B-170178, NOV 12, 1970, 50 COMP GEN 357

B-170178: Nov 12, 1970

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CONSIDERATION OF ITS BID SUBMITTED UNDER AN INVITATION FOR BIDS ON ELECTRONIC EQUIPMENT IS NOT PRECLUDED BECAUSE THE BID ACCEPTANCE PERIOD WAS EXTENDED ONLY AFTER THE ACCEPTANCE DATE HAD EXPIRED. AS NO OTHER BIDDER IS ELIGIBLE FOR AWARD. THE INTEGRITY OF THE COMPETITIVE SYSTEM IS NOT INVOLVED. THERE IS NO "COMPELLING REASON" TO REJECT THE SECOND LOW BID. 1970: REFERENCE IS MADE TO THE REPORT DATED OCTOBER 13. THE SUBJECT SOLICITATION WAS ISSUED ON MAY 8. SEVEN BIDS WERE RECEIVED AND OPENED ON JUNE 18. THE LOW BID WAS SUBMITTED BY DORSETT ELECTRONICS AND THE SECOND LOW BID WAS SUBMITTED BY EMC. WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS. IT IS REPORTED THAT THE FAA CONTRACTING OFFICER REVIEWED THE BID SUBMITTED BY DORSETT ELECTRONICS AND MADE THE DETERMINATION THAT THE BID.

B-170178, NOV 12, 1970, 50 COMP GEN 357

BIDS - ACCEPTANCE TIME LIMITATION - EXTENSION - PROTEST DETERMINATION WHERE THE SECOND LOW BIDDER, DURING THE PERIOD FOR ACCEPTING ITS BID, FILED A PROTEST WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE AS TO THE UNACCEPTABILITY OF THE LOW BID, CONSIDERATION OF ITS BID SUBMITTED UNDER AN INVITATION FOR BIDS ON ELECTRONIC EQUIPMENT IS NOT PRECLUDED BECAUSE THE BID ACCEPTANCE PERIOD WAS EXTENDED ONLY AFTER THE ACCEPTANCE DATE HAD EXPIRED, SINCE THE FILING OF THE PROTEST TOLLED THE EXPIRATION OF THE BID ACCEPTANCE PERIOD UNTIL AFTER THE RESOLUTION OF THE PROTEST. AS NO OTHER BIDDER IS ELIGIBLE FOR AWARD, THE INTEGRITY OF THE COMPETITIVE SYSTEM IS NOT INVOLVED; AND, THEREFORE, THERE IS NO "COMPELLING REASON" TO REJECT THE SECOND LOW BID. HOWEVER, IN FUTURE PROCUREMENTS SHOULD AN AWARD BE DELAYED UNTIL AFTER THE EXPIRATION OF A BID ACCEPTANCE PERIOD, THE PROCEDURES PRESCRIBED IN SECTIONS 1-2.404 1(C) AND 1-2.407-8(B)(2) OF THE FEDERAL PROCUREMENT REGULATIONS SHOULD BE FOLLOWED.

TO THE SECRETARY OF TRANSPORTATION, NOVEMBER 12, 1970:

REFERENCE IS MADE TO THE REPORT DATED OCTOBER 13, 1970, WITH ENCLOSURES, FROM THE ASSOCIATE ADMINISTRATOR FOR ADMINISTRATION, FEDERAL AVIATION ADMINISTRATION (FAA) REGARDING THE BEFORE-AWARD PROTEST OF ELECTRONICS AND MANUFACTURING CORPORATION (EMC), AGAINST AWARD TO ANY BIDDER OTHER THAN ITSELF UNDER SOLICITATION FOR BIDS (IFB) NO. WA5M-0-0748B1, ISSUED BY THE FAA, EQUIPMENT PURCHASE BRANCH, WASHINGTON, D.C. EMC ALSO PROTESTED ANY CANCELLATION OF THE SUBJECT INVITATION.

THE SUBJECT SOLICITATION WAS ISSUED ON MAY 8, 1970, FOR INSTRUMENT LANDING SYSTEM (ILS) REMOTE MONITOR RECEIVERS. SEVEN BIDS WERE RECEIVED AND OPENED ON JUNE 18, 1970. THE LOW BID WAS SUBMITTED BY DORSETT ELECTRONICS AND THE SECOND LOW BID WAS SUBMITTED BY EMC.

IN A TELEGRAM TO OUR OFFICE DATED JUNE 29, 1970, EMC PROTESTED THE AWARD OF A CONTRACT TO ANYONE OTHER THAN ITSELF. EMC CONTENDED THAT A LATE BID SUBMITTED BY DORSETT ELECTRONICS, THE LOW BIDDER, WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS.

IT IS REPORTED THAT THE FAA CONTRACTING OFFICER REVIEWED THE BID SUBMITTED BY DORSETT ELECTRONICS AND MADE THE DETERMINATION THAT THE BID, ALTHOUGH RECEIVED AFTER OPENING, WAS ELIGIBLE FOR CONSIDERATION BECAUSE OF A DELAY IN THE MAIL FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. A FURTHER DETERMINATION WAS MADE, HOWEVER, THAT THE DORSETT BID WAS NOT RESPONSIVE BECAUSE OF ITS FAILURE TO QUOTE A PRICE FOR ALL ITEMS AS REQUIRED BY THE SOLICITATION EVALUATION AND AWARD PROVISIONS.

THE SOLICITATION PROVIDED FOR A BID ACCEPTANCE PERIOD OF 60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD WAS INSERTED BY THE BIDDER. EMC INSERTED A BID ACCEPTANCE PERIOD OF 20 DAYS, WHICH IT WAS ENTITLED TO DO UNDER THE TERMS OF THE SOLICITATION. AS THE PROCUREMENT WAS BEING PROCESSED FOR AWARD TO EMC IN THE ESTIMATED AMOUNT OF $205,503, IT WAS NOTED THAT EMC'S 20-DAY BID ACCEPTANCE TIME HAD EXPIRED ON JULY 8, 1970. AT THE CONTRACTING OFFICER'S REQUEST MADE ON JULY 27, 1970, EMC, BY LETTER DATED JULY 29, 1970, EXTENDED ITS PERIOD FOR BID ACCEPTANCE UNTIL AUGUST 30, 1970. TELEGRAM OF SEPTEMBER 9, 1970, TO FAA, EMC ADVISED THAT ITS PROTEST TELEGRAM OF JUNE 29, 1970, TO OUR OFFICE HAD EXTENDED ITS BID ACCEPTANCE PERIOD UNTIL ITS PROTEST HAD BEEN RESOLVED; BUT IN ANY EVENT, UNTIL OCTOBER 30, 1970. SUBSEQUENTLY, BY TELEGRAM DATED OCTOBER 28, 1970, EMC EXTENDED ITS BID ACCEPTANCE PERIOD TO DECEMBER 30, 1970.

THE CONTRACTING OFFICER TAKES THE POSITION THAT NO AWARD CAN BE MADE TO EMC UNDER THE SUBJECT INVITATION BECAUSE THE 20-DAY ACCEPTANCE PERIOD PROVIDED IN ITS BID HAD EXPIRED AND THAT EMC'S PROTEST WITH OUR OFFICE DID NOT SERVE TO EXTEND THE 20-DAY ACCEPTANCE PERIOD. SINCE EMC'S BID ACCEPTANCE PERIOD EXPIRED ON JULY 8, 1970, THE CONTRACTING OFFICER IS OF THE OPINION THAT NEITHER THE PROTEST TO OUR OFFICE NOR THE CONTRACTING OFFICER'S SUBSEQUENT SOLICITATION OR ACCEPTANCE OF AN EXTENSION OF BID ACCEPTANCE TIME SERVED TO NEGATE THIS FACT OR CHANGE THE LEGAL POSITION OF THE PARTIES. WE ARE ADVISED THAT THE FAA INTENDS TO RESOLICIT THE REQUIREMENTS SINCE ALL BIDS HAVE EXPIRED.

WE DO NOT AGREE WITH THE CONTRACTING OFFICER'S POSITION. WE DO NOT CONSIDER EMC'S BID AS HAVING EXPIRED AT THE EXPIRATION OF ITS 20-DAY ACCEPTANCE PERIOD, SINCE PRIOR TO THE EXPIRATION OF SUCH PERIOD EMC SENT A TELEGRAM DATED JUNE 29, 1970, TO OUR OFFICE, PROTESTING "THE AWARD OF A CONTRACT UNDER FAA PROCUREMENT WA5M-0-0748B1 TO ANYONE OTHER THAN OURSELVES." WE CONSIDER THIS TELEGRAM AS EFFECTIVE TO EXTEND THE ACCEPTANCE PERIOD OF THIS BID UNTIL THE PROPRIETY OF THE PROTEST HAS BEEN RESOLVED. SEE B-154236, JUNE 26, 1964. FURTHER, THE RECORD INDICATES THAT EMC HAS GRANTED PERIODIC EXTENSIONS OF ITS BID ACCEPTANCE TIME TO DECEMBER 30, 1970. THE FACT THAT THE FIRST EXTENSION WAS NOT REQUESTED PRIOR TO THE EXPIRATION OF THE ORIGINAL 20 DAY PERIOD DOES NOT ALTER THE CONCLUSION WE REACH IN VIEW OF EMC'S PROTEST TELEGRAM TO OUR OFFICE OF JUNE 29, 1970.

MOREOVER, IT APPEARS THAT THE CONTRACTING OFFICER FAILED TO COMPLY WITH FPR SECS. 1-2.404-1(C) AND 1-2.407-8(B)(2), WHICH PROVIDE IN PERTINENT PART AS FOLLOWS:

(C) SHOULD ADMINISTRATIVE DIFFICULTIES BE ENCOUNTERED AFTER BID OPENING WHICH MAY DELAY AWARD BEYOND BIDDERS' ACCEPTANCE PERIODS, THE SEVERAL LOWEST BIDDERS SHOULD BE REQUESTED, BEFORE EXPIRATION OF THEIR BIDS, TO EXTEND THE BID ACCEPTANCE PERIOD (WITH CONSENT OF SURETIES, IF ANY) IN ORDER TO AVOID THE NEED FOR READVERTISEMENT.

(2) *** IN ADDITION, WHEN A PROTEST AGAINST THE MAKING OF AN AWARD IS RECEIVED AND THE CONTRACTING OFFICER DETERMINES TO WITHHOLD THE AWARD PENDING DISPOSITION OF THE PROTEST, THE BIDDERS WHOSE BIDS MIGHT BECOME ELIGIBLE FOR AWARD SHOULD BE REQUESTED, BEFORE EXPIRATION OF THE TIME FOR ACCEPTANCE OF THEIR BIDS, TO EXTEND THE TIME FOR ACCEPTANCE (WITH CONSENT OF SURETIES, IF ANY) TO AVOID THE NEED FOR READVERTISEMENT. *** .

UNDER THE PROVISIONS OF THIS REGULATION, THE CONTRACTING OFFICER SHOULD HAVE REQUESTED EMC TO EXTEND THE TIME FOR ACCEPTANCE OF ITS BID PRIOR TO THE EXPIRATION OF ITS INITIAL 20-DAY BID ACCEPTANCE PERIOD. WE SUGGEST THAT APPROPRIATE STEPS BE TAKEN TO ASSURE FUTURE COMPLIANCE WITH THE ABOVE -CITED REGULATIONS.

WE UNDERSTAND INFORMALLY THAT SEVERAL OF OUR DECISIONS ARE RELIED ON IN SUPPORT OF THE CONTRACTING OFFICER'S POSITION. THOSE DECISIONS REPORTED AT 42 COMP. GEN. 604 (1963), 46 ID. 371 (1961), AND 48 ID. 19 (1968), HAVE BEEN CAREFULLY CONSIDERED AND WE CONCLUDE THAT THEY ARE INAPPLICABLE HERE. NONE OF THE CITED DECISIONS INVOLVED PROTESTS WHICH WERE FILED IN OUR OFFICE DURING THE STATED ACCEPTANCE PERIODS OF THE BIDS. IN FACT, THE DECISION IN 42 COMP. GEN. 604 RESULTED FROM A REQUEST OF THE POST OFFICE DEPARTMENT FOR AN ADVANCE DECISION AS TO WHETHER AN AWARD SHOULD BE MADE TO A LOW BIDDER WHOSE 20-DAY BID ACCEPTANCE HAD EXPIRED. WE DISTINGUISHED THAT DECISION IN 46 COMP. GEN. 371-373 WHERE WE HELD:

*** WHILE WE QUESTION WHETHER THE TIME LIMITATION WAS SOLELY FOR THE PROTECTION OF THE BIDDER DURING THE PERIOD FROM BID OPENING UNTIL EXPIRATION OF THE ACCEPTANCE PERIOD SET OUT IN THE BIDS, IT IS CLEAR THAT EXPIRATION OF THE ACCEPTANCE PERIOD OPERATED TO DEPRIVE THE GOVERNMENT OF ANY RIGHT TO CREATE A CONTRACT BY ACCEPTANCE ACTION AND TO CONFER UPON THE BIDDER A RIGHT TO REFUSE TO PERFORM ANY CONTRACT AWARDED TO HIM THEREAFTER. THUS, SINCE THE ONLY RIGHT WHICH IS CONFERRED BY EXPIRATION OF THE ACCEPTANCE PERIOD IS CONFERRED UPON THE BIDDER, IT FOLLOWS THAT THE BIDDER MAY WAIVE SUCH RIGHT IF, FOLLOWING EXPIRATION OF THE ACCEPTANCE PERIOD, HE IS STILL WILLING TO ACCEPT AN AWARD ON THE BASIS OF THE BID AS SUBMITTED. WE HAVE SO HELD. B 143404, NOVEMBER 25, 1960; 42 COMP. GEN. 604, 606. *** .

THE DECISION IN 42 COMP. GEN. 604 INVOLVED A LOW BIDDER WHO ALSO OFFERED A 20-DAY ACCEPTANCE PERIOD. WE SAID IN THAT DECISION:

*** AN AWARD TO THAT BIDDER (THE LOW BIDDER), HOWEVER, RAISES THE QUESTION WHETHER THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD BEST BE SERVED IN THE PRESENT PROCUREMENT BY MAKING SUCH AWARD TO THE LOW BIDDER WHO PERMITTED ITS BID TO EXPIRE PRIOR TO GRANTING AN EXTENSION OR TO ARMSTRONG, THE NEXT LOW BIDDER, WHICH EXTENDED ITS BID ACCEPTANCE PERIOD BEFORE EXPIRATION OF ITS BID. *** .

SINCE NO OTHER BIDDER OTHER THAN EMC IS OTHERWISE ELIGIBLE FOR AWARD, THERE IS NOT INVOLVED HERE ANY COMPROMISE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM AS WAS THE CASE IN THE CITED DECISION.

THEREFORE, AND NOTWITHSTANDING ANY INDICATIONS TO THE CONTRARY IN PRIOR DECISIONS OF OUR OFFICE, WE CONCLUDE THAT THE FILING OF A BID PROTEST DURING THE ACCEPTANCE PERIOD OF THE BID HAS THE EFFECT OF TOLLING, UNTIL THE EFFECTIVE DATE OF OUR DECISION, THE BID ACCEPTANCE PERIOD OFFERED BY THE PROTESTANT.

IN VIEW OF THE FOREGOING CONSIDERATIONS, AND SINCE NO "COMPELLING REASON" EXISTS TO REJECT EMC'S BID AND CANCEL THE INVITATION (SEE 46 COMP. GEN. 371, 374), AN AWARD SHOULD BE MADE TO EMC UNDER THE SUBJECT SOLICITATION, IF PROPER IN OTHER RESPECTS.