B-132536, JULY 18, 1957, 37 COMP. GEN. 37

B-132536: Jul 18, 1957

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INASMUCH AS THERE IS NOT APPARENT ANY POSSIBLE ADVANTAGE WHICH THE LOW BIDDER COULD HAVE OBTAINED BY THE MANNER OF SUBMISSION OF THE BID. BIDS WERE TO BE RECEIVED AT THE OFFICE OF THE BUREAU OF RECLAMATION. BIDDERS WERE ADVISED THAT " ENVELOPES CONTAINING BIDS. A SEALED ENVELOPE WAS SUBMITTED IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION BY THE ELECTRIC PUMP AND EQUIPMENT CO. THE SPECIFICATIONS WERE NOT IN A SEALED ENVELOPE AND IN PLACING THEM ON THE TABLE NO STATEMENT WAS MADE WHICH WOULD INDICATE THE NATURE OF THE DATA OR THE PURPOSE FOR WHICH THEY WERE PLACED THERE. AS HIS COMPANY'S BID WAS BEING OPENED. THE PRESIDENT OF ELECTRIC STATED THAT THE SCHEDULE CONTAINING THE UNIT PRICES OF HIS BID WAS IN THE SPECIFICATIONS.

B-132536, JULY 18, 1957, 37 COMP. GEN. 37

BIDS - DEVIATION IN METHOD OF SUBMISSION - OFFER AND ACCEPTANCE - VALIDITY THE SUBMISSION OF A LOW BID BY PLACING IT ON A TABLE IN FRONT OF THE BID OPENING BOARD, WITHOUT EXPLANATION, RATHER THAN IN A SEALED ENVELOPE APPROPRIATELY MARKED AND ADDRESSED AS REQUIRED BY THE INVITATION DOES NOT REQUIRE REJECTION OF THE BID. A LOW BIDDER WHO, AFTER SUBMITTING A BID BOND AND A LETTER INDICATING THE TOTAL PRICES IN A SEALED ENVELOPE AS REQUIRED BY THE INVITATION, PLACED ON A TABLE BEFORE THE BID OPENING BOARD, WITHOUT EXPLANATION, A COMPLETELY EXECUTED BID MAY BE REGARDED AS HAVING COMMUNICATED A VALID OFFER AND, INASMUCH AS THERE IS NOT APPARENT ANY POSSIBLE ADVANTAGE WHICH THE LOW BIDDER COULD HAVE OBTAINED BY THE MANNER OF SUBMISSION OF THE BID, IT MAY BE CONSIDERED FOR AWARD.

TO WILLIAM H. TULLER, BUREAU OF RECLAMATION, JULY 18, 1957:

YOUR LETTER OF JULY 12, 1957, WITH ENCLOSURES, REQUESTS A DECISION AS TO WHETHER THE BID OF THE ELECTRIC PUMP AND EQUIPMENT CO., INC., SUBMITTED PURSUANT TO INVITATION FOR BIDS IDENTIFIED AS SPECIFICATIONS NO. 100C-299 MAY BE CONSIDERED FOR AWARD UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

THE INVITATION SOLICITED BIDS FOR COMPLETION OF WORK ON 57 WELLS IN THE MINIDOKA PROJECT, IDAHO. BY THE TERMS OF SUPPLEMENTAL NOTICE NO. 1 TO THE INVITATION, DATED JUNE 7, 1957, BIDS WERE TO BE RECEIVED AT THE OFFICE OF THE BUREAU OF RECLAMATION, RUPERT, IDAHO, UNTIL 10 A.M., MST, JUNE 20, 1957. ON THE SECOND PAGE OF THE INVITATION, BIDDERS WERE ADVISED THAT " ENVELOPES CONTAINING BIDS, GUARANTEE, ETC., MUST BE SEALED, MARKED, AND ADDRESSED TO THE BUREAU OF RECLAMATION OFFICE INDICATED ON THE COVER OF THE SPECIFICATIONS AS THE OFFICE FOR RECEIVING BIDS.'

PRIOR TO BID OPENING, A SEALED ENVELOPE WAS SUBMITTED IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION BY THE ELECTRIC PUMP AND EQUIPMENT CO., INC. IN ADDITION, JUST PRIOR TO BID OPENING TIME THE PRESIDENT OF THE COMPANY LAID A COPY OF THE SPECIFICATIONS ON THE TABLE IN FRONT OF THE BID OPENING BOARD THERE ASSEMBLED. THE SPECIFICATIONS WERE NOT IN A SEALED ENVELOPE AND IN PLACING THEM ON THE TABLE NO STATEMENT WAS MADE WHICH WOULD INDICATE THE NATURE OF THE DATA OR THE PURPOSE FOR WHICH THEY WERE PLACED THERE. AS HIS COMPANY'S BID WAS BEING OPENED, THE PRESIDENT OF ELECTRIC STATED THAT THE SCHEDULE CONTAINING THE UNIT PRICES OF HIS BID WAS IN THE SPECIFICATIONS. THE SEALED ENVELOPE SUBMITTED BY ELECTRIC CONTAINED ONLY A LETTER INDICATING TOTAL PRICES BID FOR EACH SCHEDULE AND A BID BOND AS REQUIRED BY THE INVITATION. THE SPECIFICATIONS PLACED ON THE TABLE, HOWEVER, CONTAINED A PROPERLY EXECUTED BID COMPLETE IN ALL RESPECTS. UPON AN EXAMINATION OF ALL OF THE BIDS IT WAS DETERMINED THAT THE ELECTRIC COMPANY'S BID WAS LOW. THE NEXT LOW BIDDER IMMEDIATELY PROTESTED CONSIDERATION OF THE LOW BID BECAUSE OF THE MANNER IN WHICH IT HAD BEEN SUBMITTED.

THERE IS SOME DISPUTE BETWEEN THE ELECTRIC COMPANY REPRESENTATIVES AND THE NEXT LOW BIDDER AS TO THE TRUE STATE OF THE FACTS. THE FACTS STATED ABOVE ARE THOSE PRESENTED BY THE CONTRACTING AGENCY WHOSE STATEMENT OF SUCH FACTS ARE ACCEPTED BY OUR OFFICE IN DISPUTES OF THIS NATURE. COMP. GEN. 325.

THERE ARE TWO MATTERS FOR CONSIDERATION IN DECIDING THE CASE. THE FIRST OF THESE IS WHETHER, IN VIEW OF THE REQUIREMENT QUOTED ABOVE THAT THE BID BE SUBMITTED IN A SEALED ENVELOPE APPROPRIATELY MARKED AND ADDRESSED, THE LOW BID SHOULD BE REJECTED SINCE IT CLEARLY DID NOT CONFORM TO SUCH PROVISION. WE HAVE HELD THAT THE FAILURE TO ENCLOSE THE BID IN A SEALED ENVELOPE AS PROVIDED BY THE TERMS OF THE INVITATION IS A TECHNICALITY WHICH MAY BE WAIVED. B-35944, SEPTEMBER 4, 1943. THEREFORE, WE MUST CONCLUDE IN THE INSTANCE THAT THE MANNER OF SUBMITTING A BID NOT ENCLOSED IN AN ENVELOPE IS INSUFFICIENT TO REQUIRE REJECTION.

THE SECOND MATTER PRESENTED IS WHETHER A BID PLACED ON A TABLE BEFORE THE OPENING BOARD WITHOUT FURTHER EXPLANATION BUT WITHIN THE TIME PERMITTED FOR SUBMISSION OF BIDS MAY BE ACCEPTED. IT IS WELL RECOGNIZED THAT A BID IS AN OFFER WHICH UPON PROPER ACCEPTANCE RIPENS INTO A CONTRACT. AN OFFER TO BE THE BASIS OF A CONTRACT MUST BE COMMUNICATED TO THE OFFEREE. FARRELL V. NEILSON, 263 P.2D 264. AN OFFEROR WHO SIGNS A PROPOSED AGREEMENT AND TENDERS IT TO A PARTY WITH WHOM HE PROPOSES TO CONTRACT MAKES AN OFFER TO SUCH PARTY. FIRE ASSOCIATION OF PHILADELPHIA V. ALLIS CHALMERS MFG. CO., 129 F.1SUPP. 335, 344. THEREFORE, NO OFFER WAS MADE BY THE LOW BIDDER IN THIS INSTANCE UNLESS IT CAN BE SAID THAT SUCH OFFER WAS COMMUNICATED TO THE APPROPRIATE AGENT OF THE GOVERNMENT.

IN REGARD TO THE TYPE OF COMMUNICATION NECESSARY UNDER SUCH CIRCUMSTANCES, IT IS STATED IN 1 WILLISTON ON CONTRACTS ( REVISED EDITION) SECTION 89:

IF ACTUAL COMMUNICATION WERE NECESSARY FOR THE FORMATION OF A CONTRACT, OR ACTUAL COMMUNICATION OF THE REVOCATION OF AN OFFER NECESSARY FOR ITS WITHDRAWAL, IT WOULD NOT SUFFICE THAT A LETTER OF ACCEPTANCE OR REVOCATION COME INTO THE POSSESSION OF THE PERSON ADDRESSED; IT WOULD BE NECESSARY FOR THE LETTER TO BE READ. BUT THE LAW IN REGARD TO THIS MATTER, AS IN REGARD TO OTHER MATTERS IN THE FORMATION OF CONTRACTS, TAKES AS ITS REQUIREMENT AN OUTWARD SITUATION WHICH WOULD ORDINARILY CONNOTE THE EXISTENCE OF THE STATE OF MIND WHICH WOULD BE NECESSARY WERE MUTUAL ASSENT REQUIRED BY LAW, A MATTER OF ACTUAL AS DISTINGUISHED FROM APPARENT ASSENT. ACCORDINGLY, IF A LETTER COMES INTO THE POSSESSION OF THE PERSON ADDRESSED, OR OF ONE AUTHORIZED TO RECEIVE IT FOR HIM, OR IN A PLACE WHICH HE HAS DESIGNATED AS THE PLACE FOR THIS OR SIMILAR COMMUNICATIONS TO BE DEPOSITED FOR HIM, THE LETTER HAS REACHED ITS DESTINATION AND IS AS EFFECTUAL THOUGH UNREAD AS IF IT WERE READ. * * *

SEE ALSO LEVY V. MASSACHUSETTS ACCIDENT CO., 2 A.2D 341; HOLMES V. MYLES, 37 S. 588. THE RULE IS NOT LIMITED TO ACCEPTANCES SENT THROUGH THE MAILS. IN THE LATTER CASE CITED, AN ACCEPTANCE LEFT AT THE HOME OF THE OFFEROR WAS HELD EFFECTUAL EVEN THOUGH THE OFFEROR WAS NOT AT HOME AND RECEIVED NO ACTUAL NOTICE OF ACCEPTANCE IN THE TIME PRESCRIBED BY THE OFFER.

WHILE IN THE FOREGOING INSTANCES ACCEPTANCES AND REVOCATIONS OF OFFERS WERE UNDER CONSIDERATION, WE DEEM A COMMUNICATION SUFFICIENT FOR SUCH PURPOSE ALSO TO BE SUFFICIENT FOR THE MAKING OF AN OFFER. THUS, THE PLACING OF THE BID ON THE TABLE BEFORE THE BOARD MAY BE REGARDED AS AN ADEQUATE TENDER TO CONSTITUTE A VALID OFFER. ACCORDINGLY, AND SINCE THERE IS NOT APPARENT ANY POSSIBLE ADVANTAGE WHICH THE LOW BIDDER COULD HAVE OBTAINED BY THE SOMEWHAT UNUSUAL MANNER OF SUBMITTING HIS BID, WE CONCLUDE THAT THE LOW BID UNDER THE CIRCUMSTANCES MAY BE CONSIDERED FOR AWARD IF OTHERWISE PROPER.