B-213028, FEB 28, 1984

B-213028: Feb 28, 1984

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THE SOLICITATION WAS ISSUED ON AUGUST 10. AN AMENDMENT WAS ISSUED THAT SIGNIFICANTLY EXPANDED THE SCOPE OF WORK. BY AUGUST 30 (THE DAY BEFORE THE BIDS WERE TO BE OPENED). THE AMENDMENT WAS ISSUED ON AUGUST 31 AND TOLICA'S BID WAS RECEIVED THE SAME DAY. TOLICA'S BID REMAINED UNOPENED UNTIL THE EXTENDED BID OPENING DATE WHEN IT WAS OPENED ALONG WITH TWO ADDITIONAL BIDS RECEIVED BY THAT DATE. TOLICA CONTENDS THAT THE CONTRACTING OFFICER SHOULD HAVE OPENED ITS BID AS ORIGINALLY SCHEDULED ON AUGUST 31 TO DETERMINE WHETHER THE PRICE WAS REASONABLE. IF ITS PRICE WAS UNREASONABLY HIGH. THE SOLICITATION COULD THEN HAVE BEEN CANCELED AND REBID. TOLICA INSISTS THAT THERE IS NO PROVISION IN THE FEDERAL PROCUREMENT REGULATIONS (FPR) ALLOWING THE CONTRACTING OFFICER TO REFUSE TO OPEN BIDS RECEIVED AT THE TIME SET FOR BID OPENING.

B-213028, FEB 28, 1984

DIGEST: CONTRACTING OFFICER DID NOT ABUSE HIS DISCRETION WHERE HE EXTENDED THE BID OPENING DATE 1 WEEK IN ORDER TO ENHANCE COMPETITION BY PERMITTING OFFERORS SUFFICIENT TIME TO CAREFULLY CONSIDER AND PREPARE THEIR BIDS AFTER SIGNIFICANT AMENDMENT OF SOLICITATION SCOPE OF WORK.

TOLICA CONSTRUCTION CO.:

TOLICA CONSTRUCTION CO. (TOLICA) PROTESTS THE AWARD OF A CONTRACT BY THE UNITED STATES FOREST SERVICE FOR THE PLACEMENT OF CHIP SEAL ON TWO ROADS IN LANE COUNTY, OREGON, UNDER INVITATION FOR BIDS (IFB) NO. R6-18 83-754.

THE SOLICITATION WAS ISSUED ON AUGUST 10, 1983, WITH THE BID OPENING SCHEDULED FOR AUGUST 31. ON AUGUST 12, AN AMENDMENT WAS ISSUED THAT SIGNIFICANTLY EXPANDED THE SCOPE OF WORK, BUT PROVIDED NO EXTENSION OF THE OPENING DATE. BY AUGUST 30 (THE DAY BEFORE THE BIDS WERE TO BE OPENED), NO BIDS HAD BEEN RECEIVED. FEARING THAT COMPETITION HAD BEEN UNDULY RESTRICTED BY THE SHORT ADVERTISING PERIOD, THE CONTRACTING OFFICER DECIDED TO AMEND THE IFB TO POSTPONE THE OPENING DATE 1 WEEK - TO SEPTEMBER 7. THE AMENDMENT WAS ISSUED ON AUGUST 31 AND TOLICA'S BID WAS RECEIVED THE SAME DAY. TOLICA'S BID REMAINED UNOPENED UNTIL THE EXTENDED BID OPENING DATE WHEN IT WAS OPENED ALONG WITH TWO ADDITIONAL BIDS RECEIVED BY THAT DATE.

TOLICA CONTENDS THAT THE CONTRACTING OFFICER SHOULD HAVE OPENED ITS BID AS ORIGINALLY SCHEDULED ON AUGUST 31 TO DETERMINE WHETHER THE PRICE WAS REASONABLE. IF ITS PRICE WAS UNREASONABLY HIGH, THE SOLICITATION COULD THEN HAVE BEEN CANCELED AND REBID. TOLICA INSISTS THAT THERE IS NO PROVISION IN THE FEDERAL PROCUREMENT REGULATIONS (FPR) ALLOWING THE CONTRACTING OFFICER TO REFUSE TO OPEN BIDS RECEIVED AT THE TIME SET FOR BID OPENING.

WE DENY THE PROTEST.

FEDERAL PROCUREMENT REGULATIONS SEC. 1-2.207(A) (1964 ED. AMEND. 139) PROVIDES:

"IF AFTER ISSUANCE OF INVITATIONS FOR BIDS BUT BEFORE THE TIME SET FOR OPENING OF BIDS IT BECOMES NECESSARY TO MAKE CHANGES IN QUANTITIES, SPECIFICATIONS, DELIVERY SCHEDULES, OPENING DATE, ETC., OR TO CORRECT A DEFECTIVE OR AMBIGUOUS INVITATION, SUCH CHANGES SHALL BE ACCOMPLISHED BY ISSUANCE OF AN AMENDMENT TO THE INVITATION FOR BIDS. ..."

THE REGULATION CLEARLY AUTHORIZES THE AMENDMENT OF AN IFB WHEN IT BECOMES NECESSARY TO CHANGE THE OPENING DATE. SUCH A CHANGE WAS NECESSARY HERE BECAUSE THE CONTRACTING OFFICER FEARED THAT THE BID PERIOD ALLOWED BY THE IFB WAS INSUFFICIENT TO PERMIT FULL AND FREE COMPETITION. SEE 41 U.S.C. SEC. 253(A) (1976).

WE HAVE DENIED PROTESTS OF OPENING DATE EXTENSIONS. SEE SOLAR RESOURCES INC., B-193264, FEBRUARY 9, 1979, 79-1 CPD 95; B-175965, NOVEMBER 16, 1972; B-160539, JANUARY 31, 1967. IN SOLAR RESOURCES, THE CONTRACTING AGENCY CONTENDED THAT THE EXTENSION WAS JUSTIFIED BECAUSE SEVERAL PROSPECTIVE OFFERORS INFORMED IT THAT THEY HAD INSUFFICIENT TIME TO PREPARE A PROPOSAL. WE CONCLUDED IN THAT CASE:

"... WHERE AN EXTENSION OF THE OPENING DATE IS GRANTED, THE EFFECT OF WHICH IS TO ENHANCE COMPETITION BY PERMITTING OFFERORS PLENTY OF TIME TO CAREFULLY CONSIDER AND REVIEW THEIR PRICES AND PROPOSALS, THERE IS NO BASIS FOR ANY OBJECTIONS BY OUR OFFICE WHOSE PRIMARY CONCERN IS THE UNDUE RESTRICTION IN SOLICITATIONS RATHER THAN THE INCREASED OPPORTUNITY FOR COMPETITION."

AS IN THAT CASE, THE CONTRACTING OFFICER HERE WAS CONCERNED THAT SOLICITATION HAD BEEN UNDULY RESTRICTIVE OF COMPETITION BECAUSE OF THE SHORT BID PERIOD. FURTHER, TOLICA'S BID PRICE WAS NOT EXPOSED PRIOR TO THE EXTENDED BID OPENING DATE AND, LIKE OTHER PROSPECTIVE BIDDERS, TOLICA HAD THE ADVANTAGE OF THE ADDITIONAL TIME TO CONSIDER ITS BID. IN THESE CIRCUMSTANCES, WE FIND THE CONTRACTING OFFICER'S ACTION REASONABLE.

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