B-164257, JUNE 26, 1968, 47 COMP. GEN. 784

B-164257, JUNE 26, 1968, 47 COMP. GEN. 784

BIDS - LATE - HAND CARRIED DELAY THE ACTIONS OF A BID OPENING OFFICER HAVING ESTABLISHED A 2 P.M. DEADLINE FOR THE OPENING OF BIDS UNDER SEVERAL INVITATIONS AS REQUIRED BY PARAGRAPH 2-402.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION, A HAND-CARRIED BID WHICH COULD HAVE BEEN TIMELY FILED BUT WAS DELIVERED AT 2:15 P.M. IS CONSIDERED A LATE BID UNDER PARAGRAPH 2-303.1, NOTWITHSTANDING THE BIDDER HAD BEEN ORALLY ADVISED THAT THE OPENING OF BIDS UNDER THE INVITATION IT WAS BIDDING ON WOULD BE DELAYED 10 MINUTES TO COMPLETE THE OPENING OF BIDS UNDER ANOTHER INVITATION. TO HOLD OTHERWISE WOULD INTRODUCE AN ELEMENT OF UNCERTAINTY INTO THE BIDDING PROCEDURE. THEREFORE, EVEN IF THE LATE HAND- CARRIED BID WAS DELIVERED BEFORE OTHER BIDS UNDER THE SAME INVITATION HAD BEEN OPENED AND PRICES REVEALED, IT MAY NOT UNDER PARAGRAPH 2-303.5 BE CONSIDERED.

TO MCCLURE AND TROTTER, JUNE 26, 1968:

WE REFER TO YOUR LETTERS OF MAY 8 AND 31, 1968, PROTESTING THE CONTRACTING OFFICER'S DETERMINATION THAT GENERAL STEEL TANK COMPANY'S BID UNDER ADVERTISED SOLICITATION NO. M00027-68-B-0150 ISSUED MARCH 13, 1968, BY THE UNITED STATES MARINE CORPS, HEADQUARTERS, WASHINGTON, D.C., FOR THE PROCUREMENT OF 25 TACTICAL AIRFIELD FUEL DISPERSING SYSTEMS WAS RECEIVED LATE AND WAS THEREFORE NOT FOR CONSIDERATION.

THE SUBJECT SOLICITATION AS AMENDED PROVIDED FOR BID OPENING AT 2:00 P.M. DAYLIGHT SAVING TIME, MAY 2, 1968.

AT APPROXIMATELY 1:58 P.M. THE BID OPENING OFFICER REMOVED THE BIDS CONTAINED IN THE BID DEPOSITORY BOX NEAR THE ENTRANCE TO THE BID OPENING ROOM, PROCEEDED TO THE ROOM, AND COMMENCED TO OPEN THE FIRST OF THREE SETS OF BIDS SCHEDULED FOR OPENING AT 2:00 P.M. ON THAT DATE. UPON COMPLETION OF ACTION ON THE TWO BID SETS NOT HERE IN QUESTION, THE BID OPENING OFFICER ANNOUNCED THE START OF BID OPENING FOR THE SUBJECT SOLICITATION, AND BEGAN TO READ THE NAME OF THE FIRST BIDDER. AT THIS TIME A REPRESENTATIVE OF GENERAL STEEL TANK COMPANY PLACED A SEALED ENVELOPE UPON THE TABLE WITH THE OTHER BIDS. THE TIME WAS NOTED AS 2:15 AND THE ENVELOPE WAS RETAINED UNOPENED FOR FURTHER CONSIDERATION BY THE CONTRACTING OFFICER.

THE MAY 17, 1968, REPORT FROM THE HEADQUARTERS, UNITED STATES MARINE CORPS, DEPARTMENT OF THE NAVY (CODE CSG-1-11D), TO THIS OFFICE RECOMMENDS THAT THE SUBJECT BID BE CONSIDERED LATE AND ACCORDINGLY REJECTED.

AS ATTORNEY FOR GENERAL STEEL TANK COMPANY, YOU ALLEGE THAT SHORTLY BEFORE THE 2:00 P.M. DEADLINE, MRS. ENSOR, THE CONTRACT SPECIALIST WHOSE NAME WAS LISTED UPON THE SOLICITATION FORM AS THE INDIVIDUAL TO CONTACT FOR INFORMATION, ADVISED THREE REPRESENTATIVES OF GENERAL STEEL TANK COMPANY THEN PRESENT IN HER OFFICE THAT "THERE IS NO HURRY, THERE HAS BEEN A 10-MINUE DELAY IN OPENING THESE BIDS.' THIS STATEMENT YOU CONTEND OPERATES AS AN ORAL POSTPONEMENT OF THE BID OPENING UNDER SUCH DECISIONS OF THIS OFFICE AS B-158464, MARCH 28, 1966.

ALTERNATIVELY, YOU ARGUE THAT SINCE THE GOVERNMENT CAUSED THE DELAY IN SUBMITTING YOUR CLIENT'S BID, SAID BID IS FOR CONSIDERATION, CITING 34 COMP. GEN. 150.

YOU FURTHER CONTEND THAT UNDER ASPR 2-402.1 (A), THE BID OPENING OFFICER CANNOT BE CONSIDERED AS DECIDING THE TIME FOR THE OPENING OF THE SUBJECT BID SET HAD ARRIVED UNTIL THE ACTION ON THE TWO PRIOR SETS WAS COMPLETED AND THE OPENING OF THE SUBJECT BID SET WAS ANNOUNCED.

DEALING WITH THIS LAST ALLEGATION FIRST, WE BELIEVE ASPR 2-402.1 (A) IMPOSED UPON THE BID OPENING OFFICER A DUTY TO DECIDE WHEN THE 2:00 P.M. DEADLINE FOR THE RECEIPT OF BIDS FOR ALL THREE OF THE BID SETS ARRIVED. THIS THE BID OPENING OFFICER DID BY REMOVING ALL BIDS FROM THE BID DEPOSITORY BOX OUTSIDE THE BID OPENING ROOM AT 1:58 P.M., ON MAY 2, 1968, AND PLACING THEM IN THE ROOM FOR PUBLIC OPENING. BY THIS ACTION THE SPECIFIED DEADLINE FOR THE RECEIPT OF ALL THREE BID SETS WAS ESTABLISHED, AND FOR THE FORTUITOUS CIRCUMSTANCE THAT THE ACTUAL OPENING OF ONE BID SET OCCURRED LATER THAN THAT OF THE OTHER SETS DOES NOT ALTER THIS DETERMINATION OF THE DEADLINE FOR THE RECEIPT OF BIDS.

TO PERMIT THE OPPOSITE VIEW WOULD INTRODUCE AN UNNECESSARY ELEMENT OF UNCERTAINTY INTO THE BIDDING PROCEDURES, FOR BIDDERS WOULD NOT KNOW IN ADVANCE WHEN THE FINAL TIME FOR ACCEPTANCE OF BIDS WOULD OCCUR, DUE TO SUCH VARIABLES AS THE NUMBER OF BIDS INVOLVED IN THE PRIOR BID SETS. SINCE WE BELIEVE IT IS TO THE GOVERNMENT'S ADVANTAGE TO ESTABLISH THE TIME FOR BID OPENING IN ADVANCE WITH AS MUCH PRECISION AS POSSIBLE, WE INTERPRET ASPR 2-402.1 (A) TO MEAN THAT THE BID OPENING OFFICER'S DECISION TO COMMENCE OPENING BIDS AT 2:00 P.M. PROHIBITED THE CONSIDERATION OF A BID SUBMITTED BY GENERAL STEEL TANK COMPANY AT 2:15 P.M. EVEN THOUGH NO BID PRICES FROM THAT PARTICULAR SET HAD BEEN READ.

REGARDING THE ALLEGED 10-MINUTE POSTPONEMENT OF BID OPENING, WE BELIEVE THAT THE RECORD SHOWS WORDS OF MRS. ENSOR WERE INTENDED TO CONVEY THE INFORMATION THAT THE PHYSICAL ACT OF OPENING THE BID SET IN WHICH YOUR CLIENT WAS INTERESTED WOULD OCCUR AFTER THE OTHER TWO BID SETS WERE OPENED. HOWEVER, IT DOES NOT FOLLOW THAT THE 2:00 P.M. TIME FOR THE RECEIPT OF BIDS STATED ON THE SOLICITATION WAS IN ANY MANNER CHANGED BY THE CIRCUMSTANCE THAT CERTAIN OTHER BID SETS WERE TO BE OPENED FIRST. THE CASES YOU CITE WHERE A BID OPENING WAS POSTPONED INVOLVED A KNOWING DECISION OF THE CONTRACTING OFFICER TO SET BACK THE TIME FOR THE RECEIPT OF BIDS, AND A COMMUNICATION OF THIS INFORMATION TO PROSPECTIVE BIDDERS. HERE, MRS. ENSOR DID NOT ACT TO POSTPONE THE TIME FOR THE RECEIPT OF BIDS, BUT INSTEAD SHE ADVISED YOUR CLIENT OF A SLIGHT TIME INTERVAL WHICH WOULD BE EXPECTED BETWEEN THE RECEIPT OF BIDS AND THE READING OF THE THIRD BID SET.

THIS SAME INFORMATION WAS POSTED UPON THE WALL NEAR THE BID OPENING ROOM, NOTIFYING BIDDERS OF THE 2 P.M. DEADLINE FOR RECEIPT OF BIDS UNDER THE THREE SOLICITATIONS, AND SETTING FORTH THE SCHEDULED ORDER OF OPENING.

AS TO YOUR CONTENTION THAT YOUR CLIENT'S LATE BID SHOULD BE ACCEPTED BECAUSE THE DELAY WAS GOVERNMENT CAUSED, THE CASES WHICH HAVE PERMITED THIS, SUCH AS 34 COMP. GEN. 150, CONCERNED POSITIVE ACTS OF THE GOVERNMENT DIRECTLY CAUSING AN UNANTICIPATED DELAY. IN THE CITED CASE, THERE WAS EVIDENCE OF "EXTRAORDINARY DELAY CAUSED BY GOVERNMENT PERSONNEL" WHEN THE BIDDER ATTEMPTED TO SECURE A PASS TO ENTER THE BASE AND DEPOSIT HIS BID.

HERE, A STATEMENT OF A GOVERNMENT EMPLOYEE WAS APPARENTLY MISUNDERSTOOD BY REPRESENTATIVES OF GENERAL STEEL TANK COMPANY. THIS MISUNDERSTANDING IS AS MUCH THE RESULT OF YOU CLIENT'S ACTIONS AS IT IS THE GOVERNMENT-S. IN ANY CASE, YOUR CLIENT HAD AMPLE OPPORTUNITY TO PROPERLY DEPOSIT HIS BID INTO THE DESIGNATED DEPOSITORY UPON HIS ARRIVAL AT THE INSTALLATION. INSTEAD HE CHOSE TO RETAIN THE BID IN HIS POSSESSION UNTIL WHAT HE MISTAKENLY BELIEVED TO BE THE LAST POSSIBLE MOMENT. JUST WHY HE MADE THIS DECISION IS NOT REVEALED IN THE RECORD, BUT WE SEE NO REASON TO GRANT SPECIAL CONSIDERATION TO A PARTY WHO WAS PRESENT ON THE PREMISES WITH EVERY OPPORTUNITY TO SUBMIT A TIMELY BID, BUT WHO DID DO NOT SO.

FINALLY, EVEN ASSUMING FOR PURPOSES OF ARGUMENT THAT MRS. ENSOR'S WORDS OPERATED TO EXTEND THE TIME FOR THE RECEIPT OF BIDS TO 10 MINUTES PAST THE ORIGINAL 2 P.M. DEADLINE, YOUR CLIENT'S BID WOULD NOT BE FOR CONSIDERATION, FOR IT WAS DELIVERED INTO THE CUSTODY OF THE BID OPENING OFFICER AT 2:15 P.M., SOME 5 MINUTES LATER THAN YOUR ASSUMED DEADLINE.

THE RULES AND REGULATIONS REGARDING THE RECEIPT OF HAND CARRIED BIDS IMPOSE UPON THE BIDDERS THE PRIME RESPONSIBILITY TO SEE THAT BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF BIDS. NOTE, IN THIS CONNECTION THAT ASPR 2-303.1 DEFINES LATE BIDS AS THOSE RECEIVED AFTER THE "EXACT TIME" SET FOR THE OPENING, EVEN THOSE "RECEIVED ONLY ONE OR TWO MINUTES LATE," AND PROHIBITS THE CONSIDERATION OF SUCH LATE BIDS, WHILE ASPR 2-303.5 STATES SIMPLY:

HAND CARRIED BIDS. A LATE HAND CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD.

IN KEEPING WITH THE CLEAR MANDATE OF THESE REGULATIONS, THIS OFFICE HAS CONSISTENTLY REFUSED TO PERMIT CONSIDERATION OF HAND DELIVERED BIDS AFTER THE TIME SET FOR THE FINAL RECEIPT OF BIDS EVEN WHERE NO BIDS HAVE BEEN OPENED. B-137550, DECEMBER 18, 1958 AND B-164073, APRIL 24, 1968.

YOUR CLIENT'S LACK OF KNOWLEDGE OF OTHER BID PRICES AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT RELEVANT. FURTHER, IT IS THE OPINION OF THIS OFFICE THAT COMPETITION IS STRENGTHENED BY INSURING THAT ONLY THOSE BIDS RECEIVED BEFORE THE TIME STATED ARE FOR CONSIDERATION. WHILE THIS MAY OPERATE HARSHLY IN CERTAIN INSTANCES, ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY UNDER VARYING CIRCUMSTANCES AND WOULD INCREASE THE OPPORTUNITY FOR FRAUDS. B-130889, MARCH 26, 1967.. ..END :