B-173409, NOV 16, 1971

B-173409, NOV 16, 1971

BID PROTEST - MODIFICATION OF BIDS - BIDDING SITE DECISION DENYING PROTEST AGAINST AWARDS OF CONTRACTS TO ANY OTHER FIRMS UNDER SEVERAL FORMALLY ADVERTISED SOLICITATIONS BY THE NAVAL FACILITIES ENGINEERING COMMAND, ATLANTIC DIVISION. PROTESTANT SOUGHT POSTPONEMENT OF THE VARIOUS BID OPENING DATES BECAUSE, DUE TO A WESTERN UNION STRIKE, IT WOULD NOT BE ABLE TO SUBMIT TELEGRAPHIC MODIFICATIONS TO ITS BIDS. WHILE THE CONTRACTING OFFICIALS HAD AUTHORITY UNDER ASPR 2-402.3(I) AND (II) TO GRANT THE REQUEST, THE COMP. GEN. CANNOT FAULT THEIR REFUSAL TO DO SO. SINCE PROTESTANT'S REQUEST ARRIVED AFTER THE FIRST BID OPENING DATE AND THERE IS NO PROCUREMENT REGULATION WHICH REQUIRED THE NAVY TO POSTPONE BID OPENING OR TO PROVIDE BIDDERS WITH A MORE READILY ACCESSIBLE BIDDING SITE (NORFOLK, VA. RATHER THAN GUANTANAMO BAY, CUBA, AS SUGGESTED BY PROTESTANT), THE PROTEST MUST BE DENIED.

TO BURDITT AND CALKINS:

WE REFER TO THE LETTER OF YOUR CLIENT, PREMIER ELECTRICAL CONSTRUCTION COMPANY (PREMIER), DATED SEPTEMBER 17, 1971, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARDS TO OTHER FIRMS OF CONTRACTS NOS. N66144-71-C -0007, -0009, -0010, -0011, -0012, -0013, 0014 AND -0015 BY THE NAVAL FACILITIES ENGINEERING COMMAND (NAVY), ATLANTIC DIVISION, NORFOLK, VIRGINIA.

FOR THE REASONS HEREINAFTER STATED, THE PROTEST OF PREMIER IS DENIED.

THE FORMALLY ADVERTISED SOLICITATIONS UNDER WHICH THE CONTRACTS WERE AWARDED PRESCRIBED BID OPENING DATES FROM JUNE 11 THROUGH 23, 1971. LETTER DATED JUNE 12, 1971, WHICH WAS RECEIVED BY THE NAVY ON JUNE 14, 1971, PREMIER STATED THAT, DUE TO THE WESTERN UNION STRIKE, IT WOULD NOT BE ABLE TO SUBMIT TELEGRAPHIC MODIFICATIONS TO ITS BIDS. IN VIEW THEREOF, PREMIER REQUESTED POSTPONEMENT OF THE VARIOUS BID OPENING DATES AND, IN THE ALTERNATIVE, IF BIDS HAD BEEN OPENED ON ANY OF THE PROCUREMENTS, THAT THOSE BIDS RECEIVED IN RESPONSE TO THOSE SOLICITATIONS BE REJECTED. FURTHER, PREMIER URGED THAT THE NAVY CHANGE THE LOCATION FOR RECEIPT OF BIDS TO NORFOLK, VIRGINIA, FROM GUANTANAMO BAY, CUBA, TO PERMIT BIDDERS TO UTILIZE A MORE ACCESSIBLE SITE FOR BIDDING.

IN REPORTS TO OUR OFFICE, THE NAVY TAKES THE POSITION THAT, CONSIDERING THE DATE WHEN PREMIER'S LETTER WAS RECEIVED, "IT WAS TOO LATE TO POSTPONE THE BID OPENING DATES UNTIL THE STRIKE WOULD BE OVER, INASMUCH AS THESE CONTRACTS WERE ALL FUNDED WITH ANNUAL FUNDS EXPIRING JUNE 30, 1971, AND POSTPONEMENT OF BID OPENING DATES BEYOND THAT DATE WOULD HAVE MEANT LOSS OF THESE PROJECTS." IN ADDITION, THE FILE REFLECTS DISAGREEMENT BETWEEN YOU AND THE NAVY AS TO THE FEASIBILITY OF PRACTICALLY IMPLEMENTING ANY ACTION WITH REFERENCE TO YOUR JUNE 12 LETTER.

OUR OFFICE HAS HAD OCCASION TO CONSIDER SITUATIONS ANALOGOUS TO THE ONE INVOLVED HERE. IN THOSE CASES, CERTAIN UNUSUAL EVENTS, SUCH AS A POSTAL STRIKE, NATIONAL DAY OF MOURNING, OR SEVERE WEATHER CONDITIONS, HAVE RESULTED IN BIDS EITHER HAVING BEEN REJECTED BECAUSE RECEIVED AFTER THE TIME SET FOR THEIR RECEIPT OR POSTPONEMENT OF BID OPENINGS TO PERMIT THE ACCEPTANCE OF LATE BIDS. SEE 49 COMP. GEN. 733 (1970); B 169719, AUGUST 25, 1970; B-158464, MARCH 28, 1966; B-153288, MARCH 19, 1964; AND B- 152999, MARCH 11, 1964. IMPLICIT IN THESE DECISIONS IS THE CONTINUING VIEW THAT OUR OFFICE WILL ORDINARILY ACQUIESCE IN THE DISCRETIONARY DETERMINATIONS OF CONTRACTING OFFICIALS IN DEALING WITH SUCH UNUSUAL SITUATIONS. FURTHERMORE, THE PROVISIONS OF PARAGRAPH 2 402.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) CLOTHE THE CONTRACTING OFFICER WITH A CONSIDERABLE AMOUNT OF DISCRETION IN BOTH FORMALLY AND INFORMALLY POSTPONING BID OPENINGS:

"(I) WHEN THE CONTRACTING OFFICER HAS REASON TO BELIEVE THAT THE BIDS OF AN IMPORTANT SEGMENT OF BIDDERS HAVE BEEN DELAYED IN THE MAILS FOR CAUSES BEYOND THEIR CONTROL AND WITHOUT THEIR FAULT OR NEGLIGENCE (SUCH AS, BUT NOT LIMITED TO, FLOOD, FIRE, ACCIDENT, WEATHER CONDITIONS OR STRIKES); OR

"(II) WHEN EMERGENCY OR UNANTICIPATED EVENTS INTERRUPT NORMAL GOVERNMENTAL PROCESSES SO THAT THE CONDUCT OF BID OPENINGS AS SCHEDULED IS IMPRACTICABLE."

WHILE THE NAVY CONTRACTING OFFICIALS MAY HAVE INVOKED THIS AUTHORITY, THEY CHOSE NOT TO DO SO FOR REASONS WE CANNOT FAULT. NOTHING IN THAT REGULATION OR THE PROCUREMENT REGULATIONS REQUIRED THE NAVY TO POSTPONE BID OPENINGS OR PROVIDE BIDDERS WITH A MORE READILY ACCESSIBLE BIDDING SITE. SEE ASPR 2-402.1, ET SEQ.

MOREOVER, OUR OFFICE HAS HELD THAT THE INTEREST OF THE GOVERNMENT AND THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM REQUIRE THAT, AFTER BIDS ARE OPENED AND BIDDERS' PRICES DISCLOSED, SOLICITATIONS SHOULD BE CANCELED ONLY FOR THE MOST COGENT AND COMPELLING REASONS. SEE 49 COMP. GEN. 417, 425 (1970); AND ASPR 2-404.1. WE DO NOT BELIEVE THAT MERELY BECAUSE A BIDDER MIGHT NOT HAVE BEEN ABLE TO SUBMIT TELEGRAPHIC MODIFICATIONS TO VARIOUS BIDS IN THESE CIRCUMSTANCES CONSTITUTES A COGENT OR COMPELLING REASON TO REJECT ALL BIDS.

WE OBSERVE THAT AT LEAST THREE BIDDERS RESPONDED TO EACH OF THE EIGHT SOLICITATIONS IN QUESTION, EVIDENCING THE EXISTENCE OF COMPETITION.

ALSO, PREMIER WAS ABLE TO SUBMIT TIMELY BIDS ON SEVEN OF THE SOLICITATIONS AND AWARDS WERE MADE TO VARIOUS BIDDERS WITHIN CLOSE PROXIMITY OF THE GOVERNMENT ESTIMATES FOR THE PROJECTS.