B-144185, JAN. 25, 1961

B-144185, JAN. 25, 1961

TO THE SECRETARY OF THE ARMY:

WE REFER TO THE PROTEST OF GLOBE INDUSTRIES, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. CML-30- 070-61-21, WHICH MATTER IS THE SUBJECT OF A REPORT DATED NOVEMBER 21, 1960, FORWARDED TO THIS OFFICE IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS).

THE RECORD SHOWS THAT THE INVITATION WAS ISSUED ON AUGUST 24, 1960, BY THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK, NEW YORK, CALLING FOR 3,625 MOTOR BLOWER ASSEMBLIES FOR DELIVERY IN ACCORDANCE WITH A SCHEDULE OF DELIVERIES SET FORTH IN THE INVITATION. IT WAS STATED THAT BIDS OFFERING DELIVERY LATER THAN THE PRESCRIBED TIME WOULD BE CONSIDERED NON-RESPONSIVE, WHILE BIDS OFFERING EARLIER DELIVERY WOULD BE CONSIDERED RESPONSIVE. AMENDMENT NO. 1 TO THE INVITATION, ISSUED ON SEPTEMBER 6, 1960, EXTENDED THE REQUIRED TIME OF DELIVERY AND INCORPORATED A NEW GENERAL PROVISION NO. 34 ENTITLED "STATUS OF PERFORMANCE.' THE PROVISION REQUIRED THAT THE SUCCESSFUL CONTRACTOR, COMMENCING 30 DAYS AFTER AWARD, ADVISE THE GOVERNMENT AS TO THE STATUS OF PRODUCTION.

BIDS WERE OPENED AT 3:00 P.M., ON FRIDAY, SEPTEMBER 23, 1960, AND AT THAT TIME A TOTAL OF 16 BIDS WAS RECEIVED. THE LOW BID AT THE OPENING WAS SUBMITTED BY THE GENERAL TURBINE CORPORATION, AT A UNIT PRICE OF $28.85, LESS A DISCOUNT OF 1/2 PERCENT FOR PAYMENT WITHIN 10 CALENDAR DAYS. GLOBE INDUSTRIES, INCORPORATED, SUBMITTED THE SECOND LOW BID ($30.48, LESS DISCOUNT OF 1/2 PERCENT, 10 CALENDAR DAYS), AND REMSEL INDUSTRIES, INCORPORATED, SUBMITTED THE THIRD LOW BID ($30.50, LESS DISCOUNT OF 1/4 PERCENT, 10 CALENDAR DAYS). IT IS REPORTED THAT THE LOW BID OF GENERAL TURBINE CORPORATION WAS SUBMITTED IN TRIPLICATE, AS REQUIRED, AND EACH COPY OF THE BID FORM, AND AMENDMENT NO. 1 THERETO, BORE THE TYPEWRITTEN NAME AND ADDRESS OF THE BIDDER IN THE PROPER PLACE AND ALSO THE TYPEWRITTEN NAME AND TITLE OF "JAMES G. SAWYER," THE FIRM'S PRESIDENT, IN THE PROPER BLOCK. HOWEVER, NO SIGNATURE APPEARED ON ANY OF THE COPIES IN THE BLOCK ENTITLED ,SIGNATURE OF PERSON AUTHORIZED TO SIGN BID," NOR WAS THERE ANY ACCOMPANYING LETTER, NOR ANY OTHER PLACE ON THE BID OR AMENDMENT WHICH BORE ANY SIGNATURE.

THE BID OFFICER, MR. MARCUS S. COLER, REPORTS THAT AT 11:00 A.M., ON MONDAY, SEPTEMBER 26, 1960, AN ENVELOPE WAS RECEIVED IN RESPONSE TO THE SUBJECT INVITATION, CONTAINING A BID FROM INDUSTRIAL DESIGN LABORATORIES, CULVER CITY, CALIFORNIA. ACCORDING TO THE MARKINGS AND CANCELLATION STAMPS ON THE ENVELOPE, IT WAS SENT AIRMAIL, SPECIAL DELIVERY, REGISTERED, RETURN RECEIPT REQUESTED, FROM CULVER CITY, CALIFORNIA, ON SEPTEMBER 22, 1960, AND RECEIVED IN CHURCH STREET POST OFFICE STATION, NEW YORK, NEW YORK, ON SEPTEMBER 23, 1960, BUT NO HOUR OF MAILING OR RECEIPT WAS INDICATED ON THE ENVELOPE. THE ENVELOPE WAS HELD UNOPENED UNTIL SEPTEMBER 30, 1960, AT WHICH TIME THE BID OFFICER ADVISED THE CONTRACTING OFFICER THAT HE HAD RECEIVED ORAL NOTIFICATION FROM THE POST OFFICE DEPARTMENT TO THE EFFECT THAT THE LATE BID SHOULD HAVE BEEN DELIVERED PRIOR TO BID OPENING. THEREUPON, THE LATE BID WAS OPENED. THE BID OFFERED A UNIT PRICE OF $29.97, WITH A DISCOUNT OF 1/2 PERCENT, 10 CALENDAR DAYS, AND THUS BECAME THE SECOND LOW BID RECEIVED. HOWEVER, IT WAS NOTED THAT NO COPIES OF AMENDMENT NO. 1 WERE RETURNED TO THE GOVERNMENT EITHER WITH THE BID OR SEPARATELY. BY LETTER OF OCTOBER 6, 1960, THE NEW YORK POST OFFICE DEPARTMENT CONFIRMED THAT THE REGISTERED LETTER CONTAINING THE LATE BID SHOULD HAVE BEEN DELIVERED BY THE POST OFFICE PRIOR TO BID OPENING, UPON THE BASIS OF AN ENCLOSED MEMORANDUM DATED SEPTEMBER 28, 1960, FROM THE ACTING POSTMASTER, CULVER CITY, CALIFORNIA, WHICH STATED THAT THE ENVELOPE IN QUESTION WAS POSTED AT APPROXIMATELY 4:00 P.M., ON SEPTEMBER 22, 1960, IN CULVER CITY, CALIFORNIA.

PROTESTS WERE RECEIVED BY THE DEPARTMENT OF THE ARMY RELATIVE TO THE PENDING AWARD FROM GENERAL TURBINE CORPORATION, GLOBE INDUSTRIES, INCORPORATED, AND REMSEL INDUSTRIES, INCORPORATED, EACH PROTESTING AN AWARD TO ANY OTHER BIDDER. IN ADDITION, THIS OFFICE RECEIVED A PROTEST ON OCTOBER 7, 1960, FROM GLOBE INDUSTRIES, INCORPORATED, AGAINST THE CONSIDERATION OF THE LATE BID SUBMITTED BY INDUSTRIAL DESIGN LABORATORIES. ON NOVEMBER 9, 1960, PURSUANT TO A DETERMINATION BY THE CONTRACTING OFFICER THAT IT WAS IMPERATIVE TO PROCEED PROMPTLY WITH THE AWARD IN THIS PROCUREMENT, CONTRACT NO. DA30-070-405-CMC-73, IN THE AMOUNT OF $108,641.25, WAS AWARDED TO INDUSTRIAL DESIGN LABORATORIES AS THE LOWEST RESPONSIBLE RESPONSIVE BIDDER. THE CONTRACTING OFFICER DETERMINED THAT THE LOW BID SUBMITTED BY THE GENERAL TURBINE CORPORATION MUST BE REJECTED BECAUSE OF THE LACK OF A SIGNATURE. WITH REGARD TO THE BID OF INDUSTRIAL DESIGN LABORATORIES, HE DETERMINED THAT THE FAILURE TO SUBMIT THE AMENDMENT SHOULD BE CONSIDERED AS A MINOR INFORMALITY AND THAT THE LATE BID SHOULD BE CONSIDERED FOR AWARD.

INASMUCH AS YOUR DEPARTMENT HAS FORWARDED TO THIS OFFICE THE FILES PERTAINING TO THE PROTESTS OF THE GENERAL TURBINE CORPORATION AND REMSEL INDUSTRIES, INCORPORATED, AS WELL AS TO THAT OF GLOBE INDUSTRIES, INCORPORATED, WE WILL CONSIDER THE PROPRIETY OF THE AWARD TO INDUSTRIAL DESIGN INDUSTRIES ON THE BASIS OF ALL THE RELEVANT PROTESTS.

THE LOW BID SUBMITTED BY THE GENERAL TURBINE CORPORATION WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE THE BIDDER FAILED TO SIGN THE BID FORMS. THE ATTORNEYS IN BEHALF OF THAT BIDDER SUBMITTED A LETTER DATED SEPTEMBER 28, 1960, WHICH STATES THAT MR. SAWYER, THE RESPONSIBLE OFFICER OF THE FIRM, PERSONALLY PREPARED THE BID, PERSONALLY TYPED IN THE INFORMATION REQUIRED TO BE INSERTED ON THE BID FORMS, AND MAILED THE BID HIMSELF WITH THE CLEAR INTENT TO BIND THE BIDDER. WE HELD IN OUR DECISION OF MARCH 11, 1955, B-123061 (34 COMP. GEN. 439), THAT THE FAILURE OF A BIDDER TO SIGN A BID WHICH BORE HIS TYPEWRITTEN SIGNATURE, AND WHICH WAS NOT ACCOMPANIED BY ANY OTHER DOCUMENTS EVIDENCING HIS INTENT TO SUBMIT THE BID, PREVENTED THAT BID FROM BEING CONSIDERED IN MAKING THE AWARD. THE DECISIVE QUESTION IN SUCH CASES IS WHETHER ACCEPTANCE OF THE BID AS SUBMITTED WILL EFFECT A CONTRACT BINDING ON THE BIDDER. B-131767, JUNE 20, 1957. THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), PARAGRAPH 2-405, PROVIDES THAT A BIDDER SHALL BE GIVEN THE OPPORTUNITY TO CORRECT A MINOR INFORMALITY OR IRREGULARITY IN A BID, SUCH AS THE FAILURE OF THE BIDDER TO SIGN THE BID, BUT, IN THAT CASE, ONLY IF---

"/A) THE FIRM SUBMITTING THE BID HAS FORMALLY ADOPTED OR AUTHORIZED THE EXECUTION OF DOCUMENTS BY TYPEWRITTEN, PRINTED OR RUBBER STAMPED SIGNATURE AND SUBMITS EVIDENCE OF SUCH AUTHORIZATION AND THE BID CARRIES SUCH A SIGNATURE, OR

(B) THE UNSIGNED BID IS ACCOMPANIED BY OTHER MATERIAL INDICATING THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT SUCH AS THE SUBMISSION OF A BID GUARANTEE WITH BID, OR A LETTER SIGNED BY THE BIDDER WITH THE BID REFERRING TO AND CLEARLY IDENTIFYING THE BID ITSELF; * * *"

WE DO NOT QUESTION THE LOW BIDDER'S CONTENTION THAT IT INADVERTENTLY NEGLECTED TO SIGN THE BID FORMS. HOWEVER, THE BID WAS NOT ACCOMPANIED BY ANYTHING BEARING A SIGNATURE, AND THE ADMINISTRATIVE OFFICE REPORTS HAVING NO INFORMATION WHATEVER THAT THE GENERAL TURBINE CORPORATION HAS EVER ADOPTED OR AUTHORIZED THE EXECUTION OF DOCUMENTS BY A TYPEWRITTEN NAME. WE THEREFORE FIND NO BASIS IN THE RECORD FOR HOLDING THAT THE GENERAL TURBINE CORPORATION WOULD HAVE BEEN BOUND TO A CONTRACT BY THE ACCEPTANCE OF ITS BID. RATHER, IT APPEARS THAT THE BIDDER COULD HAVE EITHER ACCEPTED OR REJECTED A TENDERED AWARD. IN VIEW OF THE RULE SET FORTH IN 34 COMP. GEN. 439, WE MUST CONCLUDE THAT THE UNSIGNED BID OFFERED BY THE LOW BIDDER WAS PROPERLY REJECTED BY THE CONTRACTING OFFICER.

THE SECOND LOW BID WAS SUBMITTED BY INDUSTRIAL DESIGN LABORATORIES. THE BIDDER FAILED TO SUBMIT THE INVITATION AMENDMENT WITH ITS BID. IN THIS RESPECT, THE ARMED SERVICES PROCUREMENT REGULATION, PARAGRAPH 2 405, PROVIDES THAT THE FAILURE OF A BIDDER TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO AN INVITATION FOR BIDS MAY BE WAIVED FOR PURPOSES OF AWARD IF THE AMENDMENT WOULD HAVE NO EFFECT ON PRICE, QUALITY, QUANTITY, OR DELIVERY. THIS OFFICE HAS HELD THAT WHERE AN AMENDMENT DOES NOT AS A PRACTICAL MATTER AFFECT THE COST OF THE WORK OR ANY OTHER MATERIAL TERM OF THE CONTRACT, FAILURE TO ACKNOWLEDGE RECEIPT OF THAT AMENDMENT MAY BE TREATED AS AN INFORMALITY AND MAY BE WAIVED FOR PURPOSES OF AWARD. 138392, FEBRUARY 25, 1959. SEE 34 COMP. GEN. 581.

AMENDMENT NO. 1 TO THE SUBJECT INVITATION EFFECTED TWO CHANGES. PROLONGED THE SCHEDULE OF DELIVERY AND IT INCORPORATED A NEW GENERAL PROVISION NO. 34, ENTITLED "STATUS OF PERFORMANCE.' PRESUMABLY, ACCEPTANCE OF A BID NOT INCLUDING AMENDMENT NO. 1 WOULD OBLIGATE THE BIDDER TO MEET THE ORIGINAL DELIVERY SCHEDULE. ALTHOUGH SUCH BIDDER WOULD NOT BE SUBJECT TO THE "STATUS OF PERFORMANCE" REPORT REQUIREMENT IMPOSED BY THE AMENDMENT, THE DEPARTMENT OF THE ARMY ADVISES THAT THE COST OF PREPARING SUCH A REPORT IS NEGLIGIBLE, INASMUCH AS ANY CONTRACTOR PERFORMING UNDER ANY CONTRACT MUST HAVE SUCH INFORMATION AVAILABLE AT ALL TIMES IN ORDER TO MEET ITS CONTRACTUAL OBLIGATIONS. ON THIS BASIS, WE DO NOT SEE THAT OTHER BIDDERS WERE PREJUDICED BY THE FAILURE OF THIS BIDDER TO SUBMIT AMENDMENT NO. 1 TO THE INVITATION. THE DEFICIENCY, THEREFORE, WAS PROPERLY WAIVED FOR PURPOSES OF AWARD.

UNDER THE TERMS OF THE INVITATION LATE BIDS WERE FOR CONSIDERATION IF RECEIVED PRIOR TO AWARD AND IT WAS DETERMINED BY THE GOVERNMENT THAT LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. UPON THE BASIS OF ADVICE RECEIVED FROM THE POST OFFICE DEPARTMENT, THE CONTRACTING OFFICER DETERMINED THAT THE LATE BID, MAILED AIRMAIL IN CALIFORNIA AT APPROXIMATELY 4:00 P.M., ON SEPTEMBER 22, 1960, SHOULD HAVE ARRIVED IN THE NORMAL COURSE OF THE MAILS IN TIME FOR BID OPENING IN NEW YORK, NEW YORK, AT 3:00 P.M., ON SEPTEMBER 23, 1960. THIS CASE, THE HOUR OF MAILING DOES NOT APPEAR ON THE FACE OF THE BID ENVELOPE, BUT SUCH INFORMATION WAS OBTAINED FROM THE POSTAL AUTHORITIES (SEE ASPR, PARAGRAPH 2-303.3 (A) (V) AND (B) (. FROM THE EVIDENCE PRESENTED, WE ARE OF THE OPINION THAT THE LATE BID RECEIVED PRIOR TO AWARD WAS FOR CONSIDERATION ON THE BASIS THAT THE LATE RECEIPT WAS DUE SOLELY TO DELAY IN THE MAILS. SEE 36 COMP. GEN. 370.

WE FIND NO LEGAL OBJECTION TO THE ACTION TAKEN BY YOUR DEPARTMENT IN MAKING AN AWARD UNDER THE SUBJECT INVITATION TO INDUSTRIAL DESIGN LABORATORIES. ACCORDINGLY, THE PROTEST RECEIVED HERE IS DENIED.