B-161622, AUG. 29, 1967

B-161622: Aug 29, 1967

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PROTESTANT WHO CONTENDS THAT REJECTION OF LATE BID WAS DUE TO FAILURE OF GOVT. PERSONNEL TO FURNISH REQUESTED INFORMATION AND REFERS TO CIRCUMSTANCES AS "BALL GAME" IS ADVISED THAT RECORD DOES NOT SHOW THAT GOVT. SINCE SPECIFICATIONS WERE ADEQUATE FOR FORMAL ADVERTISING THERE APPEARS TO HAVE BEEN SUFFICIENT TIME FOR BIDDERS TO PREPARE AND SUBMIT BIDS SINCE THIS WAS SECOND TIME ITEM WAS PROCURED. DETERMINATION TO CANCEL TWO STEP PROCUREMENT AND ISSUE INVITATION WAS JUSTIFIED. TO CONKLIN INSTRUMENT CORP.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10. YOU STATE THAT THE TRUE CAUSE OF THE LATE ARRIVAL OF YOUR BID WAS THE FAILURE OF GOVERNMENT PERSONNEL TO PROVIDE REQUESTED INFORMATION CONCERNING THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT OR TO NOTIFY YOU OF THE LACK OF SUCH INFORMATION ON MAY 4.

B-161622, AUG. 29, 1967

BIDS - LATE - PREPARATION TIME DECISION TO CONKLIN INSTRUMENT CORP. RE REQUEST FOR RECONSIDERATION OF DECISION B-161622, 8-7-67, WHICH DENIED PROTEST AGAINST ACTIONS OF NAVY SUPPLY CENTER INCIDENT TO LATE BID. PROTESTANT WHO CONTENDS THAT REJECTION OF LATE BID WAS DUE TO FAILURE OF GOVT. PERSONNEL TO FURNISH REQUESTED INFORMATION AND REFERS TO CIRCUMSTANCES AS "BALL GAME" IS ADVISED THAT RECORD DOES NOT SHOW THAT GOVT. INTENDED TO POSTPONE BID OPENING. WITH REFERENCE TO CHARACTERISTICS OF COMPETITIVE BID SYSTEM AS "BALL GAME" RULES APPLY EQUALLY TO GOVT. AND TO BIDDER AND FORMAL ADVERTISING PROCEDURES MAY NOT PROPERLY BE CONSIDERED AS A GAME. SINCE SPECIFICATIONS WERE ADEQUATE FOR FORMAL ADVERTISING THERE APPEARS TO HAVE BEEN SUFFICIENT TIME FOR BIDDERS TO PREPARE AND SUBMIT BIDS SINCE THIS WAS SECOND TIME ITEM WAS PROCURED. DETERMINATION TO CANCEL TWO STEP PROCUREMENT AND ISSUE INVITATION WAS JUSTIFIED. DECISION OF 8-7 67 AFFIRMED.

TO CONKLIN INSTRUMENT CORP.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1967, REQUESTING, IN EFFECT, RECONSIDERATION OF OUR DECISION B-161622 DATED AUGUST 7, 1967, WHICH DENIED YOUR PROTEST AGAINST THE ADMINISTRATIVE ACTIONS TAKEN UNDER INVITATION FOR BIDS NO. N00189-67-B-0256, ISSUED ON APRIL 6, 1967, BY THE NAVAL SUPPLY CENTER, NORFOLK. YOU STATE THAT THE TRUE CAUSE OF THE LATE ARRIVAL OF YOUR BID WAS THE FAILURE OF GOVERNMENT PERSONNEL TO PROVIDE REQUESTED INFORMATION CONCERNING THE TECHNICAL REQUIREMENTS OF THE PROCUREMENT OR TO NOTIFY YOU OF THE LACK OF SUCH INFORMATION ON MAY 4, 1967. YOU CONTEND THAT THIS CONSTITUTED AN ERROR BY THE GOVERNMENT PERSONNEL INVOLVED, AND YOU IMPLY THAT THE GOVERNMENT SHOULD BE PREJUDICED THEREBY RATHER THAN YOUR COMPANY, REFERRING TO THE CIRCUMSTANCES AS A "BALL GAME" AND STATING THAT YOUR INTEGRITY HAS BEEN IMPUGNED. THE PERTINENT TECHNICAL AND FACTUAL BACKGROUND OF YOUR PROTEST WAS SET FORTH IN THE DECISION OF AUGUST 7, 1967, AND THOSE DETAILS NEED NOT BE REPEATED HERE.

THE INVITATION WAS ISSUED ON APRIL 7, 1967, WITH AN OPENING DATE OF MAY 10, 1967. WE WERE ADVISED THAT YOUR COMPANY REQUESTED AN EXTENSION OF BID OPENING TIME ON MAY 4, 1967, AND THAT THE REQUEST WAS REFERRED TO THE REQUIRING ACTIVITY ON THE SAME DAY. ON THE FOLLOWING DAY, MAY 5, 1967, THE REQUIRING ACTIVITY ADVISED THAT EXTENSION COULD NOT BE GRANTED BECAUSE THE MATERIAL WAS URGENTLY NEEDED. ON MAY 10, 1967, YOU WERE ADVISED TELEPHONICALLY THAT THE BID OPENING TIME COULD NOT BE EXTENDED.

A NECESSARY AND IMPORTANT PRINCIPLE OF THE COMPETITIVE BID SYSTEM OF PROCUREMENT IS THE PUBLIC OPENING OF ALL BIDS AT THE TIME AND PLACE STATED IN THE INVITATION. WHEN BIDS ARE NOT SO OPENED THERE IS SERIOUS QUESTION AS TO THE PROPRIETY OF THE TRANSACTION. SEE 34 COMP. GEN. 395, 398. HAD THE PROCURING AGENCY FOUND IT FEASIBLE, IT COULD HAVE ISSUED A FORMAL AMENDMENT TO THE INVITATION POSTPONING THE OPENING TIME TO PROVIDE THE ADDITIONAL TIME YOU REQUESTED. HOWEVER, THIS WAS A MATTER OF ADMINISTRATIVE DISCRETION AS TO WHICH, UNDER THE RECORD BEFORE US, WE WILL NOT SUBSTITUTE OUR JUDGMENT. THERE IS NOTHING IN THE RECORD TO INDICATE THAT ANY OFFICIAL ACTION WAS CONTEMPLATED BY THE PROCURING AGENCY TOWARDS POSTPONING BID OPENING TIME ALTHOUGH THIS MAY NOT HAVE BEEN MADE ENTIRELY CLEAR TO YOU BY THE PROCUREMENT OFFICE IN THE TELEPHONE CONVERSATION OF MAY 4, 1967.

WITH REFERENCE TO YOUR CHARACTERIZATION OF THE COMPETITIVE BID SYSTEM AS A "BALL GAME," THE RULES OF WHICH SHOULD APPLY EQUALLY TO BOTH THE GOVERNMENT AND THE BIDDER, FORMAL ADVERTISING PROCUREMENT PROCEDURES MAY NOT PROPERLY BE CONSIDERED AS A GAME. WE HAVE CONSISTENTLY HELD THAT IN THE CONSIDERATION OF THE VAST VARIETY OF PROBLEMS WHICH ARISE IN CONNECTION WITH FORMAL ADVERTISING, THE PUBLIC INTEREST REQUIRES THEIR RESOLUTION, NOT IN TERMS OF RITUALISTIC ADHERENCE TO THE FORM OR MECHANICS OF FORMAL ADVERTISING, BUT BY TAKING THAT COURSE OF ACTION WHICH, UNDER ALL THE CIRCUMSTANCES OF THE PARTICULAR CASE, WILL BEST PROTECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. SEE B-149878, NOVEMBER 20, 1962. SINCE THE SPECIFICATIONS INVOLVED WERE CONSIDERED TO BE ADEQUATE FOR FORMAL COMPETITIVE PURPOSES, WE SHARE THE ADMINISTRATIVE VIEW THAT SUFFICIENT TIME WAS ALLOWED ALL BIDDERS TO PREPARE AND SUBMIT A BID IN A TIMELY MANNER PARTICULARLY SINCE THIS WAS THE SECOND TIME THAT THE ITEM WAS BEING PROCURED.

WITH REFERENCE TO YOUR CHARGE THAT YOUR INTEGRITY WAS IMPUGNED, IT IS NOTED THAT IN THE PORTION OF THE CONTRACTING OFFICER'S STATEMENT QUOTED IN OUR DECISION OF AUGUST 7, IT IS CONCEDED THAT THE AREAS OF AMBIGUITY IN THE SPECIFICATIONS OF THE ORIGINAL TWO-STEP REQUEST FOR TECHNICAL PROPOSALS SHOULD HAVE BEEN CLARIFIED BY THE GOVERNMENT DURING THE EVALUATION PERIOD, THUS INDICATING THE CORRECTNESS OF THE POSITION TAKEN BY YOUR COMPANY. SUBSEQUENT TO EVALUATION, CANCELLATION OF THE TWO-STEP PROCUREMENT AND ISSUANCE OF AN INVITATION UNDER THE USUAL COMPETITIVE PROCEDURES WAS FELT TO BE THE BEST SOLUTION, AND AS TO THESE ACTIONS, WE FIND NO BASIS TO DISAGREE WITH THE PROCUREMENT AGENCY SINCE IT IS CHARGED WITH THE RESPONSIBILITY OF MAINTAINING THE COMPETITIVE INTEGRITY OF THE PROCUREMENT, ESPECIALLY SINCE UNDER ASPR 2-502, TWO-STEP ADVERTISING NO LONGER WAS FEASIBLE. IN VIEW THEREOF, OUR DECISION OF AUGUST 7, 1967, IS AFFIRMED.

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