B-220561.2, APR 8, 1986

B-220561.2, APR 8, 1986

BIDS - OPENING - TIME FOR OPENING DETERMINATION DIGEST: THE BID OPENING OFFICER'S DECLARATION OF BID OPENING TIME, BASED ON THE BID OPENING ROOM CLOCK, MUST BE REGARDED AS PRIMA FACIE EVIDENCE OF THE CORRECT TIME TO RESOLVE INEVITABLE DIFFERENCES OF REPORTED TIMES. ABSENT A CLEAR INDICATION THAT THE BID OPENING ROOM CLOCK SHOWED A DIFFERENT TIME THAN ANNOUNCED, OR THAT THE OFFICER'S RELIANCE ON THE CLOCK WAS UNREASONABLE UNDER THE CIRCUMSTANCES, THE AUTHORIZED DECLARATION OF THE BID OPENING TIME ESTABLISHES THAT A SUBSEQUENTLY HAND-DELIVERED BID IS LATE.

THE HONORABLE JEFF BINGAMAN:

UNITED STATES SENATE

THIS RESPONDS TO YOUR LETTER DATED FEBRUARY 17, 1986, ON BEHALF OF K.L. CONWELL CORPORATION REGARDING THE AIR FORCE'S REJECTION OF CONWELL'S BID UNDER INVITATION FOR BIDS (IFB) NO. F29650-85-B-0017, AND OUR DECISION OF JANUARY 23, 1986 (B-220561), THAT DENIED CONWELL'S PROTEST OF THE AIR FORCE'S ACTION.

THE AIR FORCE REJECTED CONWELL'S BID AS LATE BECAUSE A CONWELL REPRESENTATIVE HAND-DELIVERED THE BID AFTER THE BID OPENING OFFICER HAD DECLARED THE ARRIVAL OF 10:30 A.M.-- THE BID OPENING TIME ESTABLISHED BY THE IFB-- AND HAD COMMENCED READING THE BID SUBMITTED BEFORE THAT TIME. THE PROBLEM AROSE IN THIS CASE BECAUSE WHILE THE BID OPENING OFFICER RELIED ON THE TIME SHOWN ON THE CLOCK IN THE BID OPENING ROOM, AN AIR FORCE EMPLOYEE IN THE BID DEPOSITORY ROOM, UPON RECEIVING THE CONWELL BID, TELEPHONED A LOCAL BANK'S TIME REPORT AND RECORDED A TIME OF 10:29 A.M. ON THE BID'S ENVELOPE.

APPLICABLE PROCUREMENT STATUTES DO NOT DETAIL THE PROCEDURES FOR SEALED BIDDING, BUT DO STATE, IN PERTINENT PART, THAT SEALED BIDS SHALL BE OPENED PUBLICLY AT THE TIME AND PLACE STATED IN THE SOLICITATION. 10 U.S.C.A. SEC. 2305(B)(3) (WEST SUPP. 1985).

THE BASIC PURPOSE OF THIS REQUIREMENT IS TO PREVENT EVEN THE APPEARANCE OF OPPORTUNITIES FOR FRAUD OR UNDUE ADVANTAGE WHICH MIGHT OCCUR IF BIDDERS COULD SUBMIT THEIR BIDS AFTER THE TIME SET FOR BID OPENING. THEREFORE, THE GENERAL RULE IS THAT A BID MUST BE IN THE HANDS OF THE BID OPENING OFFICER, OR OTHER GOVERNMENT REPRESENTATIVE AUTHORIZED TO RECEIVE IT, AT THE SCHEDULED TIME FOR OPENING. FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 14.304-1 (1984). FURTHER, A BASIC RULE GOVERNING SEALED BIDDING IS THAT A BIDDER IS RESPONSIBLE FOR DELIVERING ITS BID TO THE PROPER PLACE AT THE PROPER TIME, AND THE LATE DELIVERY OF A BID GENERALLY REQUIRES ITS REJECTION.

THE BASIC QUESTION IN CONWELL'S CASE IS WHAT DETERMINES THE ARRIVAL OF THE BID OPENING TIME, AND WHETHER THE BID OPENING OFFICER'S CONDUCT IN DECLARING THE TIME CAUSED AN OTHERWISE TIMELY SUBMITTED BID TO BE LATE.

THE FAR PROVIDES THAT THE BID OPENING OFFICER MUST DECIDE WHEN THE TIME SET FOR OPENING BIDS HAS ARRIVED, INFORM THOSE PRESENT OF THE DECISION, AND PROCEED WITH BID OPENING UNLESS THE OFFICER HAS REASON TO BELIEVE THAT BIDS OF AN IMPORTANT SEGMENT OF BIDDERS HAVE BEEN DELAYED FOR CAUSES BEYOND THEIR CONTROL AND WITHOUT THEIR FAULT OR THE NORMAL GOVERNMENTAL PROCESS IS INTERRUPTED SO THAT THE SCHEDULED OPENING OF BIDS IS IMPRACTICAL. IN OUR VIEW, THE TIME USED BY THE BID OPENING OFFICER MUST BE REGARDED AS PRIMA FACIE EVIDENCE OF THE CORRECT TIME TO RESOLVE INEVITABLE AND IRRECONCILABLE DIFFERENCES OF REPORTED TIMES. UNLESS THERE IS CLEAR INDICATION THAT THE BID OPENING ROOM CLOCK SHOWED A DIFFERENT TIME THAN THAT ANNOUNCED BY THE BID OPENING OFFICER, OR THAT THE OFFICER'S RELIANCE ON THE CLOCK WAS UNREASONABLE UNDER THE CIRCUMSTANCES, THE AUTHORIZED DECLARATION OF THE BID OPENING TIME IS DETERMINATIVE OF WHEN THE TIME FOR BID OPENING HAS ARRIVED AND THEREFORE WHETHER A BID IS LATE.

IN CONWELL'S CASE, THERE IS NOTHING IN THE RECORD ESTABLISHING THAT THE BID OPENING ROOM CLOCK IN FACT SHOWED A TIME BEFORE 10:30 A.M. WHEN THE BID OPENING OFFICER DECLARED BID OPENING. THERE ALSO WAS NOTHING SHOWING THAT THE OFFICER'S RELIANCE ON THE BID OPENING CLOCK WAS UNREASONABLE. THE FACT THAT A BANK'S TELEPHONIC TIME REPORT SUBSEQUENTLY INDICATED A TIME MINUTES BEHIND THE BID OPENING ROOM'S CLOCK DOES NOT ESTABLISH THAT THE BID OPENING OFFICER'S ACTION WAS UNREASONABLE. WHILE CONWELL ALLEGED THAT THE AIR FORCE USED THE TELEPHONIC REPORT IN PLACE OF ITS MALFUNCTIONING TIME/DATE STAMP TO RECORD THE RECEIPT OF MAILED BIDS, THE TIME/DATE STAMP DOES NOT CONTROL THE DECLARATION OF BID OPENING, AND IT IS UNDISPUTED THAT CONWELL'S BID WAS SUBMITTED AFTER THAT DECLARATION AND THE READING OF THE AWARDEE'S BID HAD COMMENCED. THEREFORE, CONSISTENT WITH THE RULES REGARDING SEALED BIDDING AND THE NEED TO PROTECT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEMS, WE FOUND THAT THE AIR FORCE PROPERLY REJECTED CONWELL'S BID SINCE IT WAS LATE AND THE GOVERNMENT WAS NOT THE PARAMOUNT CAUSE OF LATENESS.

THE CASE YOU CITE IN YOUR LETTER, VETERANS ADMINISTRATION-- REQUEST FOR ADVANCE DECISION, 62 COMP.GEN. 196 (1983), 83-1 CPD PARA. 141, IS CONSIDERABLY DIFFERENT FROM CONWELL'S CASE. IN THE 1983 CASE, A GOVERNMENT EMPLOYEE IMPROPERLY RETURNED A TIMELY SUBMITTED BID TO THE POSSESSION OF THE BIDDER WHO THEREAFTER RETURNED THE BID TO THE GOVERNMENT'S POSSESSION AFTER THE TIME SET FOR BID OPENING, BUT BEFORE THE OPENING OF ANY BIDS. THE GOVERNMENT CONSIDERED THE BID TIMELY AFTER A DETERMINATION THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD NOT BE COMPROMISED. IN CONWELL'S CASE, ON THE OTHER HAND, THE BID WAS SUBMITTED LATE AS LATENESS IS DETERMINED UNDER APPLICABLE LEGAL STANDARDS, AND THERE WAS NO BASIS FOR FINDING THAT ANY IMPROPER GOVERNMENT ACTION WAS THE CAUSE OF THE LATE DELIVERY.

WE NOTE YOUR STATEMENT THAT OUR DECISION IN THIS CASE MAKES IT APPEAR THAT WE ARE RELUCTANT TO FIND AGAINST THE GOVERNMENT IN BID PROTESTS. FACT, IN CASES SUCH AS THIS, INVOLVING LATE HAND-CARRIED BIDS, WE HAVE SUSTAINED PROTESTS BECAUSE OF SOME KIND OF IMPROPER GOVERNMENT ACTION THAT CAUSED THE BID TO BE LATE, EVEN THOUGH THERE ARE NO PROVISIONS IN THE PROCUREMENT REGULATIONS THAT ALLOW ACCEPTANCE OF A HAND-CARRIED BID THAT IS RECEIVED LATE, REGARDLESS OF THE REASON FOR THE LATENESS. SEE, E.G., ALL-STATES RR CONTRACTING, INC., B-216048.2, FEB. 11, 1985, 85-1 CPD PARA. 174; SCOT INC., 57 COMP.GEN. 119 (1977), 77-2 CPD PARA. 425; LECHASE CONSTR. CORP., B-183609, JULY 1, 1975, 75-2 CPD PARA. 5; 51 COMP.GEN. 69 (1971); SEE ALSO THE STANDARD PRODUCTS CO., B-215832, JAN. 23, 1985, 85-1 CPD PARA. 86; HYDRO FITTING MFG. CORP., 54 COMP.GEN. 999 (1975), 75-1 CPD PARA. 331 (WHERE WE APPLIED SIMILAR STANDARDS TO TELEGRAPHIC BIDS). WOULD HAVE DENIED THE PROTESTS HAD WE RELIED SOLELY ON THE TRADITIONAL APPROACH REFLECTING EXISTING REGULATORY PROVISIONS. THE CONWELL PROTEST WAS DENIED NOT BECAUSE OF ANY RELUCTANCE ON OUR PART TO SUSTAIN PROTESTS, BUT BECAUSE UNDER THE LAW OF THE GOVERNMENT DID NOT ACT IMPROPERLY.

WE TRUST THAT THIS LETTER RESPONDS TO YOUR CONCERNS ABOUT OUR DECISION. WE UNDERSTAND THAT THE AIR FORCE WILL PROVIDE YOU WITH A RESPONSE TO PARTICULAR QUESTIONS CONWELL RAISED REGARDING THE AGENCY'S BID OPENING PRACTICES AND PROCEDURES.