B-166703, JUN. 12, 1969, 48 COMP. GEN. 775

B-166703: Jun 12, 1969

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- WAS INCONSISTENT WITH 39 U.S.C. 2103 (A) AND 2112 (2) REQUIRING THE CONSUMMATION OF POST OFFICE LEASE AGREEMENTS IN ACCORDANCE WITH 41 U.S.C. 5. 1969: REFERENCE IS MADE TO THE LETTER OF MAY 1. ANY AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID. THE GOVERNMENT HAS ACQUIRED TITLE TO THE SITE UPON WHICH THIS POSTAL FACILITY WILL BE LOCATED AT A COST OF $307. 024.00 AS REIMBURSEMENT TO THE DEPARTMENT FOR SITE COST. * * * FAILURE TO COMPLY WITH THE TIME LIMITS STATED IN SUBPARAGRAPHS 1A AND 1B ABOVE WILL BE GROUNDS FOR CONSIDERATION OF DEFAULT ACTION. BIDS WERE OPENED ON DECEMBER 13. PEARLMAN WAS THE LOWEST. IT IS REPORTED THAT MR. PEARLMAN SENT A TELEGRAM TO THE POST OFFICE DEPARTMENT AS FOLLOWS: IN ACCORDANCE WITH YOUR REQUEST THIS WILL ADVISE YOU THAT I AGREE TO EXTEND MY BID TO MARCH 28 ON THE FORT HAMILTON POST OFFICE TOGETHER WITH ALL OPTIONS AS BID PROVIDING THIS EXTENSION DOES NOT CREATE ADDITIONAL COSTS NOT ANTICIPATED IN THE BIDDING DOCUMENTS VIZ THE DATE TO ACQUIRE THE LAND FROM THE FEDERAL GOVERNMENT WILL BE EXTENDED THE SAME NUMBER OF DAYS YOU HAVE REQUESTED AN EXTENSION FOR.

B-166703, JUN. 12, 1969, 48 COMP. GEN. 775

POST OFFICE DEPARTMENT--LEASES--BUILDING CONSTRUCTION--SPECIFICATION COMPLIANCE UNDER AN INVITATION FOR BIDS TO CONSTRUCT A BUILDING ON GOVERNMENT LAND FOR LEASE TO THE POST OFFICE DEPARTMENT, WITH REIMBURSEMENT TO THE DEPARTMENT FOR THE COST OF THE SITE BY THE DATE SPECIFIED, AN AWARD TO THE LOW BIDDER AFTER HIS WITHDRAWAL OF A BID ACCEPTANCE TIME EXTENSION AND PRIOR TO THE ACCEPTANCE OF THE CONDITION FOR THE EXTENSION--- AN EQUAL TIME EXTENSION FOR THE SITE PAYMENT--- WAS INCONSISTENT WITH 39 U.S.C. 2103 (A) AND 2112 (2) REQUIRING THE CONSUMMATION OF POST OFFICE LEASE AGREEMENTS IN ACCORDANCE WITH 41 U.S.C. 5--- AWARD TO THE LOWEST, RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE ADVERTISED SPECIFICATIONS. THE SITE PAYMENT, A MATERIAL REQUIREMENT THAT THE CONTRACTING OFFICER COULD NOT WAIVE, EITHER UNDER THE ORIGINAL BID OR THE BID EXTENSION, THE AWARD TO THE LOW BIDDER SHOULD BE CANCELED AND THE BID DEPOSIT REFUNDED.

TO THE POSTMASTER GENERAL, JUNE 12, 1969:

REFERENCE IS MADE TO THE LETTER OF MAY 1, 1969, FROM THE ASSISTANT GENERAL COUNSEL, REAL PROPERTY AND PROCUREMENT DIVISION, REPORTING ON THE PROTEST OF MR. LEONARD D. PEARLMAN AGAINST THE AWARD TO HIM OF A CONTRACT FOR THE CONSTRUCTION AND LEASE TO THE POST OFFICE DEPARTMENT OF THE FORT HAMILTON STATION IN BROOKLYN, NEW YORK.

THE ADVERTISEMENT FOR BIDS DATED NOVEMBER 8, 1968, SOLICITED BIDS PURSUANT TO THE LEASING AUTHORITY IN 39 U.S.C. 2103 AND THE ADVERTISING REQUIREMENTS OF 41 U.S.C. 5. PARAGRAPH 3 OF THE ADVERTISEMENT FOR BIDS PROVIDED:

3. ANY AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE ADVERTISEMENT FOR BIDS, OFFERS THE LOWEST ANNUAL RENTAL FOR THE BASIC LEASE TERM. IN CASE OF TIE BIDS IN THE BASIC LEASE TERM RENTAL, THE LOW BID SHALL BE THE ONE QUOTING THE LOWER RENEWAL OPTION RENTAL IN THE ASCENDING ORDER OF RENEWAL OPTION PERIODS. THE POST OFFICE DEPARTMENT RESERVES THE RIGHT TO NEGOTIATE WITH THE LOW BIDDER AS TO ANY OR ALL RENTAL RATES OR OTHER TERMS AND CONDITIONS OF THE AGREEMENT TO LEASE WITHOUT WAIVING ITS RIGHT TO ACCEPT THE BID AS SUBMITTED. THE POST OFFICE DEPARTMENT MAY, WHEN IN ITS INTEREST, REJECT ANY OR ALL BIDS OR WAIVE ANY INFORMALITY IN BIDS RECEIVED.

PARAGRAPH 6 OF THE ADVERTISEMENT STATED:

6. THE GOVERNMENT HAS ACQUIRED TITLE TO THE SITE UPON WHICH THIS POSTAL FACILITY WILL BE LOCATED AT A COST OF $307,024.00 WHICH AMOUNT THE SUCCESSFUL BIDDER MUST REIMBURSE TO THE GOVERNMENT NOT LATER THAN JUNE 13, 1969. * * *

THE AGREEMENT TO LEASE STATED:

1. IN COMPLIANCE WITH THE ADVERTISEMENT FOR BIDS DATED NOVEMBER 8, 1968, THE UNDERSIGNED AGREES THAT, UPON WRITTEN ACCEPTANCE OF THIS BID, MAILED OR OTHERWISE FURNISHED, HE SHALL:

A. * * *

B. NOT LATER THAN JUNE 13, 1969, REMIT TO ASSISTANT POSTMASTER GENERAL, BUREAU OF FACILITIES, POST OFFICE DEPARTMENT, WASHINGTON, D.C. 20260, BY CERTIFIED CHECK OR CASHIER'S CHECK MADE PAYABLE TO "BUREAU OF FINANCE AND ADMINISTRATION, POST OFFICE DEPARTMENT," THE SUM OF $307,024.00 AS REIMBURSEMENT TO THE DEPARTMENT FOR SITE COST. * * *

FAILURE TO COMPLY WITH THE TIME LIMITS STATED IN SUBPARAGRAPHS 1A AND 1B ABOVE WILL BE GROUNDS FOR CONSIDERATION OF DEFAULT ACTION.

BIDS WERE OPENED ON DECEMBER 13, 1968. OF THE FOUR BIDS RECEIVED, THE BID FROM MR. PEARLMAN WAS THE LOWEST. PRIOR TO THE EXPIRATION OF THE 60- DAY PERIOD PROVIDED FOR THE ACCEPTANCE OF THE BID, A REPRESENTATIVE OF THE POST OFFICE DEPARTMENT ORALLY REQUESTED MR. PEARLMAN TO EXTEND THE ACCEPTANCE PERIOD THROUGH MARCH 28, 1969. IT IS REPORTED THAT MR. PEARLMAN STATED IT WOULD BE NECESSARY THAT THE TIME FOR PAYING THE PURCHASE PRICE OF THE SITE BE EXTENDED FOR THE SAME NUMBER OF DAYS AS THE BID EXTENSION AND THAT THE POST OFFICE OFFICIAL ADVISED HIM THAT SUCH AN EXTENSION OF TIME FOR MAKING PAYMENT FOR THE SITE WOULD BE ACCEPTABLE.

SUBSEQUENTLY, ON FEBRUARY 11, 1969, MR. PEARLMAN SENT A TELEGRAM TO THE POST OFFICE DEPARTMENT AS FOLLOWS:

IN ACCORDANCE WITH YOUR REQUEST THIS WILL ADVISE YOU THAT I AGREE TO EXTEND MY BID TO MARCH 28 ON THE FORT HAMILTON POST OFFICE TOGETHER WITH ALL OPTIONS AS BID PROVIDING THIS EXTENSION DOES NOT CREATE ADDITIONAL COSTS NOT ANTICIPATED IN THE BIDDING DOCUMENTS VIZ THE DATE TO ACQUIRE THE LAND FROM THE FEDERAL GOVERNMENT WILL BE EXTENDED THE SAME NUMBER OF DAYS YOU HAVE REQUESTED AN EXTENSION FOR.

THE POST OFFICE RESPONDED TO MR. PEARLMAN BY TELEGRAM OF FEBRUARY 13, 1969, AS FOLLOWS:

REURTEL FEBRUARY 11 CONDITION FOR EXTENSION UNCLEAR. DO YOU MEAN ONLY CONDITION IS THAT PAYMENT FOR LAND WILL BE EXTENDED FORTY FIVE DAYS FROM JUNE 19, 1969 AS CONSIDERATION FOR EXTENSION OF BID TO MARCH 28, 1969 WITH ALL OTHER TERMS AND CONDITIONS OF BID UNCHANGED? IMMEDIATE ANSWER ESSENTIAL.

BY TELEGRAM OF FEBRUARY 17, 1969, MR. PEARLMAN ANSWERED:

RE YOUR TELEGRAM FORT HAMILTON POST OFFICE ONLY CONDITION WOULD BE AN EQUIVALENT EXTENSION OF TIME TO PURCHASE LAND.

THEN ON MARCH 18, 1969, MR. PEARLMAN SENT A TELEGRAM AS FOLLOWS:

* * * AS I HAVE NOT RECEIVED AN ACCEPTANCE OF MY "CONDITIONAL EXTENSION OF TIME" I MUST WITHDRAW "THE EXTENSION OF TIME" PREVIOUSLY GIVEN YOU.

BY TELEGRAM OF MARCH 19, 1969, THE POST OFFICE DEPARTMENT ADVISED MR. PEARLMAN:

REURTEL OF MARCH 18, 1969. YOUR WITHDRAWAL IS NOT ACCEPTED. YOUR TELEGRAPHIC REPLY TO THE DEPARTMENT'S FEBRUARY 13, 1969 TELEGRAM REMOVED ALL CONDITIONS AND CONFIRMED A BINDING EXTENSION UNTIL MARCH 28, 1969.

BY TELEGRAM OF MARCH 23, 1969, MR. PEARLMAN RESPONDED:

MY TELEGRAPHIC REPLY TO THE DEPARTMENT'S FEBRUARY 13 TELEGRAM UNQUESTIONABLY HAD A CONDITION ATTACHED THAT THE DEPARTMENT DID NOT ACCEPT PRIOR TO MY WITHDRAWAL. I HAVE NOT RECEIVED ANY CORRESPONDENCE OR AGREEMENT FROM THE DEPARTMENT ALLOWING THEM TO TAKE TITLE TO THE LAND IN ACCORDANCE WITH THE BIDDING DOCUMENTS, AND PAYING FOR SOME 45 DAYS THEREAFTER. AWARD OF THE BID TO ME AT THIS TIME WILL SUBJECT ME TO UNFAIR AND UNDUE HARDSHIP NOT ANTICIPATED BY THE BIDDING DOCUMENTS.

ON MARCH 28, 1969, THE POST OFFICE SENT TO MR. PEARLMAN THE FOLLOWING TELEGRAM:

REURTEL MARCH 23, 1969, NO PROPER BASIS FOR WITHDRAWAL OF FIRM BID SHOWN. YOUR BID TO CONSTRUCT AND LEASE QUARTERS TO US FOR THE FORT HAMILTON STATION OF THE BROOKLYN, NEW YORK POST OFFICE IS ACCEPTED, AS PER WIRES OF 2/11/69 AND 2/17/69 EXTENDING BID DATE TO MARCH 28, 1969, AT ANNUAL RENTAL OF $80,480 FOR THE BASIC TERM. TIME FOR REIMBURSEMENT OF SITE ACQUISITION COST OF $307,024 IS EXTENDED TO JULY 28, 1969 PER YOUR TEL OF FEBRUARY 11, 1969. PLEASE FURNISH THIS OFFICE WITHIN TWENTY DAYS PERFORMANCE BOND IN SUM OF $643,840 AND LABOR AND MATERIALS BOND IN SUM OF $321,920. EXECUTED PAPERS FOLLOW. PLEASE TREAT THIS AS CONFIDENTIAL INFORMATION UNTIL PUBLICLY ANNOUNCED.

ESSENTIALLY, IT IS THE POSITION OF MR. PEARLMAN THAT THE BID EXTENSION WAS SO CONDITIONED THAT IT WOULD NOT BECOME EFFECTIVE UNLESS AND UNTIL THE POST OFFICE ACCEPTED THE CONDITION, AND THAT A VALID CONTRACT NEVER CAME INTO EXISTENCE BECAUSE THE POST OFFICE ACCEPTED THE CONDITION AFTER HE HAD WITHDRAWN THE EXTENSION. MR. PEARLMAN HAS INDICATED THAT THE REASON FOR WITHDRAWING THE BID WAS THAT THE FINANCING HE HAD TENTATIVELY ARRANGED WHILE AWAITING CONFIRMATION OF THE BID EXTENSION WAS NO LONGER AVAILABLE BECAUSE OF AN INCREASE IN INTEREST RATES AND REDUCTION OF FUNDS AVAILABLE FOR MORTGAGES.

THE POST OFFICE DEPARTMENT TAKES THE POSITION THAT ONCE THE BIDDER EXTENDED THE TIME FOR CONSIDERATION OF THE BID, THE BIDDER WAS PRECLUDED FROM WITHDRAWING THE BID UNDER THE "FIRM BID RULE" AND THAT THE DEPARTMENT DID NOT HAVE TO CONFIRM THE ACCEPTANCE OF THE CONDITION TO MAKE THE EXTENSION EFFECTIVE. IT IS STATED THAT THE ONLY CHANGE IN THE ORIGINAL OFFER WAS THAT THE TIME FOR REIMBURSING THE SITE ACQUISITION COSTS WAS EXTENDED AND THAT THIS WAS NOT A MATERIAL CHANGE SINCE IT STEMMED FROM A DELAY IN AWARD BY THE GOVERNMENT FOR WHICH THE BIDDER WOULD HAVE BEEN ENTITLED TO A TIME EXTENSION UNDER THE "TERMINATION FOR DEFAULT--- DAMAGES FOR DELAY--- TIME EXTENSIONS" CLAUSE OF THE CONTRACT, CITING ANTHONY P. MILLER, INC. V. UNITED STATES, 161 CT. CL. 455.

THE CITED CONTRACT CLAUSE PROVIDES THAT THE CONTRACTOR'S RIGHT TO PROCEED SHALL NOT BE TERMINATED IF THE DELAY IN THE COMPLETION OF THE WORK ARISES FROM UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD, ACT OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT IN EITHER ITS SOVEREIGN OR CONTRACTUAL CAPACITY, ACTS OF ANOTHER CONTRACTOR IN THE PERFORMANCE OF A CONTRACT WITH THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, UNUSUALLY SEVERE WEATHER, OR DELAYS OF SUBCONTRACTORS OR SUPPLIERS ARISING FROM UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF BOTH THE CONTRACTOR AND SUCH SUBCONTRACTORS OR SUPPLIERS. THE CONTRACT CLAUSE PROVIDES FURTHER THAT THE CONTRACTING OFFICER SHALL ASCERTAIN THE FACTS AND THE EXTENT OF THE DELAY AND EXTEND THE TIME FOR COMPLETING THE WORK WHEN, IN HIS JUDGMENT, THE FINDINGS OF FACTS JUSTIFY SUCH AN EXTENSION.

IN B-159239, AUGUST 2, 1966, AND B-155281, OCTOBER 29, 1964, WE OBSERVED THAT PROJECTS ADVERTISED FOR ACQUISITION PURSUANT TO 39 U.S.C. 2103 (A), AS IMPLEMENTED BY 39 U.S.C. 2112 (2) REQUIRING CONSUMMATION OF LEASE AGREEMENTS IN ACCORDANCE WITH THE ADVERTISING REQUIREMENTS OF 41 U.S.C. 5, ARE TO BE AWARDED ONLY TO THE RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS. FURTHER, IN B-163775, MAY 6, 1968, CONCERNING A SOLICITATION FOR BIDS PURSUANT TO 39 U.S.C. 2103 AND THE ADVERTISING REQUIREMENTS IN 41 U.S.C. 5, IT WAS STATED:

THE FACT THAT THE ADVERTISEMENT HERE INVOLVED WAS ISSUED IN ACCORDANCE WITH THE ADVERTISING REQUIREMENTS OF 41 U.S.C. 5 (SECTION 3709, REVISED STATUTES, AS AMENDED), COULD NOT BE CONSIDERED AS AUTHORIZING OR JUSTIFYING THE ACCEPTANCES OF A BID NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED TERMS AND CONDITIONS OF THE PROPOSED CONTRACT. IN THAT CONNECTION, SEE 17 COMP. GEN. 751, WHEREIN IT WAS STATED THAT SECTION 3709, REVISED STATUTES, REQUIRES ALL CONTRACTS WITH THE UNITED STATES TO BE ADVERTISED AND LET TO THE LOWEST RESPONSIVE BIDDER; AND 17 ID. 554, WHERE IT WAS INDICATED THAT TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS OR TO PERMIT BDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD BE CONTRARY TO THE FUNDAMENTAL RULES GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS.

MOREOVER, IN B-158182, MARCH 4, 1966, AND B-151791, SEPTEMBER 25, 1963, OUR OFFICE HELD THAT WHERE BID EXTENSIONS WERE DIFFERENT FROM THE ORIGINAL BIDS IN MATERIAL RESPECTS, THEY COULD NOT BE CONSIDERED BY THE CONTRACTING OFFICER. IN B-158182, IT WAS STATED:

* * * WE HAVE CONSISTENTLY HELD THAT THE SUBMISSION OF A SECOND BID AFTER DISCLOSURE OF ALL BID PRICES IS CONTRARY TO THE WELL ESTABLISHED PRINCIPLE GOVERNING COMPETITIVE BIDDING. SEE 34 COMP. GEN. 82; 35 ID. 33; 41 ID. 203. * * *

IN B-151791, SUPRA, IT WAS STATED:

* * * WE HAVE REPEATEDLY HELD THAT TO PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. COMP. GEN. 167, AND CASES CITED THEREIN. * * *

IN 36 COMP. GEN. 181 WE CONSIDERED THE CASE OF A BIDDER WHO OFFERED A DELIVERY LATER THAN THE TIME SPECIFIED IN THE INVITATION FOR BIDS. THAT CONNECTION, THE DECISION STATED:

WE HAVE CONSISTENTLY HELD THAT WHERE AN INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS "OF THE ESSENCE" OF THE CONTRACT TO BE ENTERED INTO NOTWITHSTANDING THE INVITATION DOES NOT EXPRESSLY SO STATE. THE ACCEPTANCE OF A LOW BID OFFERING DELIVERY LATER THAN SPECIFIED IN THE INVITATION HAS BEEN HELD TO BE CONTRARY TO THE SPIRIT AND PURPOSE OF THE LAW GOVERNING PROCUREMENTS MADE PURSUANT TO ADVERTISING. * * *

THE CONTRACT AWARDED TO THE SUCCESSFUL BIDDER MUST BE THE SAME OFFERED IN THE INVITATION. 34 COMP. GEN. 119. WHILE THE CONTRACTING OFFICER MAY WAIVE INFORMALITIES IN BIDS, THIS AUTHORITY DOES NOT EXTEND TO THE WAIVER OF MATERIAL VARIATIONS TO THE TERMS AND CONDITIONS OF THE INVITATION. AWARD A CONTRACT TO A LOW BIDDER WITHOUT REGARD TO THE TERMS AND CONDITIONS OF DELIVERY ADVERTISED WOULD DISCRIMINATE AGAINST OTHER BIDDERS WHO MAY WELL HAVE INCLUDED OVERTIME PAY AND OTHER ADDITIONAL COSTS IN ORDER TO MEET THE DEADLINE. A PROVISION OF AN INVITATION WHICH ON ITS FACE ESTABLISHES A DEFINITE REQUIREMENT AS TO TIME OF DELIVERY IS MATERIAL. CF. B 104418, AUGUST 23, 1951. THE ACCEPTANCE OF A BID NOT COMPLYING WITH SUCH MATERIAL PROVISION IS UNAUTHORIZED AND DOES NOT BIND THE GOVERNMENT. 17 COMP. GEN. 554, 559. ACCORDINGLY, THE AWARD IN THIS CASE WAS IMPROPERLY MADE * * *.

SEE, ALSO, 38 COMP. GEN. 98 AND ID. 876. IN THE LATTER DECISION IT WAS STATED:

* * * WHERE THE INVITATION ON ITS FACE REQUIRES DELIVERY WITHIN A STATED PERIOD, TIME MUST BE REGARDED AS OF THE ESSENCE OF THE CONTRACT EVEN IF THE INVITATION DOES NOT EXPRESSLY SO STATE. 36 COMP. GEN. 181. FAILURE OF A BID TO CONFORM TO THE REQUIRED DELIVERY SCHEDULE MUST BE REGARDED AS MATERIAL DEVIATION WHICH CANNOT BE UNWAIVED AND WHICH REQUIRES REJECTION OF SUCH BID. 34 COMP. GEN. 24.

AS INDICATED ABOVE, OUR OFFICE HAS TAKEN THE POSITION THAT WHERE AN INVITATION STATES A TIME FOR PERFORMANCE, IT MUST BE REGARDED AS "OF THE ESSENCE" OF THE ADVERTISED CONTRACT EVEN THOUGH NOT EXPRESSLY STATED. THIS CASE, THE ADVERTISEMENT FOR BIDS PROVIDED THAT THE CONTRACTOR SHALL REIMBURSE THE GOVERNMENT FOR THE LAND NOT LATER THAN JUNE 13, 1969. BUT, EVEN MORE THAN THAT, THE AGREEMENT TO LEASE STATED THAT FAILURE TO COMPLY WITH SUCH TIME LIMIT WILL BE GROUNDS FOR CONSIDERATION OF DEFAULT. THEREFORE, WE BELIEVE THAT THERE CAN BE NO QUESTION BUT THAT THE JUNE 13 DATE WAS A MATERIAL REQUIREMENT AND THE CONTRACTING OFFICER COULD NOT PROPERLY WAIVE SUCH REQUIREMENT IN THE ORIGINAL BID OR PERMIT A DEVIATION THEREFROM IN THE BID EXTENSION. SEE DECISIONS, SUPRA. WHERE A CHANGE IN A MATERIAL REQUIREMENT OCCURS BEFORE AWARD, THE ONLY ALTERNATIVE IS TO REJECT ALL BIDS AND TO READVERTISE. ACCORDINGLY, WHETHER THE CONTRACTING OFFICER WOULD OR WOULD NOT EXTEND THE TIME FOR PERFORMANCE UNDER THE "TIME EXTENSIONS" CLAUSE OF THE CONTRACT IS OF NO SIGNIFICANCE.

THE ANTHONY P. MILLER CASE REFERRED TO ABOVE HAS NO RELEVANCE TO THE IMMEDIATE SITUATION. IN THAT CASE, THE CONTRACTOR WAS NOT GRANTED ADDITIONAL TIME FOR CLOSING A HOUSING CONTRACT BECAUSE THE GOVERNMENT DELAYED IN MAKING AN AWARD TO IT. THE ADDED TIME WAS GRANTED BECAUSE OF DIFFICULTIES THE CONTRACTOR ENCOUNTERED IN OBTAINING FINANCING AFTER THE CONTRACT WAS AWARDED. THE COURT DID NOT PASS ON WHETHER THERE WERE ADEQUATE GROUNDS FOR ALLOWING THE CONTRACTOR ADDITIONAL TIME FOR CLOSING. THAT ADDITIONAL TIME WAS GRANTED WAS STATED AS A MATTER OF FACT. FURTHER, THE TIME EXTENSION IN THE CITED CASE MERELY PROVIDED THE GOVERNMENT WITH ADDITIONAL TIME TO CONSUMMATE THE CONTRACT WITHOUT THE RELINQUISHMENT OF ANY CONTRACT REQUIREMENTS.

WE RECOGNIZE THAT THE ADVERTISEMENT PROVIDED THAT THE POST OFFICE DEPARTMENT RESERVES THE RIGHT TO NEGOTIATE WITH THE LOW BIDDER AS TO ANY OR ALL RENTAL RATES OR OTHER TERMS AND CONDITIONS OF THE AGREEMENT TO LEASE; HOWEVER, SINCE THE PROCUREMENT WAS REQUIRED TO BE CONSUMMATED IN ACCORDANCE WITH ADVERTISING REQUIREMENTS, ANY NEGOTIATIONS THAT MIGHT OCCUR COULD NOT PROPERLY BE INCONSISTENT WITH THE RULES PERTAINING TO ADVERTISED PROCUREMENTS.

IN VIEW OF THE FOREGOING, WE CONCLUDE THAT THE AWARD MADE TO MR. PEARLMAN WAS NOT CONSISTENT WITH THE RULES PERTAINING TO FORMALLY ADVERTISED PROCUREMENTS AND THAT IT SHOULD THEREFORE BE CANCELED AND THE BID DEPOSIT REFUNDED. WE ARE NOT AWARE THAT MR. PEARLMAN WOULD BE ENTITLED TO FURTHER RELIEF UNDER THE REPORTED CIRCUMSTANCES.