B-164602, JUL. 11, 1968

B-164602: Jul 11, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE BASIS FOR YOUR PROTEST IS THAT THE HAND-CARRIED NATIONWIDE BID ON IFB 180 WAS NOT RECEIVED AT THE PLACE DESIGNATED FOR THE OPENING OF BIDS UNTIL AFTER THE TIME SET FOR BID OPENING AND THAT IT THEREFORE SHOULD BE REJECTED. BIDS WERE TO BE OPENED AT 11:00 A.M. WHEN THE BIDS WERE OPENED AT THE DESIGNATED TIME AND PLACE IT WAS DETERMINED THAT THE BID SUBMITTED BY NATIONWIDE. FOR KITCHEN POLICE SERVICES FOR WHICH BIDS WERE TO BE OPENED AT 2:30 P.M. WHERE AN ENVELOPE MARKED IFB 225 BUT CONTAINING THE BID FORMS FOR IFB 180 WAS LOCATED AND RETURNED TO THE BID OPENING ROOM WHERE IT WAS OPENED. THE BID OF NATIONWIDE WAS DETERMINED TO BE THE LOWEST RECEIVED. YOU MAINTAIN THAT THE NATIONWIDE BID ON IFB 180 WAS LATE BECAUSE IT WAS NOT IN THE BID OPENING ROOM AT THE EXACT TIME SET FOR BID OPENING AND THAT ITS LATE RECEIPT WAS CAUSED BY CONDITIONS FOR WHICH THE BIDDER WAS RESPONSIBLE.

B-164602, JUL. 11, 1968

TO CONTINENTAL SERVICE COMPANY:

YOUR LETTER OF MAY 22, 1968, TO THE ABERDEEN PROVING GROUND PROTESTING AGAINST AWARD TO NATIONWIDE BUILDING MAINTENANCE, INC. (NATIONWIDE) UNDER INVITATION FOR BIDS (IFB) DAAD05-68-B-0180 (HEREAFTER IFB 180), HAS BEEN REFERRED TO OUR OFFICE FOR CONSIDERATION. THE BASIS FOR YOUR PROTEST IS THAT THE HAND-CARRIED NATIONWIDE BID ON IFB 180 WAS NOT RECEIVED AT THE PLACE DESIGNATED FOR THE OPENING OF BIDS UNTIL AFTER THE TIME SET FOR BID OPENING AND THAT IT THEREFORE SHOULD BE REJECTED.

IFB 180 REQUESTED BIDS FOR THE OPERATION OF HEATING PLANTS IN VARIOUS BUILDINGS AT ABERDEEN PROVING GROUND FOR FISCAL YEAR 1969. BIDS WERE TO BE OPENED AT 11:00 A.M., E.D.S.T. MAY 21, 1968. WHEN THE BIDS WERE OPENED AT THE DESIGNATED TIME AND PLACE IT WAS DETERMINED THAT THE BID SUBMITTED BY NATIONWIDE, ALTHOUGH SEALED IN AN ENVELOPE BEARING THE CORRECT INVITATION NUMBER, PERTAINED TO ANOTHER PROCUREMENT IDENTIFIED AS IFB DAAD05-68-B-0225 (HEREAFTER IFB 225), FOR KITCHEN POLICE SERVICES FOR WHICH BIDS WERE TO BE OPENED AT 2:30 P.M. THE SAME DAY. A REPRESENTATIVE OF NATIONWIDE ATTENDING THE BID OPENING ADVISED THE BID OPENING OFFICER THAT BOTH BIDS HAD BEEN HAND CARRIED TO THE PROCUREMENT DIVISION, ABERDEEN PROVING GROUND AT APPROXIMATELY 10:40 A.M., ROUGHLY 20 MINUTES BEFORE THE 11:00 A.M. BID OPENING TIME STIPULATED FOR IFB 180, AND THAT THE BID FORMS HAD APPARENTLY BEEN PLACED IN THE WRONG ENVELOPES. THE BID OPENING OFFICER WROTE THE CORRECT IFB NUMBER ON THE BID ENVELOPE CONTAINING IFB 225, RESEALED IT, AND RETURNED IT TO THE CUSTODIAN OF ALL BIDS RECEIVED, LOCATED ACROSS THE HALL FROM THE BID OPENING ROOM, WHERE AN ENVELOPE MARKED IFB 225 BUT CONTAINING THE BID FORMS FOR IFB 180 WAS LOCATED AND RETURNED TO THE BID OPENING ROOM WHERE IT WAS OPENED, RECORDED, AND ABSTRACTED. THE BID OF NATIONWIDE WAS DETERMINED TO BE THE LOWEST RECEIVED, BUT NO AWARD HAS BEEN MADE TO DATE.

YOU POINT OUT THAT ASPR 2-302 REQUIRES THAT BIDS SHALL BE SUBMITTED SO AS TO BE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS NOT LATER THAN THE EXACT TIME SET FOR THE OPENING OF BIDS, AND THAT ASPR 2- 303.5 REQUIRES THAT LATE HAND-CARRIED BIDS SHALL NOT BE CONSIDERED FOR AWARD. YOU MAINTAIN THAT THE NATIONWIDE BID ON IFB 180 WAS LATE BECAUSE IT WAS NOT IN THE BID OPENING ROOM AT THE EXACT TIME SET FOR BID OPENING AND THAT ITS LATE RECEIPT WAS CAUSED BY CONDITIONS FOR WHICH THE BIDDER WAS RESPONSIBLE. YOU ALSO MAINTAIN THAT NATIONWIDE IS NOT TECHNICALLY QUALIFIED TO PERFORM THE SERVICES REQUIRED UNDER IFB 180 AS ITS ONLY PRIOR EXPERIENCE HAS BEEN THE PERFORMANCE OF JANITORIAL SERVICES.

THE REPORT SUBMITTED TO OUR OFFICE BY THE DEPARTMENT OF THE ARMY VERIFIES THAT NATIONWIDE'S BIDS ON BOTH IFB 180 AND IFB 225 WERE TIME STAMPED BEFORE THE 11:00 A.M. DEADLINE FOR IFB 180 AT THE OFFICE DESIGNATED IN THE IFB FOR THE SUBMISSION OF BIDS. WHILE THE NATIONWIDE BID ON IFB 180 WAS NOT IN THE BID OPENING ROOM AT THE TIME SET FOR OPENING IT WAS DEPOSITED AT THE PROPER OFFICE BEFORE THE TIME SET FOR BID OPENING AND REMAINED IN THE CONTROL OF THE GOVERNMENT UNTIL OPENED. WE THEREFORE MUST CONCLUDE THAT IT WAS TIMELY RECEIVED, AND THAT IT IS PROPERLY FOR CONSIDERATION FOR POSSIBLE AWARD. SEE 46 COMP. GEN. 859. WHILE THE NATIONWIDE BID ENVELOPE DID NOT PROPERLY IDENTIFY THE BID AS REQUIRED BY PARAGRAPH 5 OF STANDARD FORM 33A, WHICH WAS A PART OF THE INVITATION, THERE IS NO INDICATION THAT THE MISIDENTIFICATION WAS DELIBERATE OR THAT OTHER BIDDERS WERE PREJUDICED THEREBY.

IN 46 COMP. GEN. 859, CITED ABOVE, AN ERRONEOUSLY MARKED BID ENVELOPE WAS INVOLVED, WHICH ALTHOUGH IN THE GOVERNMENT'S POSSESSION BEFORE THE TIME SET FOR BID OPENING, WAS NOT DISCOVERED UNTIL THE NEXT DAY. IT WAS HELD THAT THE BID WAS TIMELY AND THAT THE AWARD MADE ON THE BASIS OF THE BID WAS VALID. IT WAS POINTED OUT THAT WHILE THE BIDDER SUBMITTING THE MISIDENTIFIED BID COULD IN ALL PROBABILITY HAVE PREVENTED CONSIDERATION OR OPENING OF ITS BID BY REMAINING SILENT OR BY REQUESTING WITHDRAWAL OF ITS BID BY REFERRING TO IT BY THE ERRONEOUS IFB NUMBER LISTED ON THE ENVELOPE, THE RISKS INVOLVED IN A DELIBERATE SCHEME TO GAIN AN ADVANTAGE BY RETAINING AN OPTION TO EITHER WITHDRAW THE BID AFTER OPENING OR TO BRING THE BID TO THE CONTRACTING OFFICER'S ATTENTION AND THEREBY ASSURE ITS CONSIDERATION WERE TOO GREAT TO INDICATE THAT THE MISLABELING WAS ANYTHING OTHER THAN A BONA FIDE ERROR. IT IS OUR OPINION THAT THE SAME REASONING IS APPLICABLE IN THE CASE AT HAND AS A BIDDER DELIBERATELY MISLABELING HIS BID COULD NOT BE ASSURED OF PREVENTING HIS MISLABELED BID FROM BEING CONSIDERED BY WITHDRAWING IT BEFORE ITS DISCOVERY BY THE CONTRACTING OFFICER, NOR COULD HE BE ASSURED OF BEING SUCCESSFUL IN BRINGING THE MISLABELED BID TO THE ATTENTION OF THE CONTRACTING OFFICER BEFORE AWARD WAS MADE TO ANOTHER BIDDER. ACCORDINGLY, WE CONCLUDE THAT THE IMPROPER IDENTIFICATION WAS A MINOR INFORMALITY PROPERLY WAIVABLE BY THE CONTRACTING OFFICER UNDER ASPR 2-405.

CONCERNING YOUR COMMENTS ABOUT NATIONWIDE'S TECHNICAL CAPABILITY TO PERFORM THE REQUIRED SERVICES, THE REPORT OF THE DEPARTMENT OF THE ARMY STATES THAT "THE CONTRACTING OFFICER WILL NOT MAKE AN AWARD TO NATIONWIDE OR ANY OTHER BIDDER UNDER IFB 180 WITHOUT FIRST MAKING, SIGNING AND PLACING IN THE CONTRACT FILE AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF ASPR 1-902.'

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.