B-147187, NOV. 6, 1961

B-147187, NOV. 6, 1961

TO ALAN JOHNSTONE, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1961, PROTESTING, ON BEHALF OF COE CONSTRUCTION, INC., AGAINST THE AWARD OF A CONTRACT TO SKINKER AND GARRETT, INC., FOR THE CONSTRUCTION OF A HEADQUARTERS ADMINISTRATION BUILDING FOR THE NATIONAL ARBORETUM OF THE DEPARTMENT OF AGRICULTURE.

IT APPEARS THAT SEVERAL MINUTES BEFORE THE OPENING OF BIDS AN INDIVIDUAL PURPORTING TO BE A REPRESENTATIVE OF SKINKER AND GARRETT, INC., APPROACHED THE CONTRACTING OFFICER'S REPRESENTATIVE IN THE BID OPENING ROOM AND INQUIRED IF HE COULD ALTER THE BID THAT HAD BEEN DEPOSITED EARLIER. WAS TOLD THAT TO ALTER THE BID HE WOULD HAVE TO EXECUTE A WITHDRAWAL, MODIFY THE BID, SEAL THE ENVELOPE AND RESUBMIT THE BID ALL BEFORE THE OPENING TIME. HE RESPONDED "SKIP IT" AND WALKED AWAY. NO FURTHER STATEMENT WAS MADE BY HIM UNTIL THE CONTRACTING OFFICER'S REPRESENTATIVE ANNOUNCED, AFTER ELEVEN BIDS HAD BEEN OPENED AND READ ALOUD, THAT THE BID OF SKINKER AND GARRETT, INC., WOULD BE READ NEXT. AT THAT POINT, HE CALLED OUT THAT HE WOULD HAVE TO WITHDRAW THE BID. THE CONTRACTING OFFICER'S REPRESENTATIVE LAID ASIDE THE UNOPENED BID OF SKINKER AND GARRETT, INC., AND PROCEEDED TO OPEN AND READ THE BALANCE OF THE BIDS.

IMMEDIATELY FOLLOWING THE READING OF THE LAST BID, THE PURPORTED REPRESENTATIVE CAME FORWARD AND FILLED OUT A WITHDRAWAL OF BID FORM, BUT WAS UNABLE TO ESTABLISH HIS RELATIONSHIP TO THE CORPORATION. THE CONTRACTING OFFICER'S REPRESENTATIVE DECIDED TO RETAIN THE UNOPENED BID INTACT AND LATER SOUGHT ADVICE OF LEGAL COUNSEL TO DETERMINE WHAT SHOULD BE DONE WITH THE BID IN THE CIRCUMSTANCES.

COUNSEL GAVE CONSIDERATION TO SECTION 1-2.304 OF THE FEDERAL PROCUREMENT REGULATIONS WHICH PROVIDES THAT:

"BIDS MAY BE MODIFIED OR WITHDRAWN BY WRITTEN OR TELEGRAPHIC NOTICE RECEIVED PRIOR TO THE EXACT TIME SET FOR OPENING. IN ADDITION, A BID MAY BE WITHDRAWN IN PERSON BY A BIDDER OR HIS AUTHORIZED REPRESENTATIVE, PROVIDING HIS IDENTITY IS MADE KNOWN AND HE SIGNS A RECEIPT FOR THE BID, BUT ONLY IF THE WITHDRAWAL IS PRIOR TO THE EXACT TIME SET FOR OPENING OF BIDS. * * *.'

SINCE THE REGULATIONS ARE CLEAR THAT SKINKER AND GARRETT, INC., COULD NOT WITHDRAW THE BID AFTER THE TIME SET FOR THE OPENING OF BIDS, HE DETERMINED THAT THE GOVERNMENT HAD NO ALTERNATIVE OTHER THAN TO OPEN AND CONSIDER THE BID ALONG WITH THE OTHERS RECEIVED. THE BID WAS THEREAFTER OPENED IN THE PRESENCE OF SEVERAL GOVERNMENT WITNESSES AND THE ABSTRACT OF BIDS WAS AMENDED TO INCLUDE THE LOW BID SUBMITTED BY SKINKER AND GARRETT, INC.

AS ABOVE INDICATED, THE REGULATIONS ARE SPECIFIC THAT A BID CANNOT BE WITHDRAWN IN PERSON AFTER THE TIME SET FOR THE OPENING OF BIDS. MOREOVER, IT IS FUNDAMENTAL THAT A BIDDER ON A GOVERNMENT CONTRACT MAY NOT, NOTWITHSTANDING THE GENERAL LAW ON THE SUBJECT, WITHDRAW HIS BID AFTER OPENING FOR THE PERIOD PROVIDED IN THE BID. REFINING ASSOCIATES V. UNITED STATES, 124 CT.CL. 115; SCOTT V. UNITED STATES, 44 CT.CL. 524. THEREFORE, THE ONLY QUESTION HERE IS WHETHER THE BID WAS WITHDRAWN BEFORE THE OPENING OF BIDS. WHILE, PRIOR TO THE OPENING, THE PURPORTED REPRESENTATIVE MIGHT HAVE BEEN OF A MIND TO ALTER THE BID, IT IS NOT CLEAR THAT HE INTENDED TO WITHDRAW IT. BUT EVEN IF THAT WAS HIS INTENTION AT THE TIME, HE DID NOT THEN FOLLOW THE PROCEDURAL STEPS THAT WERE EXPLAINED TO HIM AS NECESSARY TO ACCOMPLISH A WITHDRAWAL, BUT RATHER ABANDONED THE IDEA HE HAD BY HIS RESPONSE TO "SKIP IT" AND BY ALLOWING THE BID TO CONTINUE TO REMAIN IN THE GOVERNMENT'S POSSESSION. AND THE RESULT WOULD NOT HAVE BEEN ANY DIFFERENT IF A SPECIFIC REQUEST HAD BEEN MADE BEFORE THE BID OPENING, SINCE THE PURPORTED REPRESENTATIVE NEVER ESTABLISHED HIS IDENTITY AS A REPRESENTATIVE OF THE BIDDER AUTHORIZED TO ACT IN THAT CAPACITY, AND THE RELEASE OF THE BID TO HIM, ESPECIALLY WHERE THERE WAS SOME DOUBT AS TO HIS BONA FIDES, WOULD NOT HAVE BEEN PROPER.

OF COURSE, AS YOU HAVE SUGGESTED, AN IMPORTANT PRINCIPLE OF THE COMPETITIVE BIDDING SYSTEM IS THE PUBLIC OPENING OF ALL BIDS AT THE TIME AND PLACE STATED IN THE INVITATION. AND WHILE, IDEALLY, THE QUESTION WHETHER THE BID SHOULD HAVE BEEN OPENED SHOULD HAVE BEEN DETERMINED AT THE FORMAL BID OPENING, IT IS PERSUASIVE IN THIS CASE THAT THE BID HAD BEEN TIMELY RECEIVED, THAT IT HAD NEVER BEEN EFFECTIVELY WITHDRAWN PRIOR TO THE SPECIFIED OPENING TIME, AND THAT IT WAS AVAILABLE TO BE OPENED AT THE FORMAL OPENING. IN ADDITION, THE BID REMAINED SEALED UNTIL IT WAS FINALLY OPENED IN THE PRESENCE OF SEVERAL WITNESSES.

IN THESE CIRCUMSTANCES, WE ARE SATISFIED THAT THE AWARD RESULTED IN A VALID AND BINDING AGREEMENT AND WE KNOW OF NO LEGAL BASIS UPON WHICH WE COULD OBJECT THERETO. CONSEQUENTLY, NO FURTHER ACTION WOULD BE WARRANTED BY US. ..END :