B-165862, FEB. 27, 1969

B-165862: Feb 27, 1969

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TO COLORADO LUMBER PRODUCTS: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19. PUBLIC NOTICE OF THE SALE OF TIMBER WAS ADVERTISED NOVEMBER 14. THE ADVERTISEMENT STATED IN PERTINENT PART THAT: "SEALED BIDS WILL BE RECEIVED BY THE FOREST SUPERVISOR. FOR AN ESTIMATED 2520 M BOARD FEET OF TIMBER MARKED OR OTHERWISE DESIGNATED FOR CUTTING. * * * "* * * NO BID WILL BE CONSIDERED UNLESS THE BIDDER SUBMITS TO THE FOREST SUPERVISOR. THE ATTENTION OF THE TIMBER STAFF OFFICER WAS CALLED TO A DISCREPANCY THAT EXISTED AS TO THE TIME OF BID OPENING. THE RETURN ENVELOPE FURNISHED BY THE FOREST SERVICE WAS MARKED FOR OPENING AT 2 P.M. BIDS WERE THEN OPENED AT 2 O-CLOCK AND IT WAS ASCERTAINED THAT COLORADO STUDS.

B-165862, FEB. 27, 1969

TO COLORADO LUMBER PRODUCTS:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1968, ADDRESSED TO THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE, PROTESTING THE AWARD OF A TIMBER SALE CONTRACT TO COLORADO STUDS, INC.

PUBLIC NOTICE OF THE SALE OF TIMBER WAS ADVERTISED NOVEMBER 14, 1968, IN THE DELTA COUNTY INDEPENDENT. THE ADVERTISEMENT STATED IN PERTINENT PART THAT:

"SEALED BIDS WILL BE RECEIVED BY THE FOREST SUPERVISOR, DELTA, COLORADO, AT 10:00 A.M., M.S.T., DECEMBER 16, 1968, FOR AN ESTIMATED 2520 M BOARD FEET OF TIMBER MARKED OR OTHERWISE DESIGNATED FOR CUTTING. * * *

"* * * NO BID WILL BE CONSIDERED UNLESS THE BIDDER SUBMITS TO THE FOREST SUPERVISOR, AT LEAST 48 HOURS PRIOR TO THE OPENING OF BIDS: A SATISFACTORY SHOWING OF FINANCIAL ABILITY, EVIDENCE THAT HE HAS OR CAN OBTAIN EQUIPMENT SUITABLE TO LOG AND MANUFACTURE THE TIMBER WITHIN THE CONTRACT PERIOD, AND EVIDENCE OF BONDING ABILITY FROM AN ACCEPTABLE BONDING COMPANY.'

AT THE TIME AND PLACE DESIGNATED FOR BID OPENING IN THE ADVERTISEMENT, COLORADO LUMBER PRODUCTS HAD SUBMITTED THE ONLY BID. WITH THE SUBMISSION OF COLORADO LUMBER PRODUCTS' BID, THE ATTENTION OF THE TIMBER STAFF OFFICER WAS CALLED TO A DISCREPANCY THAT EXISTED AS TO THE TIME OF BID OPENING. WHILE THE ADVERTISEMENT AND PROSPECTUS STATED 10 A.M., THE RETURN ENVELOPE FURNISHED BY THE FOREST SERVICE WAS MARKED FOR OPENING AT 2 P.M. SINCE COLORADO STUDS, INC., HAD TIMELY SUBMITTED EVIDENCE OF ITS FINANCIAL CAPABILITY, THE TIMBER STAFF OFFICER CONTACTED THAT COMPANY TO FIND OUT WHETHER IT INTENDED TO SUBMIT A BID AND TO ADVISE IT OF THE DISCREPANCY IN THE BID OPENING TIME. AFTER BEING ADVISED THAT COLORADO STUDS BELIEVED BID OPENING TIME TO BE 2 P.M. AS SHOWN ON THE RETURN ENVELOPE AND THAT IT COULD NOT SUBMIT A BID BY 10 A.M., THE TIMBER STAFF OFFICER DECIDED TO DELAY THE BID OPENING UNTIL 2 P.M. BIDS WERE THEN OPENED AT 2 O-CLOCK AND IT WAS ASCERTAINED THAT COLORADO STUDS, INC., SUBMITTED THE HIGH BID. THEREAFTER, AWARD WAS MADE TO THAT HIGH BIDDER ON DECEMBER 19, 1968.

YOUR PROTEST SPECIFICALLY ALLUDES TO THE IMPROPER ACTION OF THE TIMBER STAFF OFFICER IN DELAYING THE TIME FOR RECEIPT AND OPENING OF BIDS. YOUR LETTER YOU STATE THAT "THE BURDEN IS UPON THE BIDDER TO DETERMINE AT WHAT TIME THE BID OPENING IS AND TO FORWARD ITS BID TO YOUR OFFICE BY THE TIME FOR WHICH THE SALE HAS BEEN ADVERTISED.' GENERALLY, WE FEEL THIS IS A CORRECT STATEMENT OF THE RULE INVOLVING LATE BIDS; HOWEVER, WE HAVE HELD THAT THERE ARE CIRCUMSTANCES WHICH JUSTIFY A CONTRACTING OFFICER'S DETERMINATION TO POSTPONE THE TIME FOR RECEIPT AND OPENING OF BIDS. OUR DECISION B-153288, MARCH 19, 1964, WE HAD OCCASION TO CONSIDER THE LEGAL EFFECT OF A POSTPONEMENT OF BID OPENING DUE TO A NATIONAL DAY OF MOURNING PROCLAIMED FOR THE LATE PRESIDENT KENNEDY. IN THAT CASE, WE HELD THAT "WE KNOW OF NO LEGAL REQUIREMENT THAT THERE BE AN OPENING OF BIDS WHEN IT IS DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT TO POSTPONE THE OPENING.' SEE, ALSO, OUR DECISION B-158464, MARCH 28, 1966, IN WHICH WE HELD THAT A POSTPONEMENT OF BID OPENING BECAUSE OF INCLEMENT WEATHER WAS PROPER.

IN THIS CASE, PROSPECTIVE BIDDERS WERE ACTIVELY MISLED BY A MISTAKE OF A GOVERNMENT EMPLOYEE IN MARKING A DIFFERENT TIME FOR RECEIPT OF BIDS ON THE ENVELOPE THAN THE TIME STATED IN THE ADVERTISEMENT. AT THE ADVERTISED TIME SET FOR BID OPENING, ONLY ONE BID HAD BEEN RECEIVED; THEREFORE, IT WOULD SEEM CLEARLY TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO POSTPONE BID OPENING TO A LATER HOUR SO AS TO SECURE ADEQUATE COMPETITION AS WELL AS TO ASSURE FAIRNESS TO ALL INTERESTED BIDDERS WHO MAY HAVE BEEN MISLED. BECAUSE OF THE TIME DISCREPANCY, WE ARE OF THE OPINION THAT THE TIMBER STAFF OFFICER HAD AMPLE JUSTIFICATION FOR DELAYING THE TIME FOR OPENING BIDS. ADDITIONALLY, SINCE BOTH BIDS WERE OPENED AT THE SAME TIME, COLORADO STUDS COULD NOT HAVE KNOWN THE AMOUNT OF YOUR BID WHEN IT SUBMITTED ITS OFFER. THEREFORE, IT IS DIFFICULT TO SEE HOW YOUR COMPANY WAS IN ANY WAY PREJUDICED BY THE DELAY. IN THE ABSENCE OF A SHOWING OF DETRIMENT TO YOUR COMPANY DIRECTLY ATTRIBUTABLE TO THE POSTPONEMENT, WE FIND NO BASIS TO QUESTION THE DELAYED OPENING OF BIDS.