B-166303, JUN. 12, 1969

B-166303, JUN. 12, 1969

TO MANPOWER, INC. OF MARICOPA COUNTY:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 28, 1969, AND SUBSEQUENT CORRESPONDENCE FROM YOU AND YOUR ATTORNEY, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT FOR AIRCRAFT REFUELING SERVICES TO ANY BIDDER OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. F02600-69-B-0022 (HEREINAFTER REFERRED TO AS IFB -0022), ISSUED BY THE BASE PROCUREMENT OFFICE, WILLIAMS AIR FORCE BASE, ARIZONA.

IFB -0022 REQUESTED BIDS FOR FURNISHING AIRCRAFT REFUELING SERVICES DURING THE PERIOD FROM MAY 1, 1969, THROUGH APRIL 30, 1970. BIDS WERE TO BE OPENED AT 2:30 P.M., M.S.T., FEBRUARY 27, 1969. WHEN THE BIDS WERE OPENED AT THE DESIGNATED TIME AND PLACE, IT WAS DETERMINED THAT THE BID SUBMITTED BY YOUR FIRM, ALTHOUGH SEALED IN AN ENVELOPE BEARING THE CORRECT INVITATION NUMBER, PERTAINED TO ANOTHER PROCUREMENT IDENTIFIED AS IFB F02600-69-B-0018 (HEREINAFTER REFERRED TO AS IFB 0018), FOR FOOD SERVICES FOR WHICH BIDS WERE TO BE OPENED ON A LATER DATE, MARCH 5, 1969.

THE RECORD INDICATES THAT AFTER THE BID OPENING, THE CONTRACTING OFFICER TELEPHONED THE PRESIDENT OF YOUR FIRM, MRS. MARY KEYSAR, AND INFORMED HER THAT A BID FOR FURNISHING FOOD SERVICES (IFB -0018) HAD BEEN FOUND IN THE ENVELOPE MARKED FOR REFUELING SERVICES (IFB -0022) AND THAT, THEREFORE, YOUR FIRM COULD NOT BE CONSIDERED AS HAVING SUBMITTED A TIMELY BID FOR REFUELING SERVICES UNDER IFB -0022. THE CONTRACTING OFFICER ALSO INFORMED MRS. KEYSAR THAT HE HAD NO AUTHORITY TO OPEN A PROPERLY IDENTIFIED BID PACKAGE PRIOR TO THE TIME SET FOR OPENING OF BIDS. MRS. KEYSAR INFORMED THE CONTRACTING OFFICER THAT SHE WOULD VISIT HIS OFFICE THE FOLLOWING MORNING AND PICK UP THE FOOD SERVICES ENVELOPE. THE RECORD INDICATES THAT IN RESPONSE TO HER REQUEST, THE CONTRACTING OFFICER TOLD HER WHO WAS THE LOW BIDDER UNDER THE REFUELING SERVICES INVITATION.

IT IS REPORTED THAT MRS. KEYSAR ARRIVED AT THE OFFICE OF THE CONTRACTING OFFICER ON FEBRUARY 28, 1969, AND THAT AT THAT TIME SHE WAS GIVEN THE ENVELOPES CONTAINING YOUR FIRM'S REFUELING SERVICES AND FOOD SERVICES BIDS, AND THAT THE CONTRACTING OFFICER ADVISED MRS. KEYSAR THAT SHE COULD RESUBMIT YOUR FIRM'S FOOD SERVICES BID PROPERLY IDENTIFIED BUT THAT YOUR FIRM'S REFUELING SERVICES BID WAS BEING REJECTED AS A LATE BID.

THE RECORD INDICATES THAT AFTER RECEIVING PERMISSION TO USE THE TELEPHONE, MRS. KEYSAR CALLED MR. DICKERSON IN YOUR OAKLAND, CALIFORNIA, OFFICE AND ADVISED HIM OF THE CONTRACTING OFFICER'S DECISION TO REJECT YOUR FIRM'S REFUELING SERVICES BID. MR. DICKERSON ASKED TO SPEAK TO THE CONTRACTING OFFICER AND THAT OFFICER REPEATED TO HIM WHAT HE HAD TOLD MRS. KEYSAR. THE CONTRACTING OFFICER REPORTS THAT WHILE HE WAS TALKING TO MR. DICKERSON ON THE TELEPHONE MRS. KEYSAR GOT UP FROM HER CHAIR AND WENT TO A TABLE IN THE OUTER OFFICE; THAT HE IS OF THE OPINION THAT MRS. KEYSAR OPENED THE FOOD SERVICES ENVELOPE AND PULLED OUT THE REFUELING SERVICES BID WHILE SHE WAS AT THE TABLE IN THE OUTER OFFICE; THAT WHILE HE WAS STILL TALKING TO MR. DICKERSON ON THE TELEPHONE, MRS. KEYSAR REENTERED HIS OFFICE AND SHOWED HIM THE REFUELING SERVICES BID SCHEDULE ON WHICH, HE STATES, HE NOTED A BID FIGURE OF $0.003945 PER GALLON; AND THAT DURING THIS VISIT TO HIS OFFICE, MRS. KEYSAR RESUBMITTED YOUR FIRM'S FOOD SERVICES BID. THE RECORD INDICATES THAT AT A LATER DATE MRS. KEYSAR RESUBMITTED THE REFUELING SERVICES BID WITH A REQUEST THAT IT BE CONSIDERED FOR AWARD AND THAT SUCH BID WAS RECEIVED BY THE BASE PROCUREMENT OFFICE ON MARCH 5, 1969.

IN A SUPPLEMENTAL AFFIDAVIT DATED MAY 2, 1969, MRS. KEYSAR STATES THAT ON THE MORNING OF FEBRUARY 28, 1969, AS SHE SAT IN THE OFFICE OF THE CONTRACTING OFFICER, CAPTAIN HUMPHERYS, HE HANDED HER THE ENVELOPE WHICH CONTAINED THE REFUELING SERVICES BID; THAT SHE ASKED CAPTAIN HUMPHERYS IF SHE COULD MAKE A TELEPHONE CALL AND HE OFFERED HER THE USE OF HIS TELEPHONE; THAT AFTER REACHING HER PARTY SHE HANDED THE TELEPHONE TO CAPTAIN HUMPHERYS AND PROCEEDED TO OPEN THE ENVELOPE CONTAINING YOUR FIRM'S REFUELING SERVICES BID; AND THAT SHE LAID THE REFUELING SERVICES BID ON THE DESK OF CAPTAIN HUMPHERYS WHILE HE WAS SPEAKING ON THE TELEPHONE.

YOUR ATTORNEY CONTENDS THAT THE CONTRACTING OFFICER ACTED IN ERROR WHEN HE REJECTED YOUR FIRM'S REFUELING SERVICES BID AS A LATE BID AND THAT HE SHOULD HAVE KEPT THE BID AND NOT PERMITTED MRS. KEYSAR TO TAKE IT BACK WITH HER WHEN SHE LEFT HIS OFFICE ON FEBRUARY 28, 1969. THE DEPARTMENT OF THE AIR FORCE AGREES WITH THIS. HOWEVER, THERE IS A CONFLICT OF OPINION IN THIS CASE AS TO WHETHER THE ENVELOPE CONTAINING YOUR FIRM'S REFUELING SERVICES BID WAS OPENED IN THE PRESENCE OF THE CONTRACTING OFFICER, CAPTAIN HUMPHERYS. IN THIS CONNECTION, CAPTAIN HUMPHERYS HAS SUBMITTED AN AFFIDAVIT DATED MAY 8, 1969, IN WHICH HE STATES:

"TO THE BEST OF MY KNOWLEDGE THE EVENTS CONCERNING MRS. KEYSAR'S VISIT TO THE BASE PROCUREMENT OFFICE ON 28 FEBRUARY 1969, ARE AS FOLLOWS:

"WHEN MRS. KEYSAR ARRIVED AT THE OFFICE, SHE ASKED FOR HER FOOD SERVICE ENVELOPE THAT WAS ALLEGED TO HOLD HER REFUELING BID. I OBTAINED THEM FROM THE BID SAFE AND RETURNED THEM TO HER. THIS ALL TOOK PLACE OUTSIDE MY OFFICE. AFTER RETURNING THE ENVELOPES TO MRS. KEYSAR WE BOTH WENT INTO MY OFFICE. I ADVISED HER THAT SHE COULD RESUBMIT HER FOOD SERVICE BID PROPERLY IDENTIFIED AND THAT HER REFUELING BID WOULD HAVE TO BE CONSIDERED LATE. SHE THEN CALLED MR. DICKERSON IN THEIR OAKLAND, CALIF. OFFICE AND RELATED TO HIM WHAT I HAD TOLD HER. MR. DICKERSON ASKED TO SPEAK TO ME. I THEN GAVE HIM THE SAME INFORMATION I HAD GIVEN MRS. KEYSAR. WHILE I WAS ON THE PHONE, MRS. KEYSAR GOT UP FROM HER CHAIR AND WENT TO THE TABLE IN THE OUTER OFFICE AND I BELIEVE IT WAS AT THIS TIME SHE OPENED THE FOOD SERVICE ENVELOPE AND PULLED OUT THE REFUELING BID. WHEN SHE RE-ENTERED MY OFFICE (I WAS STILL ON THE PHONE) SHE SHOWED ME THE BID SCHEDULE. I DID SEE THE BID FIGURE OF .003945/GALLON. SHE THEN RESUBMITTED HER FOOD SERVICE BID PROPERLY IDENTIFIED. MRS. KEYSAR RESUBMITTED HER REFUELING BID AND IT WAS RECEIVED IN THE BASE PROCUREMENT OFFICE ON 5 MARCH 1969.' ALSO, CAPTAIN HUMPHERYS' SECRETARY, MRS. MARJORIE V. SCOTTEN, HAS SUBMITTED AN AFFIDAVIT DATED MAY 8, 1969, IN WHICH SHE STATES:

"ON THE MORNING OF 28 FEBRUARY 1969, I DIRECTED MRS. KEYSAR TO CAPT. HUMPHERYS' OFFICE. I ASKED HER IF I COULD GET HER SOME COFFEE AND SHE SAID YES. UPON RETURNING WITH HER COFFEE I HEARD HER ASK CAPT. HUMPHERYS IF SHE COULD USE HIS PHONE TO MAKE A COLLECT LONG DISTANCE CALL. AFTER REACHING HER PARTY AND INFORMING THEM OF THE SITUATION, SHE HANDED THE PHONE TO CAPT. HUMPHERYS. WHILE HE WAS ON THE PHONE, MRS. KEYSAR CAME OUT OF CAPT. HUMPHERYS OFFICE TO THE TABLE IN THE AREA WHERE MY DESK IS LOCATED. SHE HAD SOME PAPERS IN HER HAND. I WENT ON WITH MY TYPING AND DID NOT NOTICE WHAT SHE DID. SHE WENT BACK INTO CAPT. HUMPHERYS' OFFICE AND SAT DOWN. AT THAT TIME I LEFT THE OFFICE FOR A WHILE AND WHEN I RETURNED, MRS. KEYSAR WAS LEAVING.' THE RECORD ALSO CONTAINS AN AFFIDAVIT DATED MAY 27, 1969, FROM MR. MATTHEW A. JANNUZZI, DEPUTY CHIEF, BASE PROCUREMENT, IN WHICH HE STATES:

"ON THE MORNING OF 28 FEBRUARY 1969, MRS. MARY KEYSAR, PRESIDENT OF MANPOWER, INC. OF MARICOPA COUNTY, ARRIVED IN THE OUTER OFFICE OF THE BASE PROCUREMENT OFFICE AND ADDRESSED HERSELF TO THE SECRETARY SEATED THERE. SHE INQUIRED FOR AND WAS DIRECTED TO THE OFFICE OF CAPT. HAROLD L. HUMPHERYS. I WAS OCCUPIED WITH MATTERS NOT RELATED TO THE PURPOSE OF HER CALL AND WAS NOT COGNIZANT OF EVENTS OCCURING IN THE CAPTAIN'S OFFICE UNTIL MRS. KEYSAR AND CAPTAIN HUMPHERYS DISCUSSED PLACING A LONG DISTANCE CALL TO OAKLAND, CALIFORNIA. MRS. KEYSAR SPOKE BRIEFLY TO THE PARTY CALLED AND TURNED THE PHONE OVER TO CAPT. HUMPHERYS WHO THEN ENGAGED IN A LENGTHY CONVERSATION WITH THE PARTY. MRS. KEYSAR, IN THE MEANTIME REPAIRED TO THE OUTER OFFICE WHICH CONTAINED A TABLE AND CHAIRS AND SAT THERE FOR A BRIEF PERIOD, APPARENTLY OCCUPIED WITH DOCUMENTS NOT IDENTIFIABLE BY ME.

"MRS. KEYSAR THEN AROSE AND CAME TO MY DESK AND DISPLAYED A PIECE OF MEMO PAPER APPROXIMATELY 5 X 8 INCHES IN SIZE ON WHICH WAS WRITTEN TWO FIGURES; ONE I IDENTIFIED AS THE BID FIGURE SUBMITTED BY THE APPARENT LOW BIDDER, AS RECORDED THE PREVIOUS DAY, AT THE TIME OF THE FORMAL BID OPENING. THE SECOND WAS IDENTIFIED TO ME BY MRS. KEYSAR AS -HER BID-. THIS FIGURE WAS FRACTIONALLY LOWER THAN THE FIRST FIGURE MENTIONED. MRS. KEYSAR SHOWED ME THE FIGURES AND COMMENTED SUBSTANTIALLY AS FOLLOWS, -IT APPEARS AS THOUGH WE WOULD HAVE BEEN LOW BIDDER. WE WILL BE MORE CAREFUL NEXT TIME.- I THEN INQUIRED AS TO THE HEALTH AND STATUS OF ONE MR. POSAGE WHO HAD PREVIOUSLY VISITED MY OFFICE REPRESENTING HIMSELF AS AN OFFICIAL OF MANPOWER, INC., AT THE PRE-BID CONFERENCE.

"THIS WAS THE ONLY TIME THAT I SAW THE FIGURE PROPOSED BY MANPOWER, INC. OF MARICOPA COUNTY. AT NO TIME DID I SEE THE BID AS CONTAINED IN THE FORM OFFERED BY MRS. KEYSAR.

"MRS. KEYSAR THEN LEFT MY OFFICE AND RETURNED TO CAPT. HUMPHERYS' OFFICE.'

FROM THE FOREGOING, IT IS APPARENT THAT THERE IS A CONFLICT AS TO WHETHER MRS. KEYSAR OPENED THE BID IN THE PRESENCE OF THE CONTRACTING OFFICER. ALTHOUGH MRS. KEYSAR STATES THAT SHE OPENED THE BID IN THE PRESENCE OF THE CONTRACTING OFFICER, HE STATES THAT SHE DID NOT. MOREOVER, BOTH THE CONTRACTING OFFICER'S SECRETARY AND THE DEPUTY CHIEF AVER THAT MRS. KEYSAR LEFT THE CONTRACTING OFFICER'S OFFICE AND RETURNED TO IT AS HE CONTENDS. IN THE CIRCUMSTANCES, WE ACCEPT THE CONTRACTING OFFICER'S VERSION OF THE FACTS AS CORRECT.

YOUR ATTORNEY HAS POINTED OUT THAT IN THE STATEMENT OF FACTS AND FINDINGS PREPARED BY THE CONTRACTING OFFICER BEFORE HE WAS REQUESTED TO FURNISH AN AFFIDAVIT, HE STATED: "WHILE I WAS ON THE TELEPHONE WITH MR. DICKERSON, SHE OPENED THE ENVELOPE THAT SHE ALLEGED CONTAINED HER REFUELING BID.' YOUR ATTORNEY CONTENDS THAT THE FOREGOING STATEMENT IS EVIDENCE OF THE FACT THAT MRS. KEYSAR DID OPEN THE ENVELOPE CONTAINING THE REFUELING SERVICES BID IN CAPTAIN HUMPHERYS' PRESENCE, AS ALLEGED BY HER.

WE ARE OF THE OPINION THAT THE QUOTED STATEMENT INDICATES ONLY THAT THE ENVELOPE IN QUESTION WAS OPENED BY MRS. KEYSAR WHILE CAPTAIN HUMPHERYS WAS TALKING ON THE TELEPHONE. SUCH STATEMENT IS NOT EVIDENCE THAT THE ENVELOPE IN QUESTION WAS OPENED IN CAPTAIN HUMPHERYS' PRESENCE, PARTICULARLY, IN VIEW OF THE FACT THAT CAPTAIN HUMPHERYS HAS STATED IN HIS AFFIDAVIT THAT MRS. KEYSAR OPENED THE ENVELOPE IN QUESTION IN AN OUTER OFFICE.

THE DECISION CITED BY YOUR ATTORNEY IN 46 COMP. GEN. 859, WHICH INVOLVED A SIMILAR FACTUAL SITUATION, IS DISTINGUISHABLE FROM THIS CASE. IN THE CITED CASE THE INTENDED BID WAS AT ALL TIMES AFTER ITS RECEIPT AND BEFORE ITS OPENING BY GOVERNMENT PERSONNEL WITHIN THE POSSESSION AND CONTROL OF THE GOVERNMENT. THERE IS NO EVIDENCE IN THE IMMEDIATE CASE THAT MRS. KEYSAR TAMPERED WITH THE BID WHILE IT WAS IN HER POSSESSION IN THE OUTER ROOM -- AND WE DO NOT SUGGEST THAT SHE DID. HOWEVER, IN RETURNING THE BID TO MRS. KEYSAR, SUCH OPPORTUNITY WAS PRESENTED SINCE THERE WAS AN ABSENCE OF GOVERNMENT SUPERVISION OVER THE OPENING.

GOVERNMENT ADVERTISING STATUTES PROVIDE FOR PUBLIC OPENING OF BIDS AND WHERE THE PROCEDURE FOR PUBLIC OPENING IS NOT FOLLOWED, AS IN CASES LIKE THIS AND IN LATE BID CASES, WE BELIEVE THIS REQUIRES, AT A MINIMUM, THAT THE OPENING OF THE BID BE WITHIN THE CONTROL OF AND OBSERVED BY GOVERNMENT PERSONNEL. THIS IS NECESSARY WE BELIEVE IF THE INTEGRITY OF THE BIDDING SYSTEM AND THE SPIRIT OF THE ADVERTISING STATUTES ARE TO BE PRESERVED.

IT IS, OF COURSE, UNFORTUNATE THAT CAPTAIN HUMPHERYS REFUSED TO ACCEPT YOUR FIRM'S REFUELING SERVICES BID AS A TIMELY RECEIVED BID. HOWEVER, WE BELIEVE THAT SUCH REFUSAL ON THE PART OF CAPTAIN HUMPHERYS IS NOT SUFFICIENT TO OVERCOME THE NECESSITY FOR CONSIDERING THE CIRCUMSTANCES UNDER WHICH THE ENVELOPE CONTAINING THE BID IN QUESTION WAS OPENED.

IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE REFUELING SERVICES BID SHOULD NOT BE CONSIDERED FOR AWARD. ACCORDINGLY, THE PROTEST IS DENIED.