B-167641, SEPTEMBER 11, 1969, 49 COMP. GEN. 164

B-167641, SEPTEMBER 11, 1969, 49 COMP. GEN. 164

BIDS -- LATE -- UNIFORM TIME ACT EFFECT UNDER AN INVITATION PROVIDING FOR BIDS TO BE OPENED AT 11 A.M. CENTRAL STANDARD TIME (C.S.T.), ON MAY 28, 1969, A BID HAND-CARRIED AND DELIVERED AT 11:20 A.M., C.S.T., AFTER BIDS HAD BEEN READ WAS PROPERLY REJECTED AS A LATE BID. THE CONTENTION THAT BECAUSE THE INVITATION DID NOT INDICATE "C.S.T." WOULD BE INTERPRETED AS CENTRAL DAYLIGHT SAVINGS TIME, 11 A.M., C.S.T., MEANT 12 NOON, DAYLIGHT SAVINGS TIME, IGNORES THE FACT THAT WITH THE ENACTMENT OF PUBLIC LAW 89-387, EFFECTIVE APRIL 1, 1967, THERE IS NO DISTINCTION BETWEEN STANDARD AND DAYLIGHT TIME, AND THAT WITHIN EACH TIME ZONE THERE IS ONLY THE PREESTABLISHED STANDARD TIME REGARDLESS THAT DURING A CERTAIN PORTION OF THE YEAR STANDARD TIME IS ADVANCED 1 HOUR, THUS MAKING STANDARD TIME AND THE POPULAR REFERENCE TO "DAYLIGHT SAVING TIME" ONE AND THE SAME. TO PRECLUDE FUTURE DIFFERENCES IN OPINION "LOCAL TIME AT PLACE OF BID OPENING" WILL BE SUBSTITUTED FOR "STANDARD TIME."

TO THE RYAN CONTRACTING CO., INC., SEPTEMBER 11, 1969:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 26, AUGUST 6 AND 12, 1969, PROTESTING AGAINST THE REFUSAL OF THE CONTRACTING OFFICER TO CONSIDER YOUR BIDS SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DA-CW-66-69 B-0081.

THE SUBJECT INVITATION WAS ISSUED ON MAY 2, 1969, BY THE MEMPHIS DISTRICT, CORPS OF ENGINEERS, REQUESTING BIDS FOR STONE DIKE CONSTRUCTION AT ISLAND NO. 1, KENTUCKY, AND CAMPBELL, KENTUCKY, AND PROVIDED FOR OPENING OF BIDS AT 11 A.M., C.S.T., MAY 28, 1969, AT MEMPHIS, TENNESSEE. SIX BIDS WERE RECEIVED AND OPENED AT THE HOUR STATED IN THE INVITATION. AT 11:20 A.M., AFTER THE READING OF BIDS HAD BEEN COMPLETED, A REPRESENTATIVE OF YOUR COMPANY PRESENTED A BID WHICH THE GOVERNMENT REPRESENTATIVE REFUSED TO ACCEPT ON THE GROUND THAT IT WAS TENDERED LATE. ON JUNE 12, 1969, AWARD OF CONTRACT UNDER THE INVITATION WAS MADE TO THE LOW BIDDER, PATTON-TULLY TRANSPORTATION COMPANY.

IN YOUR LETTER OF JUNE 26, 1969, YOU CONTEND THAT YOUR BID WAS THE LOWEST SUBMITTED AND THAT THE REFUSAL TO ACCEPT YOUR BID WAS NEITHER FAIR NOR EQUITABLE. YOU STATE THAT THE INVITATION INDICATED THAT BIDS WERE TO BE RECEIVED UNTIL 11 A.M., C.S.T., AND THAT YOUR BID WAS PRESENTED PRIOR TO THAT TIME BECAUSE 11 A.M., C.S.T., IS THE SAME AS 12 NOON, DAYLIGHT SAVINGS TIME. YOU POINT OUT THAT THERE WAS NO INDICATION IN THE INVITATION THAT C.S.T. WOULD BE INTERPRETED TO MEAN CENTRAL DAYLIGHT SAVINGS TIME. HENCE, YOU CONTEND THAT THE INVITATION WAS AMBIGUOUS AND MISLEADING INSOFAR AS THE BID OPENING TIME IS CONCERNED.

PUBLIC LAW 89-387, EFFECTIVE APRIL 1, 1967, 15 U.S.C. 260A, PROVIDES IN PERTINENT PART, AS FOLLOWS:

SEC. 3(A) DURING THE PERIOD COMMENCING AT 2 O'CLOCK ANTEMERIDIAN ON THE LAST SUNDAY OF APRIL OF EACH YEAR AND ENDING AT 2 O'CLOCK ANTEMERIDIAN ON THE LAST SUNDAY OF OCTOBER OF EACH YEAR, THE STANDARD TIME OF EACH ZONE ESTABLISHED BY THE ACT OF MARCH 19, 1918 (15 U.S.C. 261-264), AS MODIFIED BY THE ACT OF MARCH 4, 1921 (15 U.S.C. 265), SHALL BE ADVANCED ONE HOUR AND SUCH TIME AS SO ADVANCED SHALL FOR THE PURPOSES OF SUCH ACT OF MARCH 19, 1918, AS SO MODIFIED, BE THE STANDARD TIME OF SUCH ZONE DURING SUCH PERIOD:

IN ALL STATUTES, ORDERS, RULES, AND REGULATIONS RELATING TO THE TIME OF PERFORMANCE OF ANY ACT BY ANY OFFICER OR DEPARTMENT OF THE UNITED STATES, WHETHER IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCHES OF THE GOVERNMENT, OR RELATING TO THE TIME WITHIN WHICH ANY RIGHTS SHALL ACCRUE OR DETERMINE, OR WITHIN WHICH ANY ACT SHALL OR SHALL NOT BE PERFORMED BY ANY PERSON SUBJECT TO THE JURISDICTION OF THE UNITED STATES, IT SHALL BE UNDERSTOOD AND INTENDED THAT THE TIME SHALL INSOFAR AS PRACTICABLE (AS DETERMINED BY THE INTERSTATE COMMERCE COMMISSION) BE THE UNITED STATES STANDARD TIME OF THE ZONE WITHIN WHICH THE ACT IS TO BE PERFORMED.

HAVING REGARD FOR THE ABOVE-QUOTED PROVISIONS OF LAW, IT SEEMS CLEAR THAT THERE IS NO LONGER A DISTINCTION TO BE MADE BETWEEN STANDARD TIME AND DAYLIGHT TIME. RATHER, WITHIN EACH TIME ZONE THERE IS, SINCE THE ENACTMENT OF PUBLIC LAW 89-387, ONLY THE PREESTABLISHED STANDARD TIME REGARDLESS OF THE FACT THAT DURING A CERTAIN PORTION OF THE YEAR THAT STANDARD TIME IS ADVANCED 1 HOUR. HENCE, THE STANDARD TIME OF THE VARIOUS ZONES AND THE POPULAR REFERENCE TO "DAYLIGHT SAVING TIME" MUST BE CONSIDERED AS ONE AND THE SAME. THIS BEING TRUE, THERE CAN BE NO DOUBT THAT YOUR BID, WHICH YOU HAND DELIVERED AT 11:20 A.M. CENTRAL STANDARD TIME WAS LATE AND, THEREFORE, PROPERLY NOT FOR CONSIDERATION FOR AWARD OF A CONTRACT. SEE PARAGRAPH 7(A) OF THE INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT), STANDARD FORM 22.

WHILE YOU CONTEND THAT AFTER THE EFFECTIVE DATE OF THE UNIFORM TIME ACT OF 1966, OTHER CORPS OF ENGINEER DISTRICTS AND ALSO OTHER GOVERNMENT AGENCIES HAVE, NOTWITHSTANDING THE PROVISIONS OF THE ACT, DISTINGUISHED BETWEEN STANDARD TIME AND DAYLIGHT SAVINGS TIME, THAT FACT AFFORDS NO LEGAL BASIS FOR IGNORING OR WAIVING THE SPECIFIC PROVISIONS OF THE LAW AND THE INVITATION FOR BIDS.

IN THAT CONNECTION OUR OFFICE IN A DECISION DATED OCTOBER 4, 1967, B 162430, CONCERNING A SIMILAR ISSUE AS HERE INVOLVED, HELD THAT A STRICT INTERPRETATION OF THE UNIFORM TIME ACT OF 1966, WAS NOT REQUIRED UNDER THE FACTS INVOLVED IN THAT CASE. HOWEVER, THE FACTUAL SITUATION IN THAT CASE WAS SUBSTANTIALLY DIFFERENT FROM THE FACTS INVOLVED IN THE INSTANT CASE. UNDER THE FACTS OF OUR PRIOR DECISION, A TELEGRAPHIC BID MODIFICATION WAS TRANSMITTED AT A TIME WHEN SUCH BID MODIFICATION COULD NOT HAVE BEEN BASED ON KNOWLEDGE OF THE OTHER BIDS. IN THE INSTANT CASE, KNOWLEDGE OF THE OTHER BIDS WAS POSSIBLE SINCE YOUR BID WAS TENDERED 20 MINUTES AFTER THE BIDS WERE PUBLICLY OPENED. IN SUCH CIRCUMSTANCES, THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRED THAT YOUR BID BE REJECTED. SEE PARAGRAPH 2-303.5 OF THE ARMED SERVICES PROCUREMENT REGULATION. ANOTHER IMPORTANT FACTUAL DIFFERENCE IS THAT UNDER THE FACTS OF OUR PRIOR DECISION, THE BID OPENING OCCURRED IN OMAHA, NEBRASKA, AT A TIME WHEN THE DEPARTMENT OF TRANSPORTATION HAD DEFERRED ENFORCEMENT OF THE UNIFORM TIME ACT IN NEBRASKA PENDING ADMINISTRATIVE PROCEEDINGS CONCERNING THE RELOCATION OF TIME ZONE BOUNDARIES IN NEBRASKA AND CERTAIN OTHER STATES. IN THE INSTANT CASE, THE ACT WAS IN EFFECT IN TENNESSEE DURING THE PERIOD PERTINENT TO YOUR PROTEST AND NO QUESTION OF TIME ZONE BOUNDARIES WAS INVOLVED. IN ADDITION TO THE FACTUAL DIFFERENCE, IT IS REPORTED THAT THE RECORDS SHOW THAT ON FOUR PREVIOUS OCCASIONS IN 1968, INVITATIONS FROM THE DISTRICT OFFICE INVOLVED WERE ISSUED WITH PROVISIONS THAT BIDS WOULD BE OPENED AT A CERTAIN TIME WHICH WAS SPECIFIED AS "C.S.T." IT IS FURTHER REPORTED THAT YOU SUBMITTED TIMELY BIDS IN RESPONSE TO THESE INVITATIONS AND THAT YOU APPARENTLY HAD YOUR REPRESENTATIVES ATTENDING THE BID OPENINGS. HENCE, IT APPEARS THAT YOU SHOULD HAVE BEEN WELL AWARE OF THE FACT THAT CENTRAL STANDARD TIME WAS 1 HOUR ADVANCED.

IN VIEW OF THE FOREGOING YOUR PROTEST IS DENIED. FOR YOUR INFORMATION IT IS ADMINISTRATIVELY REPORTED THAT THE FIELD OFFICES OF THE CORPS OF ENGINEERS HAVE BEEN INSTRUCTED TO USE THE PHRASE, "LOCAL TIME AT THE PLACE OF BID OPENING" IN LIEU OF "STANDARD TIME" IN ALL FUTURE SOLICITATIONS TO PRECLUDE FUTURE CONTROVERSIES SIMILAR TO THE ONE HERE INVOLVED.

REGARDING THE REQUEST IN YOUR LETTER OF AUGUST 12, AS TO WHAT STEPS YOU MAY TAKE TO APPEAL AN ADVERSE DECISION BY OUR OFFICE, YOU MAY BE ADVISED THAT OUR DECISION IS FINAL INSOFAR AS THE ADMINISTRATIVE OFFICE IS CONCERNED. ANY LEGAL PROCEEDING WHICH YOU MAY DESIRE TO PURSUE IN THE COURTS IS A MATTER FOR YOUR DETERMINATION AND WE CANNOT ADVISE YOU WITH RESPECT THERETO.