B-157598, OCT. 15, 1965

B-157598, OCT. 15, 1965

TO BEATTY BROS., CORPORATION:

WE REFER TO YOUR TELEGRAM OF AUGUST 29, 1965, AND SUBSEQUENT CORRESPONDENCE INCLUDING YOUR LETTER OF SEPTEMBER 1, 1965, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO EDROW ENGINEERING COMPANY UNDER INVITATION FOR BIDS NO. NBY-60174. THIS INVITATION WAS ISSUED ON JULY 7, 1965, BY THE SOUTHWEST DIVISION, BUREAU OF YARDS AND DOCKS, 1220 PACIFIC HIGHWAY, SAN DIEGO, CALIFORNIA, FOR THE CONSTRUCTION OF AN AIRCRAFT SYSTEM TRAINING BUILDING FOR THE MARINE CORPS AIR FACILITY, SANTA ANA, CALIFORNIA.

THE INVITATION PROVIDED THAT:

"SEALED BIDS IN DUPLICATE FOR THE WORK DESCRIBED HEREIN WILL BE RECEIVED UNTIL 2:00 P.M., PACIFIC DAYLIGHT SAVING TIME (1:00 P.M., PACIFIC STANDARD TIME) 11 AUGUST 1965 AT SOUTHWEST DIVISION, BUREAU OF YARDS AND DOCKS, 1220 PACIFIC HIGHWAY, SAN DIEGO, CALIFORNIA 92132 * * *.'

CLAUSE 1 OF THE INVITATION ENTITLED "BIDS" PROVIDED:

"* * * THE OFFICER WHOSE DUTY IT IS TO OPEN THE BIDS WILL DECIDE WHEN THE SPECIFIED TIME HAS ARRIVED, AND NO BID (OR MODIFICATION OR WITHDRAWAL OF BID) WILL BE CONSIDERED IF RECEIVED BY THE NAVY AFTER THE READING OF THE BIDS HAS BEGUN EXCEPT AS PROVIDED IN PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS, STANDARD FORM 22. DISCREPANCIES, AMBIGUITIES, ERRORS, OR OMISSIONS TO THE BIDDING DATA SHOULD BE REPORTED PROMPTLY TO THE OFFICE FROM WHICH THE DATA WERE OBTAINED.'

CLAUSE 7 OF THE INVITATION CONTAINED THE STANDARD LANGUAGE PERTAINING TO THE ACCEPTANCE OF LATE BIDS.

THE BID OPENING PROCEDURE AT THE PROCURING INSTALLATION AT THE TIME OF THIS PROCUREMENT, WHICH WE ARE ADVISED HAS BEEN IN EFFECT FOR 16 YEARS, WAS FOR BIDS TO BE INITIALLY RECEIVED IN A BID BOX. FROM THE BID BOX BIDS WERE TAKEN TO A BID OPENING ROOM WHERE THE BIDDING WAS OFFICIALLY CLOSED AND BIDS WERE OPENED. THE PRACTICE AT THE PROCURING INSTALLATION HAS BEEN FOR BIDDERS, ON OCCASION, TO HAND THEIR BIDS TO THE BID OPENING OFFICER IN THE BID OPENING ROOM PRIOR TO BID OPENING. EDROW WAS AWARE OF THE BID OPENING PROCEDURE AT THE PROCURING INSTALLATION SINCE EDROW HAD BID ON PRIOR PROCUREMENTS AT THIS INSTALLATION. WE ARE ADVISED THAT THE ADDRESS 1220 PACIFIC HIGHWAY, LISTED IN THE INSTANT INVITATION AS THE PLACE WHERE BIDS WERE TO BE RECEIVED, IS THE GENERAL ADDRESS OF THE INSTALLATION AND DOES NOT PERTAIN TO ANY PARTICULAR BUILDING AT THE INSTALLATION.

IN THE INSTANT PROCUREMENT THE BID BOX WAS LOCATED IN THE LOBBY OF BUILDING 127 AT THE INSTALLATION. THE BID OPENING ROOM WAS LOCATED IN BUILDING 129 WHICH IS APPROXIMATELY 170 FEET ACROSS THE COMPOUND FROM BUILDING 127. AT ABOUT 1:45 P.M., ON THE DAY OF THE BID OPENING, THE BID BOX WAS OPENED BY TWO EMPLOYEES OF THE CONTRACTS DIVISION OF THE INSTALLATION. THESE EMPLOYEES SORTED THE BIDS AND PREPARED A TYPED LIST OF THE BIDDERS FROM THE ENVELOPES IN THE BID BOX. AT APPROXIMATELY 1:55 P.M., THE BID OPENING OFFICER ARRIVED AT THE BID BOX AND AT ABOUT :00 P.M. THE BID BOX WAS CLOSED AND LOCKED. AT THE TIME THAT THE BID BOX WAS LOCKED, THE BID OPENING OFFICER SAID "LET'S GO" AND TOGETHER WITH TWO EMPLOYEES OF THE PROCURING INSTALLATION PROCEEDED TO THE BID OPENING ROOM. THE BID OPENING OFFICER ADVISES THAT BY "LET'S GO" HE MEANT LET US GO ACROSS THE COMPOUND TO THE BID ROOM IN BUILDING 129 WHERE BIDS ARE PUBLICLY OPENED, READ, AND RECORDED.

AS THE BID OPENING OFFICER AND THE TWO EMPLOYEES WERE CROSSING THE COMPOUND AT 2:00 P.M., BETWEEN BUILDINGS 127 AND 129, A REPRESENTATIVE OF EDROW HANDED A SEALED BID TO ONE OF THE EMPLOYEES ACCOMPANYING THE BID OPENING OFFICER AND THIS BID WAS PLACED WITH THE OTHER SEALED BIDS. AFTER THE BID OPENING OFFICER ARRIVED AT THE BID OPENING ROOM HE STATED:

"THIS IS NOW THE SPECIFIED TIME FOR OPENING BIDS ON CONTRACT NBY 60174 FOR CONSTRUCTION OF AIRCRAFT SYSTEM TRAINING BUILDING, MCAF SANTA ANA, CALIFORNIA. ARE ALL BIDS IN FOR THIS CONTRACT? (PAUSE) NO OTHER BIDS OR MODIFICATIONS WILL NOW BE ACCEPTED, UNLESS DELAYED IN THE MAIL THROUGH NO FAULT OF THE BIDDER. WE WILL NOW OPEN THE BIDS ON CONTRACT NBY-60174.'

THE BID OPENING OFFICER'S WATCH INDICATED THAT THE TIME WAS 2:02 P.M. WHEN THE ABOVE STATEMENT WAS MADE.

THE BID FROM EDROW ENGINEERING COMPANY IN THE AMOUNT OF $467,000 WAS LOW. YOUR BID IN THE AMOUNT OF $479,500 WAS SECOND LOW. ON AUGUST 24, 1965, A CONTRACT FOR THIS PROCUREMENT WAS AWARDED TO EDROW.

STATEMENTS FROM TWO EMPLOYEES AT THE PROCURING INSTALLATION ADVISE THAT EDROW'S REPRESENTATIVE WAS SEEN AT THE PROCURING INSTALLATION AT 45 MINUTES AND AT 15 MINUTES BEFORE BID OPENING. A SWORN STATEMENT FROM EDROW'S REPRESENTATIVE STATES THAT HE ARRIVED AT THE PROCURING INSTALLATION AT ABOUT 1:15 P.M. ON THE DAY OF BID OPENING.

WITH RESPECT TO YOUR ALLEGATION THAT THE BIDDING WAS OFFICIALLY CLOSED AT THE BID BOX, THE RECORD SHOWS THAT IT HAS BEEN THE PRACTICE FOR 16 YEARS AT THE PROCURING INSTALLATION TO CLOSE THE BIDDING IN THE BID ROOM. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE BID OPENING OFFICE DEVIATED FROM THIS PRACTICE IN THE INSTANT CASE. THE STATEMENT BY THE BID OPENING OFFICER, QUOTED ABOVE, IN THE BID ROOM INDICATES THAT THE BID OPENING OFFICER INTENDED TO FOLLOW THE ESTABLISHED PRACTICE AND OFFICIALLY CLOSE THE BIDDING IN THE BID ROOM. ON THE BASIS OF THE RECORD PRESENTED WE CONCLUDE THAT THE BIDDING IN THE INSTANT PROCUREMENT WAS OFFICIALLY CLOSED BY THE BID OPENING OFFICER IN THE BID ROOM.

YOU HAVE RAISED THE QUESTION WHETHER EDROW'S REPRESENTATIVE WAS PRESENT AT THE INSTALLATION PRIOR TO THE TIME WHEN THE BID OPENING OFFICER AND THE TWO EMPLOYEES WERE CROSSING THE COMPOUND ENROUTE TO THE BID ROOM. THE RECORD PRESENTED TO OUR OFFICE INDICATES THAT EDROW'S REPRESENTATIVE WAS PRESENT AT THE PROCURING INSTALLATION ABOUT 45 MINUTES BEFORE BID OPENING; HOWEVER, THIS IS NOT THE DISPOSITIVE FACTOR IN THIS CASE.

ARMED SERVICES PROCUREMENT REGULATION SEC. 2-303.1 PROVIDES:

"BIDS WHICH ARE RECEIVED IN THE OFFICE DESIGNATED IN THE INVITATION FOR BIDS AFTER THE EXACT TIME SET FOR OPENING ARE "LATE BIDS," EVEN THOUGH RECEIVED ONLY ONE OR TWO MINUTES LATE. LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.'

ARMED SERVICES PROCUREMENT REGULATION SEC. 2-402.1 WHICH IS SUBSTANTIALLY THE SAME AS CLAUSE 1 OF THE INVITATION, QUOTED ABOVE, PROVIDES:

"THE OFFICIAL DESIGNATED AS THE BID OPENING OFFICER SHALL DECIDE WHEN THE TIME SET FOR BID OPENING HAS ARRIVED, AND SHALL SO DECLARE TO THOSE PRESENT. HE SHALL THEN PERSONALLY AND PUBLICLY OPEN ALL BIDS RECEIVED PRIOR TO THAT TIME, AND WHEN PRACTICABLE READ THEM ALOUD TO THE PERSONS PRESENT, AND HAVE THE BIDS RECORDED. * * *"

IT IS ESTABLISHED RULE THAT THE BIDDER HAS THE RESPONSIBILITY TO SEE THAT THE BID REACHES THE DESIGNATED OFFICE BEFORE THE TIME SET FOR BID OPENING. THE ARMED SERVICES PROCUREMENT REGULATIONS, QUOTED ABOVE, PROVIDE THAT BIDS RECEIVED IN THE DESIGNATED OFFICE AFTER THE EXACT TIME FOR OPENING ARE LATE BIDS AND THAT THE BID OPENING OFFICER SHALL DECIDE WHEN THE DESIGNATED TIME SET FOR THE OPENING OF BIDS HAS ARRIVED. THE BID OPENING OFFICER CAN ALSO EXTEND THE TIME FOR BID OPENING IF THIS IS DETERMINED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. SEE B-153288, MARCH 19, 1964.

IN THE INSTANT CASE IT CANNOT BE SAID THAT ANY SPECIFIC OFFICE AT THE PROCURING INSTALLATION WAS THE DESIGNATED OFFICE FOR THE RECEIVING OF BIDS SINCE THE ADDRESS LISTED IN THE INVITATION IS THE GENERAL ADDRESS OF THE PROCURING INSTALLATION. THE BID OPENING OFFICER DETERMINED THAT THE DESIGNATED TIME FOR BID OPENING HAD ARRIVED IN THE BID ROOM AND THE BID OPENING OFFICER'S WATCH AT THAT TIME INDICATED APPROXIMATELY 2:02 P.M. THERE IS NO QUESTION THAT EDROW'S BID WAS RECEIVED PRIOR TO THE TIME THAT THE BIDDING WAS OFFICIALLY CLOSED IN THE BID ROOM. IT IS OBVIOUS THAT SOME TIME ELAPSED BETWEEN THE TIME THAT EDROW-B BID WAS RECEIVED IN THE COMPOUND BETWEEN BUILDINGS 127 AND 129 AND THE TIME OF THE BID OPENING OFFICER'S STATEMENT IN THE BID ROOM AT ABOUT 2:02 P.M. IN THIS CONNECTION AFTER EDROW'S BID HAD BEEN SUBMITTED, THE BID OPENING OFFICER AND THE TWO EMPLOYEES HAD TO CONTINUE CROSSING THE COMPOUND TO GET TO THE BID ROOM. ON THE BASIS OF THE RECORD WE FIND THAT EDROW'S BID WAS SUBMITTED AT ABOUT 2:00 P.M.; HOWEVER, IT IS IMPOSSIBLE FOR OUR OFFICE TO DETERMINE WHEN THE EXACT TIME OF 2:00 P.M. HAD ARRIVED. IN THESE CIRCUMSTANCES WE WILL NOT QUESTION THE BID OPENING OFFICER'S DETERMINATION THAT EDROW'S BID WAS SUBMITTED BEFORE THE DESIGNATED TIME OF BID OPENING. IN VIEW OF OUR CONCLUSION THAT EDROW'S BID IS NOT A LATE BID, THE PRECEDENTS CITED IN YOUR LETTER TO OUR OFFICE WOULD NOT BE APPLICABLE TO THE INSTANT MATTER.

FOR THESE REASONS YOUR PROTEST IS DENIED; HOWEVER, WE FEEL THAT THE BID OPENING PROCEDURE AT THE PROCURING INSTALLATION NEEDS IMPROVEMENT AND WE HAVE SO ADVISED THE DEPARTMENT OF THE NAVY.