 19, 1918 (15 U.S.C. 261-264), AS MODIFIED BY THE ACT OF MARCH 4, 1921 (15 U.S.C. 265), SHALL BE ADVANCED ONE HOUR AND SUCH TIME AS SO ADVANCED SHALL FOR THE PURPOSES OF SUCH ACT OF MARCH 19, 1918, AS SO MODIFIED, BE THE STANDARD TIME OF SUCH ZONE DURING SUCH PERIOD;

"IN ALL STATUTES, ORDERS, RULES, AND REGULATIONS RELATING TO THE TIME OF PERFORMANCE OF ANY ACT BY ANY OFFICER OR DEPARTMENT OF THE UNITED STATES, WHETHER IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCHES OF THE GOVERNMENT, OR RELATING TO THE TIME WITHIN WHICH ANY RIGHTS SHALL ACCRUE OR DETERMINE, OR WITHIN WHICH ANY ACT SHALL OR SHALL NOT BE PERFORMED BY ANY PERSON SUBJECT TO THE JURISDICTION OF THE UNITED STATES, IT SHALL BE UNDERSTOOD AND INTENDED THAT THE TIME SHALL INSOFAR AS PRACTICABLE (AS DETERMINED BY THE INTERSTATE COMMERCE COMMISSION) BE THE UNITED STATES STANDARD TIME OF THE ZONE WITHIN WHICH THE ACT IS TO BE PERFORMED.'

HAVING REGARD FOR THE ABOVE-QUOTED PROVISIONS OF LAW, IT SEEMS CLEAR THAT THERE IS NO LONGER A DISTINCTION TO BE MADE BETWEEN STANDARD TIME AND DAYLIGHT TIME. RATHER, WITHIN EACH TIME ZONE THERE IS, SINCE THE ENACTMENT OF PUBLIC LAW 89-387, ONLY THE PREESTABLISHED STANDARD TIME REGARDLESS OF THE FACT THAT DURING A CERTAIN PORTION OF THE YEAR STANDARD TIME IS ADVANCED 1 HOUR. HENCE, THE STANDARD TIME OF THE VARIOUS ZONES AND THE POPULAR REFERENCE TO "DAYLIGHT SAVING TIME" MUST BE CONSIDERED ONE AND THE SAME.

HOWEVER, WE DO NOT BELIEVE THAT A STRICT INTERPRETATION OF THE UNIFORM TIME ACT OF 1966 IS REQUIRED IN THE INSTANT CASE SO AS TO PRECLUDE THE CONSIDERATION OF MATTSON'S BID. AS STATED IN THE ADMINISTRATIVE REPORT TO OUR OFFICE, AN EARLIER INVITATION WHICH INCLUDED THE WORK COVERED BY THE SUBJECT INVITATION BUT SUBSEQUENTLY CANCELLED, DESIGNATED THE TIME FOR RECEIVING BIDS AS CENTRAL DAYLIGHT SAVING TIME EVEN THOUGH THE UNIFORM TIME ACT OF 1966 WAS FOR APPLICATION. SINCE THE DISTRICT OFFICE INVOLVED DIFFERENTIATED BETWEEN STANDARD TIME AND DAYLIGHT SAVING TIME IN THE PRIOR INVITATION, WE THINK IT WOULD BE UNREASONABLE TO HOLD THAT MATTSON SHOULD BE EXPECTED TO KNOW THAT THE REFERENCE IN THE INSTANT INVITATION TO CENTRAL STANDARD TIME WAS IN CONFORMANCE WITH THE UNIFORM TIME ACT OF 1966.

FURTHERMORE, IT APPEARS FROM THE RECORD THAT NOT ALL DISTRICT OFFICES OF THE CORPS OF ENGINEERS ARE ACTING IN UNIFORMITY REGARDING THE DESIGNATION OF TIME FOR OPENING OF BIDS. ALSO, IT APPEARS THAT OTHER GOVERNMENT AGENCIES STILL DIFFERENTIATE BETWEEN DAYLIGHT SAVING AND STANDARD TIME WITH RESPECT TO THE TIME OF OPENING OF BIDS.

IN ADDITION, WE NOTE THAT THE DEPARTMENT OF TRANSPORTATION, WHICH IS RESPONSIBLE FOR ADMINISTERING THE UNIFORM TIME ACT OF 1966, ISSUED AN INSTRUCTION ENTITLED "GUIDELINES FOR OBSERVANCE OF TIME UNDER PROVISIONS OF THE UNIFORM TIME ACT OF 1966.' THIS INSTRUCTION WHICH WAS DISTRIBUTED FOR THE GUIDANCE OF FEDERAL AGENCIES AS AN ATTACHMENT TO BUREAU OF THE BUDGET BULLETIN NO. 67-8 DATED APRIL 27, 1967, ADVISED GOVERNMENT DEPARTMENTS AND AGENCIES THAT IN ORDER TO AVOID CONFUSION DURING THE TRANSITION PERIOD THEY SHOULD CONTINUE TO EMPLOY FOR THE IMMEDIATE FUTURE THE TERM "DAYLIGHT SAVING TIME" TO DISTINGUISH ADVANCED TIME FROM NONADVANCED TIME. WE HAVE OBTAINED THE VIEWS OF THE DEPARTMENT OF TRANSPORTATION REGARDING THIS INSTRUCTION AND THEY REPORT THAT IN THE PAST MANY STATES DIVIDED BY TIME ZONE BOUNDARIES HAVE TRADITIONALLY OBSERVED YEAR-ROUND ADVANCED TIME IN ONE ZONE WHILE OBSERVING YEAR-ROUND NONADVANCED TIME IN THE OTHER ZONE. THIS HAS EFFECTIVELY PLACED THE ENTIRE STATE ON ONE TIME DESPITE THE ZONE DIVISION BOUNDARY. THE PROVISIONS OF THE UNIFORM TIME ACT OF 1966 NO LONGER PERMIT SUCH A DEVICE, AND THE EFFECT UPON SEVERAL OF THOSE STATES HAS BEEN ADVERSE. IN ORDER TO ELIMINATE THE RESULTING PROBLEMS, THE DEPARTMENT OF TRANSPORTATION HAS INITIATED ADMINISTRATIVE PROCEEDINGS TO DETERMINE WHETHER TIME ZONE BOUNDARIES SHOULD BE RELOCATED IN INDIANA, NORTH DAKOTA, KANSAS AND NEBRASKA. AND THE DEPARTMENT HAS DECIDED TO DEFER ANY CONSIDERATION OF ENFORCING THE ACT IN THE AFOREMENTIONED STATES UNTIL THESE PROCEEDINGS HAVE BEEN COMPLETED. IN ADDITION, ANY CONSIDERATION OF ENFORCEMENT ACTION IN KENTUCKY HAS BEEN DEFERRED UNTIL THE LEGISLATURE OF THAT STATE MEETS TO CONSIDER WHETHER IT WILL EXEMPT THE STATE.

UNTIL THE DEPARTMENT OF TRANSPORTATION MAKES A FINAL DETERMINATION IN THE PENDING ADMINISTRATIVE PROCEEDINGS, PORTIONS OF THESE STATES WILL BE OBSERVING NONADVANCED TIME DURING THE ADVANCED TIME PERIOD PRESCRIBED BY THE UNIFORM TIME ACT OF 1966. AS A CONSEQUENCE, TWO DIFFERENT TIMES ARE BEING OBSERVED IN A SINGLE TIME ZONE. IF BOTH TIMES WERE DESIGNATED STANDARD TIME, A GOOD DEAL OF CONFUSION WOULD SURELY RESULT.

FOR THE ABOVE STATED REASONS, THE DEPARTMENT OF TRANSPORTATION ISSUED THE ABOVE-MENTIONED INSTRUCTIONS ADVISING THE GOVERNMENT AGENCIES TO CONTINUE TO EMPLOY FOR THE "IMMEDIATE FUTURE" THE TERM DAYLIGHT SAVING TIME TO DISTINGUISH ADVANCED TIME FROM NONADVANCED TIME. THE DEPARTMENT ADVISES THAT THE PHRASE "FOR THE IMMEDIATE FUTURE" REFERS TO THE INDETERMINATE PERIOD DURING WHICH THE DEPARTMENT IS CONDUCTING ADMINISTRATIVE PROCEEDINGS TO SOLVE CERTAIN LOCAL PROBLEMS OCCASIONED BY THE APPLICATION OF THE UNIFORM TIME ACT OF 1966. SUCH PERIOD WILL BE AT LEAST 12 MONTHS IN DURATION. BUT IN ANY CASE, THE DEPARTMENT WILL ISSUE A FURTHER INSTRUCTION WHEN SUFFICIENT TIME UNIFORMITY IS ACHIEVED TO PERMIT THE USE OF THE SINGLE TERM,"STANDARD TIME.'

IN VIEW OF THE FOREGOING, WE THINK THAT THE USE OF THE TERM STANDARD TIME WITHOUT AN EXPLANATION TO THE BIDDERS THAT SUCH TIME WAS IN ACCORDANCE WITH THE UNIFORM TIME ACT OF 1966 WAS MISLEADING, CONFUSING, AND INEQUITABLE TO THE BIDDERS. INASMUCH AS IT IS REPORTED THAT NO REPRESENTATIVE OF MATTSON ATTENDED THE BID OPENING AND SINCE THE TELEGRAPHIC MODIFICATION OF ITS BID WAS TRANSMITTED 2 MINUTES AFTER THE TIME OF OPENING OF THE BIDS, IT DOES NOT APPEAR THAT THE MODIFICATION COULD HAVE BEEN BASED ON KNOWLEDGE OF THE OTHER BIDS. ACCORDINGLY, SINCE IT APPEARS THAT NO OTHER BIDDER WOULD BE PREJUDICED, THE BID OF MATTSON MAY BE CONSIDERED IN THE EVALUATION OF THE BIDS.

WE SUGGEST THAT, IN ORDER TO AVOID CONFUSION IN REGARD TO THE TIME OF BID OPENING IN CASES SUCH AS THIS, THAT IS, WHERE THE UNIFORM TIME ACT OF 1966 IS BEING FOLLOWED, APPROPRIATE STEPS SHOULD BE TAKEN PROMPTLY TO ADVISE BIDDERS THAT STANDARD TIME DURING THE PERIOD AFFECTED BY THE UNIFORM TIME ACT OF 1966 APPLIES TO THE ADVANCED TIME PERIOD.