B-173392, SEP 17, 1971, 51 COMP GEN 173

B-173392, SEP 17, 1971, 51 COMP GEN 173

BIDS - LATE - HAND-CARRIED DELAY A HAND-CARRIED SEALED BID DELIVERED AFTER THE BID OPENING OFFICER BEGAN TO OPEN THE FIRST BID MAY NOT BE CONSIDERED ON THE BASIS THE CORRIDOR CLOCK UPON WHICH THE MESSENGER RELIED WAS 2 MINUTES EARLIER THAN THE SPECIAL CLOCK IN THE BID OPENING ROOM, WHICH IS REGULATED BY WESTERN UNION TO ACCURATELY REFLECT NAVAL OBSERVATORY TIME, SINCE THERE IS NO REASON TO ASSUME THE CORRIDOR CLOCK REFLECTED THE LOCAL TIME SPECIFIED IN THE INVITATION FOR BIDS AND THE SPECIAL CLOCK DID NOT AND, THEREFORE, THE BID OPENING OFFICER PROPERLY RELIED ON THE SPECIAL CLOCK IN DESIGNATING THE BID OPENING TIME HAD ARRIVED. FURTHERMORE, NOTWITHSTANDING IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CONSIDER THE REJECTED BID, PARAGRAPHS 2-303.1 AND 2-303.5 OF THE ARMED SERVICES PROCUREMENT REGULATION PROHIBITING CONSIDERATION OF LATE BIDS ARE REGULATIONS THAT MUST BE STRICTLY CONSTRUED AND ENFORCED IN ORDER TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

TO JAMES P. SMITH, SEPTEMBER 17, 1971:

REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1971, AND SUBSEQUENT CORRESPONDENCE CULMINATING WITH YOUR LETTER OF SEPTEMBER 10, RELATIVE TO YOUR PROTEST IN BEHALF OF WILKINSON AND JENKINS CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS (IFB) NO. DACW 41-71-B-0116 COVERING CHANNEL STABILIZATION WORK IN THE MISSOURI RIVER. IN EFFECT, YOU PROTEST AGAINST THE ADVERSE FINDING BY THE CONTRACTING OFFICER THAT THE HAND CARRIED BID OF WILKINSON AND JENKINS WAS RECEIVED AFTER THE OFFICIAL CLOSING TIME FOR RECEIPT OF BIDS.

AMENDMENT 1 TO THE IFB, ISSUED JUNE 1, 1971, PROVIDED UNDER THE HEADING "BIDDING TIME" THE FOLLOWING:

SEALED BIDS IN ONE COPY FOR THE WORK DESCRIBED HEREIN WILL BE RECEIVED UNTIL 1:00 P.M. LOCAL TIME AT THE PLACE OF BID OPENING, 17 JUNE 1971, IN ROOM NO. 148A, FEDERAL BUILDING, 601 EAST 12TH STREET, KANSAS CITY, MISSOURI 64106, AND AT THAT TIME PUBLICLY OPENED. HAND CARRIED BIDS DELIVERED IMMEDIATELY PRIOR TO BID OPENING SHALL BE DELIVERED TO THE ABOVE DESIGNATED ROOM.

A MEMORANDUM PREPARED BY THE BID OPENING OFFICER, AND DATED JUNE 17, 1971, RELATES THE CONTRACTING AGENCY'S UNDERSTANDING OF THE CIRCUMSTANCES, UNDER WHICH THE BID OF WILKINSON AND JENKINS WAS RECEIVED, AS FOLLOWS:

1. THIS BID WAS SCHEDULED TO OPEN 1:00 P.M. LOCAL TIME IN ROOM 148A OF THE FEDERAL BUILDING, 601 EAST 12TH STREET, KANSAS CITY, MISSOURI. ROOM 148A IS THE CUSTOMARY OPENING ROOM INASMUCH AS WESTERN UNION MAINTAINS A SPECIAL CLOCK FOR THE CORPS OF ENGINEERS IN THIS ROOM.

2. THE CLOCK IS CONTROLLED BY A MASTER CLOCK AT WESTERN UNION HEADQUARTERS IN KANSAS CITY, WHICH CLOCK IS REGULATED BY UNIVERSAL TIME OF THE NAVAL OBSERVATORY TIME. THIS SERVICE WAS OBTAINED BY THE CORPS TO ELIMINATE ANY POSSIBILITY THAT THE BID OPENING OFFICER WOULD PROCEED IN OPENING THE BIDS ON ERRONEOUS TIMES. THIS CLOCK HAS A RED BULLS-EYE ON ITS FACE THAT LIGHTS UP WHEN THE HOUR IS REACHED, AND OPENINGS ARE BEGUN UPON ITS ILLUMINATION.

3. SEVERAL CONTRACTORS HAD SUBMITTED THEIR BIDS AND WERE AWAITING THE SCHEDULED OPENING TIME. APPROXIMATELY TWO MINUTES BEFORE 1:00 P.M., THE BID OPENING OFFICER ANNOUNCED THAT SUCH BIDS WOULD BE OPENED AT THE SCHEDULED TIME OF 1:00 P.M.

THE RED LIGHT FLASHED ON AT 1:00 P.M., THE BID OPENING OFFICER ANNOUNCED THAT IT WAS 1:00 P.M., THE APPOINTED TIME FOR OPENING THE BIDS, AND PROCEEDED TO OPEN THE FIRST BID. THEREUPON A MAN APPEARED IN THE DOOR OF THE ROOM WHO ATTRACTED THE BID OPENING OFFICER'S ATTENTION, AND APPROACHED THE TABLE AND ASKED IF THIS WAS WHERE THE BIDS WERE BEING OPENED. THE BID OPENING OFFICER EXAMINED THE ENVELOPE AND, NOTING THAT IT CARRIED THE IDENTIFICATION FOR THE CURRENT BID OPENING, ACCEPTED THE BID, PLACED IT ON THE TABLE AWAY FROM THE OTHER BIDS AND ASKED THE MAN TO HAVE A SEAT.

4. BIDS WERE OPENED AND READ AND, AS AGREED BY MR. SCHAUF OF COUNSEL, WHO SAT AT THE TABLE DURING THE AFOREMENTIONED EVENTS, ANNOUNCEMENT WAS MADE THAT WE WERE IN POSSESSION OF AN UNOPENED BID WHICH MAY OR MAY NOT BE CONSIDERED.

5. AS THE GROUP DISBANDED, THE BIDDERS APPROACHED THE BID OPENING TABLE AND ALL OFFERED THE OPINION THAT THE BID WAS LATE AND SHOULD NOT BE CONSIDERED.

6. LATER, MR. W. C. WILKINSON CALLED SAYING THAT HIS MAN WHO HAD DELIVERED THE BID STATED THAT HE WAS WAITING IN THE HALL OUTSIDE THE DOOR AND WAITED UNTIL THE CLOCK IN THE HALL NEARED 1:00 P.M. BEFORE ENTERING THE ROOM. HE SAID THE CLOCKS ARE APPROXIMATELY 1 MINUTE APART - THE WESTERN UNION CLOCK FASTER - THERE IS A 55 SECOND DIFFERENCE IN THE TIME, AS HE CLAIMED.

7. THE BIDS WERE READ TO MR. WILKINSON WHO STATED THAT HIS BID WAS BETWEEN THE GOVERNMENT ESTIMATE AND THE APPARENT LOW BIDDER; THEREFORE, HE WANTS HIS BID CONSIDERED.

FROM THE DOCUMENTS SUBMITTED IN SUPPORT OF YOUR PROTEST, WHICH INCLUDED A TRANSCRIPT OF A "HEARING" BEFORE THE CONTRACTING OFFICER ON JUNE 21, IT APPEARS THAT THE EVENTS LEADING UP TO SUBMISSION OF THE WILKINSON AND JENKINS BID WERE SUBSTANTIALLY AS FOLLOWS:

MR. JOHN HANNON WAS ENTRUSTED BY WILLIAM C. WILKINSON, THE PRESIDENT OF WILKINSON AND JENKINS, WITH THE RESPONSIBILITY OF PRESENTING THE COMPANY'S PREVIOUSLY PREPARED SEALED BID AT THE TIME STATED FOR BID OPENING. MR. HANNON ARRIVED AT THE DISTRICT OFFICER ABOUT 10:00 A.M., SINCE HE HAD HEARD THE BIDS "COULD HAVE BEEN OPENED AT 11:00. HE WAS INFORMED THAT 1:00 P.M. WAS THE CORRECT TIME AND STATES THAT HE DID NOT CONSIDER TURNING THE BID IN AT THE EARLIER TIME AS HE "DIDN'T WANT TO TURN IT IN UNTIL RIGHT BEFORE 1:00." MR. HANNON TURNED THE BID OVER TO HIS SON, RONNIE HANNON, WHO RETAINED IT UNTIL HE FINALLY DELIVERED IT TO THE BID OPENING ROOM. BOTH HANNONS AVER THAT THEY SET THEIR WATCHES WITH A CLOCK IN THE CORRIDOR, AND RECHECKED THEM WITH OTHER CLOCKS ON THE GROUND FLOOR OF THE BUILDING. NEITHER ENTERED THE FIRST FLOOR BID ROOM PRIOR TO THEIR ENTRANCE NEAR BID OPENING TIME. BOTH HANNONS ALLEGE THAT RONNIE HANNON ENTERED THE BID OPENING ROOM TWO MINUTES BEFORE BID OPENING TIME BY THE CORRIDOR CLOCK. ADDITIONALLY, RONNIE ALLEGES THAT HE WENT DIRECTLY TO THE BID OPENING DESK, GAVE THE BID ENVELOPE TO MR. SCHAUF, WHO HANDED IT TO THE BID OPENING OFFICER, WHEREUPON THAT OFFICIAL EITHER TOLD HIM HE WAS "RIGHT ON THE NOSE" OR THAT HE "MADE IT BY THE NOSE".

THEREAFTER ACCORDING TO RONNIE HANNON'S TESTIMONY AT THE "HEARING," THE BID OPENING OFFICER ASKED HIM TO SIT DOWN, THEN SAID IT WAS TIME FOR THE BIDS TO BE OPENED, AND PROCEEDED TO OPEN THE FIRST BID.

YOU CONTEND THAT SINCE THE IFB SET THE BID OPENING AT 1:00 P.M. "LOCAL TIME," AND THE HANNONS WERE NOT AWARE OF THE SPECIAL CLOCK IN THE BID OPENING ROOM THEY WERE JUSTIFIED IN RELYING ON THE CORRIDOR CLOCKS AS CORRECTLY REFLECTING "LOCAL TIME," AND THE BID SHOULD THEREFORE BE CONSIDERED AS RECEIVED IN TIME.

ALTERNATIVELY, YOU CONTEND THAT THE BID OPENING OFFICER'S STATEMENT TO RONNIE HANNON THAT HE WAS "RIGHT ON THE NOSE" INDICATES THAT THE BID WAS TIMELY DELIVERED EVEN IF BID OPENING TIME IS DETERMINED BY THE CLOCK IN THE BID OPENING ROOM.

FINALLY, YOU CONTEND THAT EVEN IF THE BID WAS DELIVERED AFTER THE BID OPENING TIME, IT MUST HAVE BEEN DELIVERED LESS THAN 1 MINUTE AFTER BID OPENING TIME. IN VIEW THEREOF, AND SINCE IT IS UNDISPUTED THAT NO BID HAD BEEN OPENED AND READ AT THE TIME, YOU CONTEND THAT NO COMPETITIVE ADVANTAGE COULD ACCRUE TO WILKINSON AND JENKINS; THAT IT WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS IF THE BID IS NOW OPENED AND CONSIDERED FOR AWARD; AND IT WOULD THEREFORE BE IN THE BEST INTEREST OF THE GOVERNMENT TO DO SO SINCE THE BID IS LOW BY MORE THAN $40,000.

WITH RESPECT TO YOUR CONTENTION THAT "LOCAL TIME," AS THAT TERM IS USED IN THE IFB, SHOULD BE CONSIDERED TO MEAN THE TIME SHOWN BY THE CORRIDOR CLOCKS RATHER THAN THE BID OPENING ROOM CLOCK, IT SHOULD BE NOTED THAT THE INCLUSION OF THIS TERM IN INVITATIONS FOR BIDS IS ATTRIBUTABLE TO A DECISION OF THIS OFFICE WHICH DIRECTED ITS USE TO PRECLUDE CONFUSION RESULTING FROM USE OF "EASTERN STANDARD TIME," "CENTRAL STANDARD TIME," "DAYLIGHT SAVINGS TIME" AND OTHER SIMILAR TERMS. 49 COMP. GEN. 164 (1969). WHILE NO CONSIDERATION WAS GIVEN IN THE DECISION AS TO HOW THE CORRECT "LOCAL TIME" WAS TO BE DETERMINED FOR BID OPENING PURPOSES, IT IS OUR OPINION THAT THE TERM MUST, ON MILITARY PROCUREMENTS, BE READ IN CONJUNCTION WITH ASPR 2-402.1, WHICH PROVIDES AS FOLLOWS:

THE OFFICIAL DESIGNATED AS THE BID OPENING OFFICER SHALL DECIDE WHEN THE BID OPENING TIME HAS ARRIVED, AND SHALL SO DECLARE TO THOSE PRESENT. 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.

THE RECORD INDICATES THAT THE CLOCK IN THE BID OPENING ROOM WAS A SPECIAL CLOCK REGULATED BY WESTERN UNION TO ACCURATELY REFLECT NAVAL OBSERVATORY TIME. THE RECORD DOES NOT INDICATE THAT THE CORRIDOR CLOCKS WERE SO REGULATED, AND THERE IS NO VALID BASIS FOR ASSUMING THAT THE CORRIDOR CLOCKS REFLECTED THE CORRECT LOCAL TIME WHILE THE CLOCK IN THE BID OPENING ROOM WAS INCORRECT. UNDER THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE BID OPENING OFFICER ACTED PROPERLY IN RELYING ON THE CLOCK IN THE BID OPENING ROOM AS ESTABLISHING THE TIME FOR BID OPENING, AND THAT THE HANNONS WERE NOT JUSTIFIED IN RELYING UPON THE CORRIDOR CLOCKS EVEN THOUGH THEY WERE IN IGNORANCE OF THE EXISTENCE OF THE BID OPENING CLOCK.

CONCERNING YOUR CONTENTION THAT THE BID WAS DELIVERED TO THE BID OPENING OFFICER ON TIME, WE NOTE THAT RONNIE HANNON'S TESTIMONY AT THE "HEARING" INDICATED HE DID NOT NOTICE THE CLOCK IN THE BID OPENING ROOM WHEN HE ENTERED, AND HE WAS THEREFORE UNABLE TO TESTIFY AS TO THE TIME REFLECTED BY THAT CLOCK. THE ONLY BASIS FOR CONCLUDING THAT THE BID WAS TIMELY BY THAT CLOCK IS THE TESTIMONY OF RONNIE HANNON THAT THE BID OPENING OFFICER EITHER SAID HE WAS "RIGHT ON THE NOSE" (PAGE 16 OF THE TRANSCRIPT) OR THAT HE "MADE IT BY THE NOSE" (PAGE 34 OF THE TRANSCRIPT).

CONVERSELY, THE BID OPENING OFFICER'S MEMO OF JUNE 17, WHICH APPARENTLY WAS WRITTEN IMMEDIATELY AFTER THE BID OPENING AND MUST THEREFORE BE GIVEN FULL CREDENCE, INDICATES THAT THE RED LIGHT ON THE CLOCK FLASHED, THE BID OPENING OFFICER ANNOUNCED THAT IT WAS TIME FOR OPENING OF BIDS, AND BEGAN TO OPEN THE FIRST BID BEFORE MR. HANNON APPEARED. THAT THIS WAS IN FACT THE CASE WOULD APPEAR TO BE BORNE OUT BY THE ADVICE IN PARAGRAPH 5 OF THE STATEMENT THAT ALL OTHER BIDDERS INDICATED, AS THEY LEFT THE ROOM, THAT THE WILKINSON AND JENKINS BID SHOULD BE CONSIDERED A LATE BID. ON THE RECORD, WE THEREFORE CONCLUDE THAT THE BID WAS NOT DELIVERED UNTIL AFTER 1:00 P.M., AS SHOWN BY THE CLOCK IN THE BID OPENING ROOM.

WITH RESPECT TO YOUR FINAL CONTENTION, THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO CONSIDER THE BID, THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH FURNISH DIRECTION AND RULES APPLICABLE TO BID OPENINGS, ARE QUITE DETAILED AND SPECIFIC AS TO THE HANDLING OF LATE BIDS. FIRST, ASPR 2-303.1 PROVIDES THAT:

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 (BUT SEE 2-402.3). LATE BIDS SHALL NOT BE CONSIDERED FOR AWARD EXCEPT AS AUTHORIZED IN THIS PARAGRAPH 2-303.

ADDITIONAL, ASPR 2-303.5 WHICH DEALS WITH HAND-CARRIED BIDS AND HENCE IS FOR APPLICABLE HERE READS:

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

THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THESE, AND OTHER SIMILAR, REGULATIONS MUST BE STRICTLY CONSTRUED AND ENFORCED. THUS, IN OUR DECISION REPORTED AT 47 COMP. GEN. 784 (1968), WHERE A BID WAS HAND DELIVERED LATE, BUT PRIOR TO OPENING OF THE FIRST BID, WE SAID:

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, 1957.

WHILE THE BID IN THAT CASE WAS DELIVERED 15 MINUTES AFTER THE TIME SET FOR BID OPENING, WE ARE AWARE OF NO REASON WHY A DISTINCTION SHOULD BE MADE, OR A DIFFERENT CONCLUSION SHOULD BE REACHED WHERE, AS IN THE INSTANT CASE, IT APPEARS THAT THE BID WAS HAND DELIVERED ABOUT 55 SECONDS AFTER BID OPENING TIME. SEE, IN THIS CONNECTION, B-137550, DECEMBER 18, 1958, IN WHICH WE REACHED THE SAME CONCLUSION WHERE A BID WAS 5 MINUTES LATE; B- 130889, MARCH 26, 1957, WHERE THE BID WAS 2 MINUTES LATE; AND B-164073, APRIL 24, 1968, WHERE THE BID WAS 4 MINUTES LATE BY THE BID OPENING ROOM CLOCK, BUT ONLY 1 MINUTE LATE BY THE TIME SUBSEQUENTLY DETERMINED TO BE THE CORRECT TIME. AS STATED REPEATEDLY IN THE DECISIONS OF THIS OFFICE, WE BELIEVE THAT MAINTENANCE OF CONFIDENCE IN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS OF MUCH GREATER IMPORTANCE THAN A MONETARY SAVING IN AN INDIVIDUAL PROCUREMENT.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE BID OF WILKINSON AND JENKINS MUST BE CONSIDERED A LATE BID AND CANNOT PROPERLY BE CONSIDERED FOR AWARD.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.