B-174401, FEB 7, 1972

B-174401, FEB 7, 1972

BID PROTEST - TIMELINESS OF SUBMISSION DECISION DENYING PROTEST OF PERIPHERAL DATA MACHINES, INC., AGAINST THE REFUSAL OF THE FEDERAL AVIATION ADMINISTRATION TO CONSIDER ITS PROPOSAL UNDER AN IFB. IT IS THE RESPONSIBILITY OF EACH BIDDER TO SEE THAT ITS BID IS TIMELY RECEIVED. B-130889, MARCH 26, 1957. FURTHER, IT IS MORE IN THE PUBLIC INTEREST TO PRESERVE THE RULES OF COMPETITIVE BIDDING THAN TO OBTAIN A PECUNIARY ADVANTAGE BY ACCEPTING A LOW BID SUBMITTED IN VIOLATION OF THOSE RULES. SEE 17 COMP. GEN. 555 (1938).

TO TUFO, JOHNSTON & ZUCCOTTI:

WE REFER TO YOUR LETTER OF OCTOBER 27, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF PERIPHERAL DATA MACHINES, INC. (PER DATA), THE REFUSAL OF THE FEDERAL AVIATION ADMINISTRATION (FAA) TO CONSIDER THEIR BID FOR AWARD UNDER INVITATION FOR BIDS (IFB) WA4M-1 0501/1, ISSUED ON AUGUST 23, 1971.

THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED UNTIL 3:00 P.M., LOCAL TIME, ON SEPTEMBER 8, 1971, AT THE PLACE FOR RECEIPT OF PROPOSALS, AND PUBLICLY OPENED IN THE BID ROOM (408), FAA HEADQUARTERS BUILDING. PER DATA'S BID IS REPORTED TO HAVE BEEN TENDERED AFTER THAT TIME AND AFTER OPENING AND READING OF BIDS HAD COMMENCED. THE PROCURING AGENCY'S REPORT OF THE FACTS AND CIRCUMSTANCES CONCERNING THE OPENING OF BIDS AND THE PROFFER OF YOUR LATE BID IS AS FOLLOWS:

"AT EXACTLY 3:00 P.M. BY THE WALL CLOCK IN ROOM 408 OF THE FAA HEADQUARTERS BUILDING, THE DOOR TO THE BID OPENING ROOM (ROOM 408B) WAS CLOSED, AND MR. CAUDILL (FAA CONTRACT SPECIALIST) ANNOUNCED THE NAME OF THE FIRST BIDDER, OPENED THE BID AND CALLED OUT THE BID PRICES. AFTER READING OF THE FIRST BID AND JUST AS MR. CAUDILL CALLED OUT THE NAME OF THE SECOND BIDDER, MR. HAGA (AGENT FOR PER DATA) ENTERED ROOM 408B, AND THE FAA RECEPTIONIST HANDED PER DATA'S BID TO MR. CAUDILL. ***

"SHORTLY AFTER THE CLOSING OF THE DOOR TO ROOM 408B, MR. HAGA SUBMITTED PER DATA'S BID TO THE RECEPTIONIST IN ROOM 408 *** WHO ACCEPTED THE BID, PROMPTLY TOOK IT TO THE TIME STAMP MACHINE, A DISTANCE OF APPROXIMATELY 20 FEET, AND TIME STAMPED IT IN AT 3:02 P.M. SHE THEN, AS AFORESAID, TOOK THE BID TO ROOM 408B AND HANDED IT TO MR. CAUDILL. ***

"FOLLOWING OPENING AND READING OF ALL TIMELY BIDS, MR. CAUDILL STATED THAT PER DATA'S BID WOULD NOT BE OPENED UNTIL IT WAS DETERMINED WHETHER IT COULD BE CONSIDERED FOR AWARD."

YOUR VERSION OF THE FACTS, AS RELATED IN YOUR LETTERS OF PROTEST, DIFFERS IN TWO RESPECTS FROM THAT OF THE AGENCY STATED ABOVE. YOU ALLEGE THAT PER DATA'S BID WAS SUBMITTED TO THE FAA REPRESENTATIVE PRIOR TO THE READING OF THE FIRST BID. FURTHER, YOU ALLEGE THAT PER DATA'S BID WAS SUBMITTED ON TIME WHEN MEASURED BY THE CLOCK IN THE COMMUNICATIONS CENTER AS OPPOSED TO THE TIME STAMP CLOCK.

YOU CONTEND THAT THE BID WAS SUBMITTED ON TIME AS MEASURED BY THE CLOCK IN THE COMMUNICATIONS CENTER. HOWEVER, BECAUSE THE CONTRACTING OFFICER WAS JUDGING THE TIME BY THE WALL CLOCK IN THE BID OPENING ROOM, HE DECIDED TO PROCEED WITH THE BID OPENING WHEN THAT CLOCK READ 3:00 P.M. UNDER FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.402 THE BID OPENING OFFICER IS GIVEN THE AUTHORITY TO DECIDE WHEN THE TIME SET FOR OPENING HAS ARRIVED. IN THIS INSTANCE HE DECIDED THAT SUCH TIME HAD ARRIVED APPROXIMATELY TWO MINUTES BEFORE PER DATA'S BID HAD BEEN HANDED TO HIM. THIS APPEARS TO HAVE BEEN A REASONABLE DETERMINATION BASED ON THE INFORMATION AVAILABLE, THE TIME SHOWN BY THE CLOCK ON THE WALL OF THE BID OPENING ROOM. WE FIND THIS TO BE A REASONABLE EXERCISE OF THE BID OPENING OFFICER'S AUTHORITY EVEN IF, AS YOU ALLEGE, THE CLOCK IN THE COMMUNICATIONS CENTER WAS FOUND THE NEXT DAY TO HAVE BEEN TWO MINUTES SLOWER.

WE COME NOW TO YOUR CONTENTION THAT PER DATA'S BID WAS SUBMITTED BEFORE ANY BIDS WERE OPENED, A CONTENTION IN CONFLICT WITH THE POSITION OF THE FAA. WE HAVE CONSIDERED CASES WHERE BIDDERS' REPRESENTATIVES HAND- DELIVERED BIDS AFTER THE TIME SET FOR THE FINAL RECEIPT OF BIDS BUT BEFORE ANY BIDS WERE OPENED. B-130889, MARCH 26, 1957; B-137550, DECEMBER 18, 1958. IN THE FIRST-CITED CASE, THE BID WAS DELIVERED 2 MINUTES AFTER THE DEADLINE. IN THE SECOND CASE IT WAS DELIVERED 5 MINUTES AFTER THE DEADLINE. IN B-137550 THE FOLLOWING WAS QUOTED WITH APPROVAL FROM B- 130889:

"IT HAS BEEN CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF BIDDERS TO SEE THAT THEIR BIDS REACH THE DESIGNATED OFFICE BEFORE THE TIME FIXED FOR THE OPENING OF THE BIDS. THE PURPOSE OF THE REQUIREMENT IS TO GIVE ALL BIDDERS AN EQUAL OPPORTUNITY, TO PREVENT FRAUD, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM.

"UNDER THE EXPRESS TERMS OF THE INVITATION, HAND CARRIED BIDS WERE REQUIRED TO BE SUBMITTED PRIOR TO 10:00 A.M. YOUR BID WAS NOT SUBMITTED PRIOR TO THE TIME SPECIFIED. YOUR LACK OF KNOWLEDGE OF THE OTHER BIDS AND GOOD FAITH ARE, UNDER THE CIRCUMSTANCES, NOT FOR CONSIDERATION. THERE MUST BE A TIME AFTER WHICH BIDS MAY NOT BE RECEIVED, AND TO PERMIT SUCH CONSIDERATIONS TO AFFECT OR ALTER THE FIXED AND EXACT TIME CLEARLY STATED IN AN INVITATION WOULD, IN OUR OPINION, TEND TO WEAKEN THE COMPETITIVE SYSTEM. WHILE THE REQUIREMENT IN CERTAIN INSTANCES MAY OPERATE HARSHLY ANY RELAXATION OF THE RULE WOULD INEVITABLY CREATE CONFUSION AND DISAGREEMENTS AS TO ITS APPLICABILITY IN MANY CASES AND FACILITATE THE PERPETRATION OF FRAUDS."

YOU HAVE CITED 34 COMP. GEN. 150 (1954) FOR THE PROPOSITION THAT A BID DELIVERED THREE MINUTES LATE COULD BE CONSIDERED SINCE OTHER BIDDERS WERE NOT PREJUDICED. IN THE CITED CASE, THERE WAS EVIDENCE OF "EXTRAORDINARY DELAY CAUSED BY GOVERNMENT PERSONNEL" WHEN THE BIDDER ATTEMPTED TO SECURE A PASS TO ENTER THE BASE AND DEPOSIT HIS BID. THEREFORE, THIS CASE CONCERNED A POSITIVE ACT OF THE GOVERNMENT DIRECTLY CAUSING AN UNANTICIPATABLE DELAY. THE CASE AT HAND IS NOT ANALOGOUS.

IN THE CIRCUMSTANCES, WE FIND NO REASON TO DISAGREE WITH THE ADMINISTRATIVE ACTION. THE FACT THAT PER DATA'S BID MAY HAVE BEEN LOW DOES NOT WARRANT AN EXCEPTION TO THE REGULATIONS. IT IS MORE IN THE PUBLIC INTEREST TO ABIDE BY THE RULES OF COMPETITIVE BIDDING THAN TO OBTAIN A PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF SUCH RULES. 17 COMP. GEN. 554 (1938).

FOR THE REASONS STATED YOUR PROTEST IS DENIED.