B-165727, JAN. 23, 1969

B-165727, JAN. 23, 1969

TO GENE H. SETTERGREN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1968, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER BONNEVILLE POWER ADMINISTRATION INVITATION FOR BIDS 1396. THE INVITATION, ISSUED OCTOBER 31, 1968, SOLICITED BIDS FOR THE CONSTRUCTION OF A CONTROL AND MAINTENANCE BUILDING AT OSTRANDER SUBSTATION, CLACKAMAS COUNTY, OREGON. THE INVITATION SPECIFIED THAT BIDS RECEIVED THEREUNDER WOULD BE OPENED AT 10 A.M., P.S.T., THURSDAY, NOVEMBER 21, 1968.

THE RECORD INDICATES THAT FOUR BIDS WERE IN THE CUSTODY OF THE PROCUREMENT AGENCY BEFORE BID OPENING ON NOVEMBER 21 AND THAT A FEW MINUTES PRIOR TO 10 A.M. THE BID OFFICER, BID CLERK, AND REPRESENTATIVES OF THREE BIDDERS WERE IN THE BID OPENING ROOM. APPROXIMATELY 1 MINUTE BEFORE 10 A.M., A TELEPHONE CALL WAS RECEIVED FOR ONE OF THE REPRESENTATIVES OF THE BIDDERS. BIDDERS WERE THEN INFORMED THAT BID OPENING WOULD BE DELAYED FOR A FEW MINUTES WHILE THE BID CLERK TRIED TO LOCATE THE REPRESENTATIVE. WE HAVE BEEN INFORMALLY ADVISED BY THE BID OFFICER THAT AS THE BID CLERK LEFT THE ROOM, THE REPRESENTATIVE OF JAMES S. HICKEY, INC., ENTERED WITH A BID AND IMMEDIATELY OFFERED THE BID TO THE BID OFFICER. THE BID OFFICER STATES THAT SHE NEVER LEFT THE BID OPENING ROOM AND THAT ALL OF THE BIDS, INCLUDING THE HICKEY BID, WERE RECEIVED BY 10 A.M.

BIDS WERE OPENED WHEN THE BID CLERK RETURNED TO THE ROOM AT FIVE MINUTES AFTER 10 A.M., AND THE HICKEY BID, IN THE TOTAL AMOUNT OF $257,434, WAS THE LOWEST BID RECEIVED. YOUR BID IN THE TOTAL AMOUNT OF $290,672 WAS SECOND LOW. AWARD WAS MADE ON NOVEMBER 27, 1968, TO HICKEY AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER UNDER THE INVITATION.

YOUR LETTER OF NOVEMBER 29, 1968, PROTESTED THE AWARD TO HICKEY ON THE BASIS THAT ITS BID HAD NOT, IN FACT, BEEN SUBMITTED FOR CONSIDERATION UNTIL 10:05 A.M., AND WAS THEREFORE INELIGIBLE FOR CONSIDERATION FOR AWARD. WE HAVE BEEN ADVISED BY THE CONTRACTING AGENCY THAT EVEN THOUGH A CONTRACT HAS BEEN AWARDED TO HICKEY, A NOTICE TO PROCEED WILL NOT BE ISSUED PENDING RECEIPT OF OUR DECISION.

IT HAS LONG BEEN THE RULE OF OUR OFFICE THAT DISPUTES OF FACT WILL BE SETTLED BY ACCEPTANCE OF THE ADMINISTRATIVE VERSION THEREOF, IN THE ABSENCE OF BAD FAITH OR A CLEAR SHOWING OF MISTAKE. THEREFORE, SINCE THE BID OFFICER HAS STATED THAT HICKEY'S BID WAS SUBMITTED IN RESPONSE TO THE INVITATION BY 10 A.M. -- A CONCLUSION TO WHICH WE MUST ASCRIBE FINALITY -- YOUR PROTEST WOULD APPEAR TO BE WITHOUT MERIT.

AS TO THE FACT THAT BID OPENING WAS DELAYED FOR 5 MINUTES IN ORDER TO ALLOW THE BID CLERK TIME TO LOCATE THE RECIPIENT OF THE TELEPHONE CALL AND RETURN TO THE BID OPENING ROOM, WE HAVE HELD THAT THE ACTUAL PHYSICAL ACT OF OPENING OF BIDS, TIMELY SUBMITTED, MAY PROPERLY BE DELAYED, IF NECESSARY. B-164257, JUNE 26, 1968 (47 COMP. GEN.--- ).

SINCE IT APPEARS THAT THE HICKEY BID WAS TIMELY SUBMITTED, NO BASIS EXISTS UPON WHICH OUR OFFICE MAY QUESTION AN AWARD TO THAT FIRM. ACCORDINGLY, YOUR PROTEST IS DENIED.