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Lieutenant Commander S. J. Koonce, CEC, U.S. Navy, conducted the bid opening. Lieutenant Commander Koonce had set his watch by Western Union time, which was four minutes ahead of the correct time. At a time when his watch showed 3:00 P.M. and the Naval Observatory synchronized clock on the wall of the bid opening room showed 2:56 Á.M. Lieutenant Commander Koonce announced that it was 3:00 P.M. and asked whether there were any additional bids. In the absence of a response he proceeded with the opening of bids on the Puerto Rico project. He was in the process of reading the first bid item of the first bid opened on that project when representatives of Uhlhorn entered the bid room, which was on the second floor, and attempted to submit a bid. At that time, the clock on the wall showed the correct time of 2:58 P.M. and Lieutenant Commander Koonce's watch showed 3:02 P.M. Lieutenant Commander Koonce stated it was after 3:00 P.M. and he therefore could not accept the Uhlhorn bid, despite the fact the wall clock showed 2:58 P.M. He refused to accept and hold the Uhlhorn bid unopened and instructed its representatives to be seated or to leave the room. They thereupon took seats with the bid still in their possession.

After completion of the reading of the other bids, the Uhlhorn representatives again approached Lieutenant Commander Koonce and stated they wished to protest his refusal to accept their bid, He again refused to accept the bid, whereupon the bid was opened and shown to him. Lieutenant Commander Koonce saw the amount thereon of what appeared to be the combination bid which was two million, nine hundred and some thousand dollars. The lowest bid which had been read was in excess of $3,000,000 for the combined projects. The Uhlhorn representatives then left with their bid, went to pick up Mr. Uhlhorn at his hotel, and returned with Mr. Uhlhom approximately 30 minutes later.

Upon their return, further conversation on the matter was had, and after receiving advice from the Area Public Works Officer, the Uhlhorn bid and some 45 pages of worksheets which Mr. Uhlhorn had brought with him were sealed and kept in the custody of the Navy. Subsequent examination of the bid reveals that the combination bid is in the amount of $2,959,400 and that the worksheets coincide with and support that figure.

The position taken by the bid officer is that he had authority to declare when the time for bid opening arrived and that this is conclusive on all bidders, regardless of the actual time. In this connection paragraph 2–402.1 of the Armed Services Procurement Regulation provides that the official designated as the bid opening officer shall decide when the time set for the bid opening has arrived, and shall so declare to those present. The Instructions to Bidders in this case provided also that no bid would be considered if received by the Navy after the reading of the bids had begun.

We do not construe the provisions of section 2-402.1, ASPR, as vesting in the bid opening officer any authority to arbitrarily determine a bid closing time earlier than the hour specified in the invitation for bids, at least in any case where such action operates to the detriment of a prospective bidder. Nor are we called upon in this case to decide what should be done in a case where significant bid information had been revealed by the premature reading of bids before the attempted tender of another bid. Only one bid had been read in the present case, that of a company which did not bid on the combined projects, and whose bid was the fourth lowest on the one project on which it did bid. It is therefore apparent that Uhlhorn had no possibility of advantage by reason of the fact that the reading of bids had begun, and we therefore do not regard the provision in the Instruction to Bidders as precluding consideration of its bid under the particular circumstances in this case.

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For the reasons given it is our conclusion that the bid of Uhlhorn International was validly tendered to the Government prior to the bid opening hour and should be considered for award. * * *

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A disappointed bidder on a Government contract, we conclude, has standing to contest an award to another whose lower bid was tardy and wrongfull

considered, but the District Court, under the circumstances, properly denied injunctive relief and limited the plaintiff to recovery of its bid preparation costs.

On February 20, 1973, the United States Army Corps of Engineers advertised for bids for barracks rehabilitation at Fort George C. Meade, Maryland. The advertisement specified that bids would be received until 3:00 P.M., March 13, 1973, at the office of the District Engineer in Baltimore, Maryland. At that time the bids would be publicly opened.

The time for opening arrived, and the box containing the submitted bids was brought into the room in which the opening was to take place. The Army's bid officer opened the box and began sorting out the bids. Minutes later at 3:04 P.M., a representative of A & M Gregos, Inc. came forward and placed Gregos' bid with the others. The bid was accepted, and the bid officer proceeded to make a bid opening announcement with the statement, "It is now three o'clock, time to open bids on Invitation No. DACA 31-73-B-0066. Are all bids in?" The first bid was then opened at 3:05 P.M. At the conclusion of the ceremony, Gregos proved to be the low bidder at $2,877,000. The next low bidder was the plaintiff, William F. Wilke, Inc., at $2,941,349.

Immediately after the opening ceremony, Wilke's representative orally protested the acceptance of Gregos' bid. This was followed by a telegram and a letter from Wilke, both asserting the tardiness of Gregos' bid.

The Army considered Wilke's objection but finally decided to accept Gregos' bid nonetheless. A notice of award was issued to Gregos on March 28, 1973.

After being notified of this action, Wilke sought judicial relief in the United States District Court for the District of Maryland. That court granted a temporary restraining order on April 4, 1973, to stop the Army from taking further steps to effect performance of the contract.

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After a hearing on Wilke's request for a preliminary injunction and submission of motions and memoranda by the parties, the District Court filed an opinion on April 16, 1973. To the extent that Wilke sought declaratory judgment, the court found Gregos' bid "untimely, nonresponsive, contrary to the terms of the invitation, void and of no effect." But the court declined to grant injunctive relief that would effectively put Wilke in the position of successful bidder. Pursuant to the Army's and Gregos' requests, Gregos was allowed to answer as a party defendant.

All parties unsuccessfully moved to have the judgment of the District Court altered.

For the reasons given therein, we affirm the District Court's opinion 357 F. Supp. 988 (D. Md. 1973). We agree that Gregos' bid was not timely filed under the terms of the invitation or the applicable statute and regulations. 10 U.S.C. 8 2305(c); 32 C.F.R.881-101 et seq. Such a finding is con

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