B-202607, JUL 17, 1981

B-202607: Jul 17, 1981

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AWARD MAY BE MADE ON BASIS OF BID REVISED AFTER INITIAL EXPIRATION ONLY IF SUCH AWARD IS NOT PREJUDICIAL TO OTHER BIDDERS. BID OPENING WAS DECEMBER 22. IT IS THE CONTRACTING OFFICER'S POSITION THAT ARSCO ALLOWED ITS BID TO EXPIRE DESPITE THE FEBRUARY 12. ARSCO APPARENTLY EMPHASIZES THE PRICE VERIFICATION EXTENSION FOR THE PURPOSE OF ILLUSTRATING THAT ITS CONDUCT WAS SUCH AS TO INDICATE IT INTENDED THAT THE BID BE KEPT ALIVE. EVEN ASSUMING GSA DID NOT REQUEST AN EXTENSION THE OBLIGATION IS ON THE BIDDER TO CHECK WITH THE CONTRACTING OFFICER BEFORE ITS BID EXPIRES IF THE BIDDER HAS A CONTINUING INTEREST IN BEING CONSIDERED FOR THE AWARD. NUMEROUS DECISIONS BY THIS OFFICE HAVE RECOGNIZED THAT A BIDDER MAY REVIVE ITS EXPIRED BID WHERE THE BIDDER DID NOT LIMIT ITS ACCEPTANCE PERIOD TO ONE OF SHORTER DURATION THAN THE OTHER BIDDERS.

B-202607, JUL 17, 1981

DIGEST: 1. WHERE CONTRARY ASSERTIONS BY PROTESTER AND AGENCY CONSTITUTE ONLY EVIDENCE AND AGENCY HAS SUPPORTED CONTENTIONS WITH WRITTEN RECORDS AND AFFIDAVITS, PROTESTER HAS NOT MET BURDEN OF ESTABLISHING ITS CASE. 2. AWARD MAY BE MADE ON BASIS OF BID REVISED AFTER INITIAL EXPIRATION ONLY IF SUCH AWARD IS NOT PREJUDICIAL TO OTHER BIDDERS.

ARSCO INTERNATIONAL:

ARSCO INTERNATIONAL PROTESTS THE AWARD OF A CONTRACT UNDER SOLICITATION NO. 10PR-ZJS-5090 ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) TO ANY PARTY WHOSE BID INVOLVES A HIGHER PRICE THAN THE BID MADE BY ARSCO. THE PROTESTER CONTENDS GSA SHOULD ACCEPT ITS EXPIRED BID. WE DENY THE PROTEST.

BID OPENING WAS DECEMBER 22, 1980 AND ARSCO'S BID SPECIFIED AN ACCEPTANCE PERIOD OF 60 DAYS. BY A LETTER DATED FEBRUARY 12, 1981, GSA NOTIFIED BIDDERS THAT THEIR BIDS WOULD EXPIRE FEBRUARY 20, 1981 AND REQUESTED AN EXTENSION OF THE ACCEPTANCE PERIOD. ALL OF THE BIDDERS, EXCEPT ARSCO, EXTENDED THEIR BIDS PRIOR TO EXPIRATION. IT IS THE CONTRACTING OFFICER'S POSITION THAT ARSCO ALLOWED ITS BID TO EXPIRE DESPITE THE FEBRUARY 12, 1981, LETTER AND DESPITE REPEATED TELEPHONE CALLS URGING PROTESTER TO GRANT AN EXTENSION, AND THEREFORE SHOULD NOT BE CONSIDERED FOR THE CONTRACT. ARSCO CLAIMS IT NEVER RECEIVED THE LETTER OF FEBRUARY 12, 1981, NOR ANY OTHER COMMUNICATION FROM GSA REQUESTING ADDITIONAL TIME TO MAKE THE FINAL BID SELECTION. IT FURTHER ALLEGES IT RECEIVED AN ORAL EXTENSION, UNTIL APRIL 6, 1981, WITHIN WHICH TO SUBMIT VERIFICATION OF CERTAIN PRICES. ARSCO APPARENTLY EMPHASIZES THE PRICE VERIFICATION EXTENSION FOR THE PURPOSE OF ILLUSTRATING THAT ITS CONDUCT WAS SUCH AS TO INDICATE IT INTENDED THAT THE BID BE KEPT ALIVE. BASED ON PROTESTER'S CONDUCT AND THE ALLEGED FAILURE OF GSA TO REQUEST AN EXTENSION, ARSCO CLAIMS AWARD SHOULD BE MADE TO IT.

THIS OFFICE HAS SAID THAT WHERE CONFLICTING STATEMENTS OF THE PROTESTER AND THE CONTRACTING AGENCY CONSTITUTE THE ONLY AVAILABLE EVIDENCE, THE PROTESTER HAS NOT MET THE BURDEN OF AFFIRMATIVELY PROVING ITS CASE. DEL RIO FLYING SERVICE, INC., B-197448, AUGUST 6, 1980, 80-2 CPD 92. REGARDING ARSCO'S CONTENTION THAT GSA FAILED TO REQUEST AN EXTENSION, THE RECORD CONTAINS NOTHING MORE THAN PROTESTER'S ASSERTIONS. THE AGENCY, ON THE OTHER HAND, OFFERS A COPY OF THE FEBRUARY 12, 1981 LETTER AND AGENCY RECORDS OF TELEPHONE CONVERSATIONS WITH THE PROTESTER (INCLUDING AN AFFIDAVIT OF THE GSA EMPLOYEE INVOLVED). IN OUR OPINION, ARSCO HAS FAILED TO OFFER SUFFICIENT EVIDENCE TO SHOW IT NEVER RECEIVED AN EXTENSION REQUEST FROM GSA.

EVEN ASSUMING GSA DID NOT REQUEST AN EXTENSION THE OBLIGATION IS ON THE BIDDER TO CHECK WITH THE CONTRACTING OFFICER BEFORE ITS BID EXPIRES IF THE BIDDER HAS A CONTINUING INTEREST IN BEING CONSIDERED FOR THE AWARD. COMP.GEN. 604 (1963). ARSCO NEGLECTED TO DO SO.

ARSCO FURTHER CLAIMS IT REQUESTED AND RECEIVED AN ORAL EXTENSION BEYOND THE 60-DAY ACCEPTANCE PERIOD WITHIN WHICH TO VERIFY PRICES. THE PROTESTER AGAIN OFFERS NOTHING MORE THAN AN ASSERTION THAT IT RECEIVED AN ORAL EXTENSION FROM THE AGENCY. THE GOVERNMENT CONTENDS IT ASKED ARSCO FOR VERIFICATION AND ADDITIONAL INFORMATION ON FEBRUARY 3, 1981, AND NEVER RECEIVED AN ANSWER FROM THE PROTESTER. THUS, ALTHOUGH THIS OFFICE RECOGNIZES THAT THE INTENTION OF A BIDDER TO EXTEND THE LIFE OF ITS BID MAY BE INFERRED FROM THE BIDDER'S CONDUCT, SURPLUS TIRE SALES, 53 COMP.GEN. 737 (1974), 74-1 CPD 161, ARSCO HAS FAILED TO PROVE IT IMPLIEDLY EXTENDED THE BID ACCEPTANCE PERIOD.

NUMEROUS DECISIONS BY THIS OFFICE HAVE RECOGNIZED THAT A BIDDER MAY REVIVE ITS EXPIRED BID WHERE THE BIDDER DID NOT LIMIT ITS ACCEPTANCE PERIOD TO ONE OF SHORTER DURATION THAN THE OTHER BIDDERS, 42 COMP.GEN. 604, SUPRA., AND WHERE THE BIDDER DID NOT EXHIBIT BEHAVIOR WHICH WOULD ADVERSELY AFFECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. VETERANS ADMINISTRATION - REQUEST FOR ADVANCE DECISION, 57 COMP.GEN. 228 (1978), 78-1 CPD 59. THE LATTER INVOLVES A SITUATION WHEREIN A BIDDER INITIALLY REFUSES TO EXTEND AND LATER GRANTS AN EXTENSION AS ITS OWN INTERESTS DICTATE. IN EITHER INSTANCE, FOR THE AGENCY TO ACCEPT THE BID WOULD BE PREJUDICIAL TO THE OTHER BIDDERS. THIS IS SO BECAUSE CONTROLLING THE GOVERNMENT'S LEGAL ABILITY TO ACCEPT THE BID IN A MANNER AT VARIANCE WITH THE TERMS OFFERED BY OTHER BIDDERS LIMITS THE BIDDER'S EXPOSURE TO THE UNCERTAINTIES OF THE MARKETPLACE AND REDUCES THE RISK. IN THE PRESENT CASE, ALTHOUGH THE PROTESTER INITIALLY OFFERED THE SAME ACCEPTANCE PERIOD AS THE OTHER BIDDERS, IT DID NOT ANSWER THE AGENCY'S FEBRUARY 3, 1981, REQUEST TO EXTEND VERIFICATION. IT WAS NOT UNTIL THREE WEEKS AFTER EXPIRATION THAT ARSCO MADE AN UNEQUIVOCAL ASSERTION OF ITS BELIEF THAT IT WAS STILL IN CONSIDERATION FOR THE AWARD. IN LIGHT OF THE CONCLUSION THAT ARSCO DID NOT SUSTAIN THE BURDEN OF PROOF EITHER THAT THE AGENCY FAILED TO REQUEST AN ACCEPTANCE PERIOD EXTENSION OR THAT ARSCO HAD IMPLIEDLY EXTENDED THE ACCEPTANCE PERIOD, WE BELIEVE THAT ARSCO'S CONDUCT IS ANALOGOUS TO THE PROTESTER IN VETERANS ADMINISTRATION, SUPRA. THUS, GSA ACTED PROPERLY UNDER THE RATIONALE OF THAT CASE.

THE PROTEST IS DENIED.