B-164625, JUL. 11, 1968

B-164625, JUL. 11, 1968

TO METROPOLITAN REPORTING SERVICE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1968, IN WHICH YOU PROTEST AGAINST THE REFUSAL OF THE UNITED STATES TARIFF COMMISSION TO CONSIDER YOUR BID FOR AWARD UNDER INVITATION FOR BIDS NO. 69-1 ISSUED ON JUNE 4, 1968, BY SAID AGENCY.

THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 2:00 P.M., DST, ON JUNE 14, 1968, AND THAT SAID BIDS WOULD BE PUBLICLY OPENED IN THE BID ROOM (114), TARIFF COMMISSION BUILDING. YOUR BID IS REPORTED TO HAVE BEEN TENDERED AFTER THAT TIME AND AFTER OPENING AND READING OF BIDS HAD BEEN COMPLETED. THE PROCURING AGENCY'S REPORT OF THE FACTS AND CIRCUMSTANCES CONCERNING THE OPENING OF BIDS AND THE PROFFER OF YOUR LATE BID IS AS FOLLOWS: "* * * BIDS WERE HAND CARRIED AND RECEIVED FROM A REPRESENTATIVE FROM ALDERSON REPORTING COMPANY, INC., AT 1:15 P.M. AND FROM WARD AND PAUL AT 1:45 P.M. ON JUNE 14, 1968. THE REPRESENTATIVES OF BOTH COMPANIES AWAITED THE TIME FOR OPENING THE BIDS. AT 2:00 P.M., ACCORDING TO THE WALL CLOCK IN THE BID ROOM (114), TARIFF COMMISSION BUILDING, I ANNOUNCED THAT IT WAS 2:00 P.M. AND THAT THE BIDS WOULD BE OPENED. THE REPRESENTATIVE FROM WARD AND PAUL STATED THAT HIS WRIST WATCH CORRESPONDED TO THE TIME ON THE WALL CLOCK. THE ALDERSON REPORTING COMPANY, INC., BID WAS OPENED FIRST AND THE BID WAS READ, THEN THE WARD AND PAUL BID WAS OPENED AND READ. "AT 2:02 P.M. BY THE WALL CLOCK, A REPRESENTATIVE OF METROPOLITAN REPORTING SERVICES, INC., ARRIVED IN THE BID ROOM AND PRESENTED THE METROPOLITAN BID TO ME. I REFUSED THE BID STATING -IT IS AFTER 2:00 P.M. AND THE SOLICITATION STATED THAT THE BID HAD TO BE HERE AT 2:00 P.M.- THE METROPOLITAN REPORTING SERVICES, INC. REPRESENTATIVE IMMEDIATELY PHONED FOR THE TELEPHONE TIME AND ASKED THAT I LISTEN TO THE TIME REPORT. THE TIME WAS STATED ON THE TELEPHONE AS FOLLOWS, -AT THE TONE THE TIME WILL BE 2:00, EXACTLY.- I REFUSED TO ACCEPT THE BID; IT WAS MY OPINION THAT THE TIME ON THE WALL CLOCK WAS THE BID TIME. ACCORDING TO THE FEDERAL PROCUREMENT REGULATIONS (SUBPART 1 2.402 OPENING OF BIDS, (A) (, THE OFFICIAL DESIGNATED AS THE BID OPENING OFFICER SHALL DECIDE WHEN THE TIME SET FOR BID OPENING HAS ARRIVED AND SHALL SO DECLARE TO THOSE PRESENT. "THE REPRESENTATIVE FROM METROPOLITAN REPORTING SERVICES, INC., REQUESTED THAT I RECEIVE AND OPEN THE BID UNDER PROTEST. I ACCEPTED HIS BID UNDER PROTEST AND IN THE EXCITEMENT OF THE PROCEEDINGS I OPENED AND READ THE BID. SHORTLY THEREAFTER THE BID WAS SEALED BY ME AND A NOTATION WAS MADE ON THE ENVELOPE THAT IT WAS OPENED BY MISTAKE.'

YOUR VERSION OF THE FACTS, AS RELATED IN YOUR LETTER OF PROTEST, DOES NOT DIFFER MATERIALLY WITH THOSE OF THE AGENCY STATED ABOVE. THUS THE PRINCIPAL QUESTION FOR CONSIDERATION IS, WHO DETERMINES THAT THE CORRECT TIME SET FOR BID OPENING HAS ARRIVED. SUCH A QUESTION COULD BE RAISED IN MOST CASES WITH RESPECT TO THE ACCURACY OF A CLOCK USED FOR AN OFFICIAL PURPOSE. IT IS PRESUMABLY FOR THIS REASON THAT UNDER FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.402 THE BID OPENING OFFICER IS GIVEN THE AUTHORITY TO DECIDE WHEN THE TIME SET FOR OPENING HAS ARRIVED. IN THIS INSTANCE HE DECIDED THAT SUCH TIME HAD ARRIVED APPROXIMATELY TWO MINUTES BEFORE YOUR BID HAD BEEN HANDED TO HIM. IN CONSIDERING SUCH A QUESTION IN THE PAST, WE SAID IN 40 COMP. GEN. 709, 11:

"* * * IN THE VERY LEAST, IN OUR VIEW, THE TIME USED BY THE BID OPENING OFFICER MUST BE REGARDED AS PRIMA FACIE EVIDENCE OF THE CORRECT TIME. 137686, OCTOBER 24, 1958. THIS PRESUMPTION OF CORRECTNESS HAS CERTAINLY NOT BEEN OVERCOME IN THIS INSTANCE. * * *" THIS RULING DOES NOT MEAN THAT WE WILL COUNTENANCE A CONSTRUCTION OF THIS AUTHORITY OF THE CONTRACTING OFFICER TO DECLARE WHEN THE TIME FOR BID OPENING HAS ARRIVED, AS CONCLUSIVE ON ALL BIDDERS, REGARDLESS OF OTHER PRESENT INDICATIONS OF THE ACTUAL TIME. THUS, IN 41 COMP. GEN. 807, 909, WHERE THE BID OPENING OFFICER IGNORED THE TIME SHOWN ON THE OFFICIAL CLOCK IN THE BID OPENING ROOM, WE SAID:

"WE DO NOT CONSTRUE THE PROVISIONS OF SECTION 2-402.1, ASPR (IDENTICAL TO THE FPR PROVISION APPLICABLE HERE), AS VESTING IN THE BID OPENING OFFICER ANY AUTHORITY TO ARBITRARILY DETERMINE A BID CLOSING TIME EARLIER THAN THE HOUR SPECIFIED IN THE INVITATION FOR BIDS, AT LEAST IN ANY CASE WHERE SUCH ACTION OPERATES TO THE DETRIMENT OF A PROSPECTIVE BIDDER. * * *" IT SHOULD BE NOTED ALSO THAT IN THAT CASE ONLY A PART OF ONE BID HAD BEEN READ WHEN THE CONTESTED BID WAS PRESENTED, SO THERE WAS NO POSSIBILITY OF ANY ADVANTAGE TO THE LATE BIDDER.

HERE, HOWEVER, THE BID OPENING OFFICER DID NOT COMMENCE THE OPENING OF BIDS UNTIL THE HOUR SPECIFIED IN THE INVITATION HAD ARRIVED, AS SHOWN BY THE CLOCK IN THE BID OPENING ROOM, WHICH APPARENTLY WAS IN AGREEMENT WITH THE BID OPENING OFFICER'S WATCH AND THE WATCHES OF THE TWO OTHER BIDDERS WHO HAD ARRIVED ON TIME WITH THEIR HAND DELIVERED BIDS, AND BOTH OF THE OTHER BIDS HAD BEEN READ BEFORE YOURS WAS TENDERED.

FPR 1-2.303, THE REGULATION WHICH GOVERNS CONSIDERATION OF LATE BIDS, DEFINES A LATE BID AS ONE WHICH IS RECEIVED AFTER THE EXACT TIME FIXED FOR BID OPENING. BY THE TERMS OF SAID FPR PROVISION, AND OF THE INVITATION PROVISION BASED THEREON (SECTION 6,"BIDDING INSTRUCTIONS, TERMS AND CONDITIONS," STANDARD FORM 33-A), THE ONLY LATE BIDS WHICH ARE AUTHORIZED TO BE CONSIDERED FOR AWARD ARE CERTAIN TIMELY DISPATCHED MAILED OR TELEGRAPHIC BIDS WHICH ARE RECEIVED BEFORE AWARD, PROVIDED CERTAIN EVIDENTIARY REQUIREMENTS ARE MET. FPR 1-2.303-5 READS AS FOLLOWS:

"HAND-CARRIED BIDS. A LATE HAND-CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD.'

INASMUCH AS YOUR BID WAS HAND CARRIED, IT CLEARLY DOES NOT COME WITHIN THE PURVIEW OF THE REGULATIONS AND THE PROVISIONS OF THE IFB PERTAINING TO LATE BIDS SUBMITTED BY MAIL OR TELEGRAM. B-164570, JUNE 25, 1968; 38 COMP. GEN. 234.

ALSO FOR APPLICATION IS OUR DECISION B-135237, FEBRUARY 25, 1958, WHERE WE SAID:

"OBVIOUSLY, THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT CONSIDERATIONS OF DELAYS IN TRAFFIC, AND THE LIKE, TO ALTER OR AFFECT THE FIXED AND EXACT TIME CLEARLY STATED IN THE INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE BID SYSTEM. WHILE SUCH FIXED REQUIREMENT FOR BID OPENING MAY OPERATE HARSHLY IN CERTAIN INSTANCES, 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 THE CIRCUMSTANCES, IT IS OUR OPINION THAT FPR 1-2.303-5 AND 1 2.402 REQUIRE THAT YOUR BID BE REJECTED. IN THIS REGARD, ANY HARM THAT MAY HAVE BEEN DONE BY THE ACCIDENTAL OPENING OF YOUR BID WAS CURED BY THE BID OPENING OFFICER FOLLOWING THE PROCEDURES OUTLINED IN FPR 1-2.401 (B). THE FACT THAT YOUR BID MAY HAVE BEEN LOW DOES NOT WARRANT AN EXCEPTION TO THE REGULATIONS, IT BEING MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY VIOLATION OF SUCH RULES. 17 COMP. GEN. 554.

THEREFORE, FOR THE REASONS STATED, YOUR PROTEST IS DENIED AND WE ARE BY SEPARATE LETTER ADVISING THE UNITED STATES TARIFF COMMISSION THAT THEY MAY PROCEED WITH AWARD WITHOUT REFERENCE TO YOUR BID.