B-168025, DECEMBER 15, 1969, 49 COMP. GEN. 395

B-168025: Dec 15, 1969

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THE LOW BIDDER WHO ALTHOUGH NOT PRESENT AT BID OPENING COMPLIED WITH THE REQUIREMENT WAS ENTITLED TO THE AWARD. FOR SHOULD HE HAVE FAILED TO EXECUTE THE CONTRACT OR FURNISH PERFORMANCE AND PAYMENT BONDS. THE BID BOND WOULD HAVE BECOME OPERATIVE UNDER THE "FIRM-BID RULE" TO THE EFFECT THAT EXCEPT FOR AN HONEST MISTAKE. A BID IS IRREVOCABLE FOR A REASONABLE TIME AFTER BID OPENING. BIDDER'S PRESENCE AT BID OPENING THE FAILURE OF A BIDDER TO BE PRESENT AT BID OPENING IF REQUIRED BY THE INVITATION IS NOT A DEVIATION THAT AFFECTS PRICE. 1969: REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 1. THE SUBJECT IFB WAS ISSUED ON SEPTEMBER 11. THE SCHEDULED BID OPENING WAS FOR 10.30 A.M. THE STANDARD FORM 20 OF THE INVITATION CONTAINED THE FOLLOWING REQUIREMENT: *** THE CONTRACT AWARD AND NOTICE TO PROCEED WILL BE COMPLETED WITHIN FOUR (4) HOURS AFTER BID OPENING OR BEFORE C.O.B.

B-168025, DECEMBER 15, 1969, 49 COMP. GEN. 395

BIDS -- ACCEPTANCE TIME LIMITATION -- REASONABLENESS THE REQUIREMENT FOR THE PRESENCE OF BIDDER PRINCIPALS TO ACCEPT AN AWARD, SIGN THE CONTRACT, EXECUTE BONDS AND AGREE TO FURNISH PERFORMANCE AND PAYMENT BONDS WITHIN FOUR HOURS OF BID OPENING UNDER AN INVITATION FOR DEMOLITION WORK THAT PROVIDES FOR CONTRACT AWARD WITHIN FOUR HOURS OF BID OPENING, DOES NOT MEAN PRESENCE AT BID OPENING, BUT MERELY TO BE PRESENT WITHIN FOUR HOURS OF BID OPENING. THEREFORE, THE LOW BIDDER WHO ALTHOUGH NOT PRESENT AT BID OPENING COMPLIED WITH THE REQUIREMENT WAS ENTITLED TO THE AWARD, FOR SHOULD HE HAVE FAILED TO EXECUTE THE CONTRACT OR FURNISH PERFORMANCE AND PAYMENT BONDS, THE BID BOND WOULD HAVE BECOME OPERATIVE UNDER THE "FIRM-BID RULE" TO THE EFFECT THAT EXCEPT FOR AN HONEST MISTAKE, A BID IS IRREVOCABLE FOR A REASONABLE TIME AFTER BID OPENING. CONTRACTS - - SPECIFICATIONS -- DEVIATIONS -- BIDDER'S PRESENCE AT BID OPENING THE FAILURE OF A BIDDER TO BE PRESENT AT BID OPENING IF REQUIRED BY THE INVITATION IS NOT A DEVIATION THAT AFFECTS PRICE, QUANTITY, OR QUALITY OF THE WORK TO BE PERFORMED, AND, THEREFORE, THE REQUIREMENT WOULD BE ONE FOR THE BENEFIT OF THE GOVERNMENT AND NOT THE BIDDER.

TO SMITH, CURRIE AND HANCOCK, DECEMBER 15, 1969:

REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 1, 1969, AND SUBSEQUENT CORRESPONDENCE PROTESTING, ON BEHALF OF THE BARLETT CONSTRUCTION COMPANY (BARTLETT), THE AWARD OF A CONTRACT TO THE LOW BIDDER UNDER INVITATION FOR BIDS (IFB) NO. DC4-090029, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), ATLANTA, GEORGIA, FOR DEMOLITION WORK ON THE THIRD FLOOR OF THE UNITED STATES POST OFFICE, COURTHOUSE AND CUSTOMHOUSE IN MIAMI, FLORIDA.

THE SUBJECT IFB WAS ISSUED ON SEPTEMBER 11, 1969, UNDER A 100 PERCENT SMALL BUSINESS SET ASIDE. THE SCHEDULED BID OPENING WAS FOR 10.30 A.M. E.D.T., OCTOBER 1, 1969, IN ROOM NO. 1623, FEDERAL BUILDING, MIAMI, FLORIDA. THE STANDARD FORM 20 OF THE INVITATION CONTAINED THE FOLLOWING REQUIREMENT:

*** THE CONTRACT AWARD AND NOTICE TO PROCEED WILL BE COMPLETED WITHIN

FOUR (4) HOURS AFTER BID OPENING OR BEFORE C.O.B. OCTOBER 1. PRINCIPALS

OF BIDDERS MUST, THEREFORE, BE PRESENT TO ACCEPT THE AWARD, SIGN THE

CONTRACT, AND EXECUTE ACCEPTABLE BONDS.

IN ADDITION, STANDARD FORM 21 PROVIDED THAT ALL BIDDERS WOULD BE SUBJECT TO THE FOLLOWING COMMITMENT:

THE UNDERSIGNED AGREES THAT, UPON WRITTEN ACCEPTANCE OF THIS BID, MAILED OR OTHERWISE FURNISHED HE WILL WITHIN FOUR (4) HOURS AFTER OPENING OF BIDS OF THE PRESCRIBED FORMS EXECUTE STANDARD FORM 23, CONSTRUCTION CONTRACT, AND GIVE PERFORMANCE AND PAYMENT BONDS ON GOVERNMENT STANDARD FORMS WITH GOOD AND SUFFICIENT SURETY.

THE REQUIREMENT TO FURNISH BONDS APPEARS IN PARAGRAPH 2-5 OF SECTION 2, SPECIAL CONDITIONS, AS FOLLOWS:

2-5 BONDS

2-5-1 BID GUARANTEE IN THE AMOUNT OF 20 PERCENT OF THE AMOUNT OF THE BID. PERFORMANCE BOND WILL BE REQUIRED IN AN AMOUNT EQUAL TO 100 PERCENT OF THE BID FOUR (4) HOURS AFTER BID OPENING ON OCTOBER 1, 1969. PAYMENT BOND WILL BE REQUIRED FOUR (4) HOURS AFTER BID OPENING ON OCTOBER 1, 1969 IN THE AMOUNT AS FOLLOWS:

CONTRACTS OVER $2,000 AND NOT OVER $1,000,000; 50 PERCENT OF CONTRACT.

ON OCTOBER 1, 1969, BIDS WERE OPENED AS SCHEDULED. THE BID OF GEORGE E. JENSEN, CONTRACTORS, INC. (JENSEN), IN THE AMOUNT OF $27,031, WHICH INCLUDED BASE BID AND ALTERNATES 1 AND 2, WAS THE LOWEST OF THE FOUR BIDS RECEIVED. BARTLETT SUBMITTED THE SECOND LOW BID. ALTHOUGH A REPRESENTATIVE OF THE LOW BIDDER WAS NOT PRESENT AT BID OPENING, GSA REPORTS THAT HE DID APPEAR WITHIN FOUR HOURS THEREAFTER AND ACCEPTED THE AWARD, SIGNED THE CONTRACT, AND FURNISHED PERFORMANCE AND PAYMENT BONDS. THE NOTICE TO PROCEED WAS ISSUED AT THE SAME TIME AND THE TIME FOR COMPLETION OF THE DEMOLITION WORK WAS 45 CALENDAR DAYS BEGINNING ON OCTOBER 2, 1969. THE DEMOLITION WORK WAS IN CONNECTION WITH A RECENT FIRE IN THE COURTHOUSE AND CUSTOMHOUSE AND IT WAS NECESSARY THAT THIS PHASE OF THE WORK BE COMPLETED AT THE EARLIEST POSSIBLE DATE IN ORDER TO SCHEDULE THE BUILDING OF URGENTLY REQUIRED COURTROOM FACILITIES WHICH WOULD BE PERFORMED UNDER ANOTHER PHASE OF CONSTRUCTION.

YOUR PROTEST IS BASED ON THE CONTENTION THAT THE PRESENCE OF THE BIDDERS AT BID OPENING WAS PART OF THE BID ITSELF AND THAT APPEARANCE OF THE LOW BIDDER'S REPRESENTATIVE AFTER BID OPENING RENDERED THE BID LATE WHICH GAVE THE LOW BIDDER AN OPTION TO CHOOSE BETWEEN REJECTING OR EXECUTING THE CONTRACT WITHOUT INCURRING LEGAL LIABILITY. YOU ARGUE THAT THE SURETY ON THE BID BOND COULD LIKEWISE ESCAPE LIABILITY IF THE LOW BIDDER SHOULD ELECT NOT TO EXECUTE THE CONTRACT. YOU ASSERT THAT THE PHYSICAL PRESENCE OF THE BIDDER AT BID OPENING WAS REQUIRED BY THE APPLICABLE CLAUSES OF THE INVITATION, BY A MIMEOGRAPHED LETTER, AND BY A TELEPHONE CALL FROM BARTLETT TO THE CONTRACTING OFFICER CONCERNING THE NECESSITY OF HAVING SOMEONE PHYSICALLY THERE INSTEAD OF BEING ON SHORT-NOTICE CALL. YOUR LETTER ALSO QUOTES EXTENSIVELY FROM 40 COMP. GEN. 321 (1960) TO SUPPORT YOUR POSITION.

THE RULE OF GOVERNMENT CONTRACT LAW THAT A BID IS IRREVOCABLE FOR A REASONABLE TIME AFTER BID OPENING IS KNOWN AS THE "FIRM-BID RULE." SEE W. A. SCOTT V UNITED STATES, 44 CT. CL. 524 (1909); REFINING ASSOCIATES, INC. V UNITED STATES, 124 CT. CL. 115 (1953); ASPR 10 101.4. AFTER THE BIDS HAVE BEEN OPENED A BIDDER CANNOT WITHDRAW HIS BID, UNLESS HE CAN PROVE THAT THE DESIRE TO WITHDRAW IS DUE SOLELY TO AN HONEST MISTAKE AND THAT NO FRAUD IS INVOLVED. SEE UNITED STATES V LIPMAN, 122 F. SUPP. 284, 287 (1954). SEE, ALSO, SECTION 1-2.304(A) AND (B) OF THE FEDERAL PROCUREMENT REGULATIONS, WHICH PROVIDES, AMONG OTHER THINGS, THAT BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE OR IN PERSON, BUT ONLY IF THE WITHDRAWAL IS PRIOR TO THE EXACT TIME SET FOR BID OPENING. IN THIS CASE, THE JENSEN BID COULD NOT HAVE BEEN WITHDRAWN AFTER 10:30 A.M. E.D.T., OCTOBER 1, 1969, WITHOUT INCURRING LIABILITY ON THE BID BOND SUBMITTED TO THE GOVERNMENT, REGARDLESS OF A JENSEN REPRESENTATIVE'S PRESENCE OR ABSENCE IN ROOM NO. 1623. THE RECORD DISCLOSES THAT THE BID BOND WAS PROPERLY EXECUTED BY THE UNITED STATES FIDELITY AND GUARANTY CO. OF BALTIMORE, MARYLAND, AS SURELY ON BEHALF OF JENSEN. LIABILITY ON SUCH A BID GUARANTEE BECOMES OPERATIVE WHEN THE SUCCESSFUL BIDDER WITHDRAWS HIS BID WITHIN THE TIME FIXED FOR ACCEPTANCE OR IF AFTER ACCEPTANCE HE FAILS TO ENTER INTO A CONTRACT OR FURNISH THE REQUIRED BONDS WITHIN THE TIME SPECIFIED. SEE UNITED STATES V CONTI, 119 F. 2D 652 (1941); CAROL D. HEERS, ET AL. V UNITED STATES, 165 CT. CL. 294 (1964); 31 COMP. GEN. 477 (1952); 27 COMP. GEN. 436 (1948).

NONE OF THE PROVISIONS OF STANDARD FORM 20 AND 21 CALLED FOR THE BIDDER'S PRESENCE AT BID OPENING. ALL THE APPLICABLE PROVISIONS REQUIRED THAT THE SUCCESSFUL BIDDER "BE PRESENT TO ACCEPT THE AWARD, SIGN THE CONTRACT AND EXECUTE ACCEPTABLE BONDS" WITHIN 4 HOURS AFTER OPENING OF BIDS. YOU ALSO REFER TO A MINMEOGRAPHED LETTER WHICH ALLEGEDLY REQUIRED BIDDERS TO BE PRESENT AT BID OPENING. WE ASSUME THAT YOU REFER TO A LETTER DATED SEPTEMBER 12, 1969, WHICH WAS SENT TO ALL SOLICITED BIDDERS WITH THE BID DOCUMENTS. HOWEVER, THAT LETTER DID NOT REQUIRE THE PHYSICAL PRESENCE OF THE BIDDERS AT THE BID OPENING, BUT ONLY THAT THE "LOW RESPONSIVE BIDDER FURNISH THE USUAL PERFORMANCE AND PAYMENT BONDS AND EXECUTE A CONTRACT WITHIN FOUR HOURS AFTER BID OPENING."

A MEMORANDUM IN THE GSA REPORT DISCLOSES THAT MR. JOHN BARTLETT OF THE BARTLETT CONSTRUCTION COMPANY CALLED AN OFFICIAL OF THE GSA BUILDING MANAGEMENT AID AT APPROXIMATELY 10:10 A.M. ON THE BID OPENING DATE AND INQUIRED IF IT WAS NECESSARY FOR HIM TO BE PRESENT AT THE OPENING OF BIDS SINCE HE COULD COME INTO THE GSA OFFICE WITHIN A SHORT TIME. ACCORDING TO THIS MEMORANDUM, MR. BARTLETT WAS ADVISED THAT IT WAS NOT ABSOLUTELY NECESSARY TO BE PRESENT AT THE OPENING OF BIDS, BUT THAT HIS PRESENCE WOULD BE PREFERRED.

IN REFERRING TO 40 COMP. GEN. 321 (1960), YOU QUOTE A PART OF OUR DECISION, CONTAINED ON PAGE 324, TO SUPPORT YOUR PROPOSITION THAT THE FAILURE OF JENSEN TO BE PRESENT AT BID OPENING WAS PREJUDICIAL TO OTHER BIDDERS AND SHOULD NOT HAVE BEEN WAIVED. ASSUMING, ARGUENDO, THAT THE INVITATION REQUIRED BIDDERS TO BE PHYSICALLY PRESENT AT 10:30 A.M., E.D.T., ON OCTOBER 1, 1969, IN ROOM 1623, FEDERAL BUILDING, MIAMI, FLORIDA, WE NOTE THAT SUCH REQUIREMENT WOULD HAVE BEEN SOLELY FOR THE BENEFIT OF THE GOVERNMENT, BECAUSE DEVIATION FROM IT DOES NOT AFFECT BID PRICE, QUANTITY OR QUALITY OF THE DEMOLITION WORK TO BE PERFORMED. THIS REGARD, OUR DECISION CITED BY YOU HELD THAT THE REJECTION OF THE LOW BID AS NONRESPONSIVE DUE TO A MINOR DEVIATION WAS IMPROPER. SIMILARLY, FAILURE TO BE PRESENT AT BID OPENING WOULD BE A MINOR DEVIATION. IN THE DECISION WE SAID, IMMEDIATELY FOLLOWING YOUR QUOTATION:

*** HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BID. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT EFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE. FOR THESE REASONS YOUR PROTEST IS DENIED.