B-169821, AUG. 12, 1970

B-169821, AUG. 12, 1970

BID PROTEST -- SUBMISSION TIME -- LATE BID DENIAL OF PROTEST AGAINST REJECTION OF LATE BID FOR INSTALLATION OF LAUNDRY EQUIPMENT FOR ST. ELIZABETH'S HOSPITAL. A PERIOD OF 18 DAYS BETWEEN ISSUANCE OF IFB AND OPENING OF BIDS WHICH TIME WAS NOT EXTENDED AT REQUEST OF BIDDER WHO STATED HE WAS GOING TO A CONVENTION AND DID NOT HAVE TIME TO WORK ON PROCUREMENT MAY NOT BE REGARDED AS TOO SHORT A PERIOD OF TIME NOR MAY CONTRACTING OFFICER'S REFUSAL TO EXTEND BE REGARDED AS UNWARRANTED. A BIDDER WHO APPEARED AT BID OPENING OFFICE FIVE MINUTES BEFORE OPENING AND REQUESTED 10 MINUTE EXTENSION THAT WAS REFUSED MAY NOT HAVE BID WHICH HE BEGAN PREPARING AND SUBMITTED TWO MINUTES AFTER BID OPENING TIME CONSIDERED.

TO ALLEN AND VICKERS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 17 AND LETTERS OF MAY 21 AND 23, 1970, PROTESTING THE REJECTION OF YOUR BID AND THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. 207-70, ISSUED BY SAINT ELIZABETHS HOSPITAL, WASHINGTON, D.C.

THE SUBJECT IFB, ISSUED ON APRIL 24, 1970, SOLICITED BIDS FOR FURNISHING AND INSTALLING A COMBINATION WASHER/EXTRACTOR, COMMERCIAL SIDELOADING TYPE, DRY WEIGHT CAPACITY OF 400 POUNDS, EQUIPPED WITH VIBRATION MOUNT. THE IFB PROVIDED FOR RECEIPT OF BIDS UNTIL 3 P.M. ON MAY 12, 1970.

YOU CONTEND THAT THE TIME ALLOWED FOR SUBMITTING BIDS WAS UNREASONABLY SHORT, AND THAT YOUR VERBAL REQUESTS FOR EXTENSION OF THE BID OPENING WERE DENIED BY THE PROCUREMENT OFFICE. YOU ALSO CONTEND THAT THE REFUSAL OF THE CONTRACTING OFFICER TO ACCEPT YOUR BID AFTER THE TIME SET FOR BID OPENING WAS AN IMPROPER PROCEDURE IN THE CIRCUMSTANCES.

WITH REGARD TO YOUR FIRST CONTENTION THAT THE IFB DID NOT PROVIDE FOR SUFFICIENT TIME TO PREPARE YOUR BID, YOUR ATTENTION IS DIRECTED TO SECTION 1-2.202-1(C) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) WHICH PROVIDES IN PART:

"(C) MINIMUM BIDDING TIME. AS A GENERAL RULE, BIDDING TIME SHALL BE NOT LESS THAN 15 CALENDAR DAYS WHEN PROCURING STANDARD COMMERCIAL ARTICLES AND SERVICES AND NOT LESS THAN 30 CALENDAR DAYS WHEN PROCURING OTHER THAN STANDARD COMMERCIAL ARTICLES OR SERVICES. THIS RULE NEED NOT BE OBSERVED IN SPECIAL CIRCUMSTANCES, OR WHERE THE URGENCY FOR THE SUPPLIES OR SERVICES DOES NOT PERMIT SUCH DELAY. *** " IN THIS RESPECT, IT IS REPORTED THAT AS THE HOSPITAL WAS PLANNING TO LAUNDER EMPLOYEES' UNIFORMS AS SOON AFTER JULY 1 AS POSSIBLE, THE BIDDING TIME WAS LIMITED TO 18 DAYS AS STATED. AMENDMENTS TO THE IFB WERE BASED ON WAGE RATE DETERMINATIONS WHICH DID NOT REQUIRE ADDITIONAL BID PREPARATION TIME. WHILE IT IS REPORTED THAT YOU DID REQUEST THE CONTRACTING OFFICER TO EXTEND BID OPENING SINCE YOU WERE GOING TO A CONVENTION AND WOULD NOT HAVE TIME TO WORK ON THE PROCUREMENT, THE CONTRACTING OFFICER DID NOT CONSIDER THIS AS A JUSTIFIABLE REASON FOR EXTENDING THE BID OPENING TIME IN THE INVITATION. BASED ON THE FOREGOING, AND SINCE 18 DAYS BETWEEN THE ISSUANCE OF THE IFB AND OPENING OF BIDS WAS PROVIDED, WE FIND NO REASON TO DISAGREE WITH THE ACTION OF THE PROCUREMENT OFFICE IN NOT EXTENDING THE BID OPENING DATE. SEE B-161064, MAY 2, 1967.

WITH REGARD TO THAT PART OF YOUR PROTEST CONCERNING THE REFUSAL OF THE CONTRACTING OFFICER TO ACCEPT YOUR BID AFTER THE TIME SET FOR BID OPENING, IT IS REPORTED THAT ON MAY 12, 1970, AT APPROXIMATELY 2:55 P.M. A REPRESENTATIVE OF YOUR COMPANY APPEARED AT THE OFFICE OF THE BID OPENING OFFICER AND REQUESTED THAT THE BID OPENING TIME BE EXTENDED BY 10 MINUTES IN ORDER TO ALLOW HIM TO PREPARE A BID. SUCH REQUEST WAS DENIED; HOWEVER, THE REPRESENTATIVE BEGAN WRITING AS THE CONTRACTING OFFICER WAS PREPARING TO OPEN BIDS. AT 3 P.M. EXACTLY, AS DETERMINED BY THE BID OPENING OFFICER, BIDS WERE OPENED. AT 3:02 P.M. YOUR REPRESENTATIVE TOSSED AN UNSEALED BID ON THE DESK. AT 3:05 P.M. THE BID OPENING WAS TERMINATED AND AT APPROXIMATELY 3:10 P.M. YOUR LATE BID WAS RETURNED TO YOUR REPRESENTATIVE.

FPR SEC. 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. FPR SEC. 1-2.303-5 READS AS FOLLOWS:

"A LATE HAND-CARRIED BID, OR ANY OTHER LATE BID, NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD." IN THIS RESPECT, FPR SEC. 1 -2,303-1 DEFINES A LATE BID AS ONE RECEIVED AFTER THE EXACT TIME SET FOR OPENING OF BIDS.

REGARDING THE REFUSAL OF THE PROCUREMENT OFFICE TO ACCEPT YOUR LATE BID, IN B-130889, MARCH 26, 1957, AND IN B-137550, DECEMBER 18, 1958, THERE WERE CONSIDERED SITUATIONS WHERE BIDDERS' REPRESENTATIVES HAND DELIVERED BIDS AFTER THE TIME SET FOR THE FINAL RECEIPT OF BIDS BUT BEFORE ANY BIDS WERE OPENED. IN THE FIRST CITED CASE, THE BID WAS DELIVERED 2 MINUTES AFTER THE DEADLINE. IN THE SECOND CASE IT WAS DELIVERED 5 MINUTES AFTER THE DEADLINE. THE TIME IN THIS CASE MAY BE LESS THAN THE TIME IN EITHER CASE, BUT THAT FACT IS NOT SIGNIFICANT. IN B-137550 THE FOLLOWING WAS QUOTED WITH APPROVAL FROM B-130889:

"IT HAS BEEN CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. THE PURPOSE OF THE REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

"UNDER THE EXPRESS TERMS OF THE INVITATION, HAND CARRIED BIDS WERE REQUIRED TO BE SUBMITTED PRIOR TO 10:00 A.M. YOUR BID WAS NOT SUBMITTED PRIOR TO THE TIME SPECIFIED. YOUR LACK OF KNOWLEDGE OF THE OTHER BIDS AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT FOR CONSIDERATION. THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT SUCH CONSIDERATIONS TO AFFECT OR ALTER THE FIXED AND EXACT TIME CLEARLY STATED IN AN INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE SYSTEM. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY 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, AND SINCE YOUR BID WAS BEING PREPARED AFTER THE TIME PREPARATIONS WERE UNDERTAKEN TO OPEN BIDS TIMELY RECEIVED, WE FIND NO REASON TO DISAGREE WITH THE ACTION TAKEN IN NOT ACCEPTING YOUR LATE BID. 38 COMP. GEN. 234, 235 (1958); 47 ID. 784, 787 (1968). 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 A VIOLATION OF SUCH RULES. 17 COMP. GEN. 554 (1938).

ACCORDINGLY, YOUR PROTEST IS DENIED.