B-164073, APR. 24, 1968

B-164073, APR. 24, 1968

TO ADMIRAL SMITH:

REFERENCE IS MADE TO LETTER OF APRIL 16, 1968, FROM THE ACTING COMPTROLLER, FORWARDING FOR CONSIDERATION THE PROTEST OF THE CALONJE PRODUCTS CORPORATION AGAINST THE REJECTION OF THE BID IT SUBMITTED FOR INVITATION FOR BIDS 08-57-68.

THE INVITATION PROVIDED FOR THE RECEIPT OF BIDS UNTIL 2 P.M. ON FEBRUARY 21, 1968.

A REGISTER OF BIDDERS WAS TIME-STAMPED 2:03 P.M. BY THE CLOCK IN THE COAST GUARD COMPTROLLER'S OFFICE. SIMULTANEOUS WITH THE TIME STAMPING, EVERYONE IN THE OFFICE PROCEEDED TO MOVE TO ANOTHER OFFICE WHICH HAD MORE ROOM TO ACCOMMODATE THE PEOPLE WHO WERE PRESENT TO ATTEND THE BID OPENING. WHILE THIS WAS TAKING PLACE, A REPRESENTATIVE FROM CALONJE PRODUCTS ENTERED THE COMPTROLLER'S OFFICE AND SUBMITTED A BID. HE WAS ADVISED THAT THE TIME FOR RECEIPT OF BIDS HAD PASSED. AS HE BEGAN TO PROTEST, A PIECE OF PAPER WAS INSERTED INTO THE TIME CLOCK WHICH STAMPED 2:04 P.M.

THE ONLY OTHER BID WHICH WAS RECEIVED WAS OPENED AND READ. AFTER THE BID OPENING, A TELEPHONE CALL WAS MADE TO TIME SERVICE. THE INFORMATION FURNISHED BY THE SERVICE INDICATED THAT THE TIME CLOCK IN THE COMPTROLLER'S OFFICE WAS 3 MINUTES FAST. THUS, WHEN THE REGISTER OF BIDDERS WAS TIME-STAMPED 2:03 P.M., IT WAS ACTUALLY 2 P.M. SINCE THE BID FROM CALONJE PRODUCTS WAS NOT PRESENTED UNTIL AFTER THE REGISTER OF BIDDERS WAS TIME-STAMPED, IT WAS SUBMITTED AFTER THE BIDDING DEADLINE SPECIFIED IN THE INVITATION AND WAS THEREFORE A LATE BID.

THE INVITATION INSTRUCTIONS AND CONDITIONS PROVIDE FOR THE CONSIDERATION OF LATE BIDS SUBMITTED BY MAIL OR TELEGRAM IN CERTAIN CIRCUMSTANCES. HOWEVER, THERE ARE NO PROVISIONS IN THE INSTRUCTIONS AND CONDITIONS CONCERNING THE CONSIDERATION OF LATE BIDS SUBMITTED BY OTHER THAN MAIL OR TELEGRAM. BOTH FPR SEC. 1-2.303-5 AND ASPR 2-303.5 PROVIDE THAT A LATE HAND-CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD. BOTH FPR SEC. 1-2.303-1 AND ASPR 2- 303.1 DEFINE A LATE BID AS ONE RECEIVED AFTER THE EXACT TIME SET IN THE INVITATION FOR BIDS FOR OPENING OF BIDS. FURTHER, IN B-130889, MARCH 26, 1957, AND IN B-137550, DECEMBER 18, 1958, THERE WERE CONSIDERED SITUATIONS WHERE BIDDERS' REPRESENTATIVES HAND-DELIVERED BIDS AFTER THE TIME SET FOR THE FINAL RECEIPT OF BIDS BUT BEFORE ANY BIDS WERE OPENED. IN THE FIRST- CITED CASE, THE BID WAS DELIVERED 2 MINUTES AFTER THE DEADLINE. IN THE SECOND CASE, IT WAS DELIVERED 5 MINUTES AFTER THE DEADLINE. THE TIME IN THIS CASE MAY BE LESS THAN THE TIME IN EITHER CASE, BUT THAT FACT IS NOT SIGNIFICANT. IN B-137550 THE FOLLOWING WAS QUOTED WITH APPROVAL FROM B- 130889:

"-IT HAS BEEN CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. THE PURPOSE OF THE REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

"-UNDER THE EXPRESS TERMS OF THE INVITATION, HAND CARRIED BIDS WERE REQUIRED TO BE SUBMITTED PRIOR TO 10:00 A.M. YOUR BID WAS NOT SUBMITTED PRIOR TO THE TIME SPECIFIED. YOUR LACK OF KNOWLEDGE OF THE OTHER BIDS AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT FOR CONSIDERATION. THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT SUCH CONSIDERATIONS TO AFFECT OR ALTER THE FIXED AND EXACT TIME CLEARLY STATED IN AN INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE SYSTEM. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETRATION OF FRAUDS. "

IN VIEW OF THE FOREGOING, THE LATE BID SUBMITTED BY THE CALONJE PRODUCTS CORPORATION MUST BE REGARDED AS AN UNACCEPTABLE LATE BID AND THUS INELIGIBLE FOR AWARD.

THE ENCLOSURES ACCOMPANYING THE APRIL 16 LETTER ARE RETURNED AS REQUESTED.