B-148972, JUNE 15, 1962, 41 COMP. GEN. 807

B-148972, JUNE 15, 1962, 41 COMP. GEN. 807

BIDS - LATE - PREMATURE OPENING--- BIDS - LATE - PREMATURE OPENING A BIDDER WHO, TWO MINUTES BEFORE THE TIME SCHEDULED FOR BID OPENING HAD HIS LOW BID FOR A COMBINATION OF CONSTRUCTION PROJECTS REJECTED AS LATE BY THE CONTRACTING OFFICER WHO, BECAUSE HIS WATCH WAS FOUR MINUTES FAST, HAD BEGUN TO READ THE FIRST BID--- SUBSEQUENTLY DETERMINED TO BE THE FOURTH LOW BID ON ONLY ONE PROJECT--- MAY NOT BE REGARDED AS HAVING AN UNFAIR ADVANTAGE OVER OTHER BIDDERS BY REASON OF THE READING OF BIDS AND SUCH BID, ACCEPTED BY THE CONTRACTING OFFICER 30 MINUTES AFTER BID OPENING, SHOULD NOT BE PRECLUDED FROM CONSIDERATION UNDER THE INVITATION INSTRUCTION, WHICH PROVIDED THAT NO BIDS WOULD BE CONSIDERED IF RECEIVED AFTER THE READING OF BIDS HAD BEGUN. TO REJECT A LOW BID WHICH WAS NOT ACCEPTED UNTIL 30 MINUTES AFTER OPENING BUT WHICH IS SHOWN TO BE THE SAME ONE THE BID OPENING OFFICER HAD REJECTED AS LATE TWO MINUTES BEFORE THE SCHEDULED TIME FOR BID OPENING BECAUSE HE HAD PREMATURELY COMMENCED THE READING OF THE BIDS WOULD NOT BE FAIR OR EQUITABLE TO THE BIDDER WHO WAS PLACED IN THE POSITION OF HAVING SUBMITTED A LATE BID BY THE ACTIONS OF THE GOVERNMENT, AND IN THE ABSENCE OF ANY EVIDENCE SHOWING AN ADVANTAGE OVER OTHER BIDDERS OR IMPRUDENCE IN PRICING THE LOW BID SHOULD BE CONSIDERED AS VALIDLY TENDERED PRIOR TO BID OPENING.

TO THE SECRETARY OF THE NAVY, JUNE 15, 1962:

REFERENCE IS MADE TO LETTERS OF MAY 24 AND JUNE 4, 1962, FROM THE DIRECTOR, CONTRACT ADMINISTRATION, BUREAU OF YARDS AND DOCKS, IN REPLY TO OUR REQUEST OF MAY 23, 1962, FOR A REPORT ON THE PROTEST FILED BY UHLHORN INTERNATIONAL, S.A., AGAINST THE REFUSAL OF THE OFFICER IN CHARGE OF CONSTRUCTION, CARIBBEAN, U.S. NAVAL STATION, SAN JUAN, PUERTO RICO, TO CONSIDER ITS BID UNDER SPECIFICATION NOS. 31724/61 AND 31727/61.

SPECIFICATION NO. 31724/61 INVITED BIDS FOR THE CONSTRUCTION OF RADIO FACILITIES AT THE NAVAL RADIO STATION AT SABANA SECA, PUERTO RICO, AND SPECIFICATION NO. 31727/61 INVITED BIDS ON A SIMILAR JOB AT GALETA ISLAND, CANAL ZONE. THE INVITATIONS ADVISED BIDDERS THAT BOTH PROJECTS WERE BEING ADVERTISED SIMULTANEOUSLY; THAT BIDS ON THE PUERTO RICO PROJECT ALONE WERE LIMITED TO SMALL BUSINESSES; BUT THAT BIG BUSINESS COULD BID ON THE CANAL ZONE PROJECT SEPARATELY OR IN COMBINATION WITH THE PUERTO RICO PROJECT. THE INVITATIONS FURTHER PROVIDED THAT BIDS WOULD BE RECEIVED "UNTIL 3:00 P.M. AST, 1 MAY 1962 (LATER EXTENDED TO MAY 17, 1962) AT THE AREA PUBLIC WORKS OFFICE, CARIBBEAN, ADMINISTRATION BUILDING ANNEX, WING NO. 1, U.S. NAVAL STATION, SAN JUAN, PUERTO RICO AND AT THAT TIME PUBLICLY OPENED.'

THE UNDISPUTED FACTS IN THE MATTER ARE AS FOLLOWS: LIEUTENANT COMMANDER S. J. KOONCE, CEC, U.S. NAVY, CONDUCTED THE BID OPENING. LIEUTENANT COMMANDER KOONCE HAD SET HIS WATCH BY WESTERN UNION TIME, WHICH WAS FOUR MINUTES AHEAD OF THE CORRECT TIME. AT A TIME WHEN HIS WATCH SHOWED 3:00 P.M. AND THE NAVAL OBSERVATORY SYNCHRONIZED CLOCK ON THE WALL OF THE BID OPENING ROOM SHOWED 2:56 P.M; LIEUTENANT COMMANDER KOONCE ANNOUNCED THAT IT WAS 3:00 P.M. AND ASKED WHETHER THERE WERE ANY ADDITIONAL BIDS. IN THE ABSENCE OF A RESPONSE HE PROCEEDED WITH THE OPENING OF BIDS ON THE PUERTO RICO PROJECT. HE WAS IN THE PROCESS OF READING THE FIRST BID ITEM OF THE FIRST BID OPENED ON THAT PROJECT WHEN REPRESENTATIVES OF UHLHORN ENTERED THE BID ROOM, WHICH WAS ON THE SECOND FLOOR, AND ATTEMPTED TO SUBMIT A BID. AT THAT TIME, THE CLOCK ON THE WALL SHOWED THE CORRECT TIME OF 2:58 P.M. AND LIEUTENANT COMMANDER KOONCE'S WATCH SHOWED 3:02 P.M. LIEUTENANT COMMANDER KOONCE STATED IT WAS AFTER 3:00 P.M. AND HE THEREFORE COULD NOT ACCEPT THE UHLHORN BID, DESPITE THE FACT THE WALL CLOCK SHOWED 2:58 P.M. HE REFUSED TO ACCEPT AND HELD THE UHLHORN BID UNOPENED AND INSTRUCTED ITS REPRESENTATIVES TO BE SEATED OR TO LEAVE THE ROOM. THEY THEREUPON TOOK SEATS WITH THE BID STILL IN THEIR POSSESSION.

AFTER COMPLETION OF THE READING OF THE OTHER BIDS, THE UHLHORN REPRESENTATIVES AGAIN APPROACHED LIEUTENANT COMMANDER KOONCE AND STATED THEY WISHED TO PROTEST HIS REFUSAL TO ACCEPT THEIR BID. HE AGAIN REFUSED TO ACCEPT THE BID, WHEREUPON THE BID WAS OPENED AND SHOWN TO HIM. LIEUTENANT COMMANDER KOONCE SAW THE AMOUNT THEREON OF WHAT APPEARED TO BE THE COMBINATION BID WHICH WAS TWO MILLION, NINE HUNDRED AND SOME THOUSAND DOLLARS. THE LOWEST BID WHICH HAD BEEN READ WAS IN EXCESS OF $3,000,000 FOR THE COMBINED PROJECTS. THE UHLHORN REPRESENTATIVES THEN LEFT WITH THEIR BID, WENT TO PICK UP MR. UHLHORN AT HIS HOTEL, AND RETURNED WITH MR. UHLHORN APPROXIMATELY 30 MINUTES LATER.

UPON THEIR RETURN, FURTHER CONVERSATION ON THE MATTER WAS HAD, AND AFTER RECEIVING ADVICE FROM THE AREA PUBLIC WORKS OFFICER, THE UHLHORN BID AND SOME 45 PAGES OF WORKSHEETS WHICH MR. UHLHORN HAD BROUGHT WITH HIM WERE SEALED AND KEPT IN THE CUSTODY OF THE NAVY. SUBSEQUENT EXAMINATION OF THE BID REVEALS THAT THE COMBINATION BID IS IN THE AMOUNT OF $2,959,400 AND THAT THE WORKSHEETS COINCIDE WITH AND SUPPORT THAT FIGURE.

THE POSITION TAKEN BY THE BID OFFICER IS THAT HE HAD AUTHORITY TO DECLARE WHEN THE TIME FOR BID OPENING ARRIVED AND THAT THIS IS CONCLUSIVE ON ALL BIDDERS, REGARDLESS OF THE ACTUAL TIME. IN THIS CONNECTION PARAGRAPH 2- 402.1 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT THE OFFICIAL DESIGNATED AS THE BID OPENING OFFICER SHALL DECIDE WHEN THE TIME SET FOR THE BID OPENING HAS ARRIVED, AND SHALL SO DECLARE TO THOSE PRESENT. THE INSTRUCTIONS TO BIDDERS IN THIS CASE PROVIDED ALSO THAT NO BID WOULD BE CONSIDERED IF RECEIVED BY THE NAVY AFTER THE READING OF THE BIDS HAD BEGUN.

WE DO NOT CONSTRUE THE PROVISIONS OF SECTION 2-402.1, ASPR, AS VESTING IN THE BID OPENING OFFICER ANY AUTHORITY TO ARBITRARILY DETERMINE A BID CLOSING TIME EARLIER THAN THE HOUR SPECIFIED IN THE INVITATION FOR BIDS, AT LEAST IN ANY CASE WHERE SUCH ACTION OPERATES TO THE DETRIMENT OF A PROSPECTIVE BIDDER. NOR ARE WE CALLED UPON IN THIS CASE TO DECIDE WHAT SHOULD BE DONE IN A CASE WHERE SIGNIFICANT BID INFORMATION HAD BEEN REVEALED BY THE PREMATURE READING OF BIDS BEFORE THE ATTEMPTED TENDER OF ANOTHER BID. ONLY ONE BID HAD BEEN READ IN THE PRESENT CASE, THAT OF A COMPANY WHICH DID NOT BID ON THE COMBINED PROJECTS, AND WHOSE BID WAS THE FOURTH LOWEST ON THE ONE PROJECT ON WHICH IT DID BID. IT IS THEREFORE APPARENT THAT UHLHORN HAD NO POSSIBILITY OF ADVANTAGE BY REASON OF THE FACT THAT THE READING OF BIDS HAD BEGUN, AND WE THEREFORE DO NOT REGARD THE PROVISION IN THE INSTRUCTIONS TO BIDDERS AS PRECLUDING CONSIDERATION OF ITS BID UNDER THE PARTICULAR CIRCUMSTANCES IN THIS CASE.

THERE IS ANOTHER ASPECT OF THE MATTER WHICH REQUIRES DISCUSSION. IT HAS BEEN SUGGESTED THAT THE BID TENDERED BY UHLHORN AT 2:58 P.M. IS NOT NECESSARILY THE BID WHICH IS NOW IN THE POSSESSION OF THE NAVY. ON THIS POINT, THE AFFIDAVITS OF ALL THREE UHLHORN REPRESENTATIVES STATE UNEQUIVOCALLY THAT THE BID TENDERED BEFORE 3:00 P.M. WAS HELD IN MR. CABAL'S HAND IN FULL VIEW OF ALL THOSE PRESENT DURING THE ENTIRE TIME BIDS WERE BEING READ, THAT THIS BID IS THE BID WHICH WAS SHOWN TO LIEUTENANT COMMANDER KOONCE AT THE CONCLUSION OF BID OPENING, AND THAT THIS IS THE BID NOW IN THE POSSESSION OF THE NAVY. IT IS, OF COURSE, UNFORTUNATE THAT LIEUTENANT COMMANDER KOONCE REFUSED TO ACCEPT CUSTODY OF THE UHLHORN BID EVEN THOUGH HE WOULD NOT OPEN IT. HOWEVER, WE BELIEVE THERE IS AMPLE EVIDENCE TO DEMONSTRATE BEYOND DOUBT THAT THE BID TENDERED IS THE BID NAVY NOW HAS. WE HAVE AN AFFIDAVIT FROM A SUBCONTRACTOR, MR. PARCE, WHO HAD SUBMITTED SUBCONTRACT BIDS TO UHLHORN AND THREE OTHER CONTRACTORS, IN WHICH HE STATES THAT HE WAS INVITED TO ACCOMPANY THE UHLHORN COMBINATION BID FILLED IN IN THEIR HOTEL ROOM AND THAT THE BID DISPLAYED TO LIEUTENANT COMMANDER KOONCE WAS THE SAME BID AND THE SAME AMOUNT. ADDITIONALLY IT MAY BE NOTED THAT THE AMOUNT OF THE BID IS CORROBORATED BY 45 SHEETS OF WORK PAPERS WHICH WERE PRESENTED TO THE NAVY WITHIN 30 MINUTES AFTER THE CONCLUSION OF BID OPENING. THERE IS, OF COURSE, NO DOUBT THAT THE BID NOW IN NAVY'S POSSESSION IS THE SAME BID WHICH WAS SHOWN TO LIEUTENANT COMMANDER KOONCE, SINCE THE BID WAS SEEN BY HIM AND HE REMEMBERS THAT IT WAS IN THE AMOUNT OF TWO MILLION, NINE HUNDRED AND SOME THOUSAND DOLLARS.

IT HAS BEEN FURTHER ARGUED THAT UHLHORN HAD AN ADVANTAGE OVER OTHER BIDDERS IN THAT, AFTER THE BID OFFICER HAD REFUSED TO ACCEPT ITS BID, IT HAD THE CHOICE AFTER HEARING ALL OTHER BIDS TO DECIDE WHETHER OR NOT AGAIN TO ATTEMPT TO HAVE ITS BID CONSIDERED. IN THIS CONNECTION IT MUST BE REMEMBERED THAT THE POSITION IN WHICH UHLHORN WAS PLACED WAS NOT OF ITS OWN CHOOSING BUT ONE WHICH RESULTED FROM THE ACTIONS OF GOVERNMENT PERSONNEL. FURTHERMORE, DUE TO THE RELATIVELY SMALL DIFFERENCE BETWEEN THE UHLHORN BID AND THE NEXT LOWEST BIDDER, IT IS OBVIOUS THAT NO CONSIDERATIONS OF POSSIBLE IMPRUDENCE IN PRICING EXISTED. IN ALL THE CIRCUMSTANCES OF THIS CASE, WE DO NOT FEEL THAT IT WOULD BE FAIR OR EQUITABLE TO RULE OUT CONSIDERATION OF THE UHLHORN BID MERELY BECAUSE OF THE FACT THAT THE GOVERNMENT DID NOT FINALLY ACCEPT CUSTODY THEREOF UNTIL AFTER BIDS HAD BEEN READ.

FOR THE REASONS GIVEN IT IS OUR CONCLUSION THAT THE BID OF UHLHORN INTERNATIONAL WAS VALIDLY TENDERED TO THE GOVERNMENT PRIOR TO THE BID OPENING HOUR AND SHOULD BE CONSIDERED FOR AWARD.

WITH RESPECT TO THE PROTEST FILED ON BEHALF OF MISSILE SITES, INC. AND ASSOCIATES, THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE ATTORNEYS FOR THAT FIRM.