B-148176, APR. 19, 1962

B-148176: Apr 19, 1962

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7. THE INVITATION ADVISED BIDDERS THAT THE WORK WAS TO BE PERFORMED WITHIN 90 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED. IT IS REPORTED THAT WHEN THE BIDS WERE OPENED ON JANUARY 2. IT WAS NOTED THAT ALTHOUGH MR. LUBE'S BID WAS UNSIGNED IT CLEARLY IDENTIFIED THE PROJECT FOR WHICH IT WAS INTENDED. SET FORTH THE AMOUNT PROPOSED FOR THE WORK TO BE PERFORMED AND WAS ACCOMPANIED BY A BID BOND FULLY EXECUTED BY THE BIDDER AND THE SURETY COMPANY. IT IS ALSO REPORTED THAT THE PROJECT WAS CLEARLY IDENTIFIED IN THE BID BOND AND THAT FOLLOWING THE BID OPENING THE CONTRACTING OFFICER PERMITTED MR. LUBE SHOULD HAVE BEEN CONSIDERED AS NONRESPONSIVE TO THE INVITATION AND.

B-148176, APR. 19, 1962

TO FRANCISCO LEVY HIJO, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1962, WITH ENCLOSURES, PROTESTING AGAINST AWARD OF A CONTRACT BY THE COMMUNITY FACILITIES ADMINISTRATION, REGION VII, HOUSING AND HOME FINANCE AGENCY, SANTURCE, PUERTO RICO, TO MR. JUAN C. LUBE UNDER AN INVITATION DATED DECEMBER 22, 1961.

THE INVITATION REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND FOR PERFORMING THE WORK NECESSARY FOR THE CONSTRUCTION OF TEMPORARY SCHOOL FACILITIES AT FORT BUCHANAN, PUERTO RICO, PROJECT NO. PR-63-C FED-2A13. THE INVITATION ADVISED BIDDERS THAT THE WORK WAS TO BE PERFORMED WITHIN 90 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED. THE RECORD SHOWS THAT JUAN G. LUBE SUBMITTED THE LOWEST BID IN THE AMOUNT OF $98,949 AND THAT YOUR FIRM SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $110,956.

IT IS REPORTED THAT WHEN THE BIDS WERE OPENED ON JANUARY 2, 1962, IT WAS NOTED THAT ALTHOUGH MR. LUBE'S BID WAS UNSIGNED IT CLEARLY IDENTIFIED THE PROJECT FOR WHICH IT WAS INTENDED, SET FORTH THE AMOUNT PROPOSED FOR THE WORK TO BE PERFORMED AND WAS ACCOMPANIED BY A BID BOND FULLY EXECUTED BY THE BIDDER AND THE SURETY COMPANY. IT IS ALSO REPORTED THAT THE PROJECT WAS CLEARLY IDENTIFIED IN THE BID BOND AND THAT FOLLOWING THE BID OPENING THE CONTRACTING OFFICER PERMITTED MR. LUBE TO SIGN HIS BID.

BY TELEGRAM DATED JANUARY 2, 1962, YOU PROTESTED THE CONTRACTING OFFICER'S ACTION IN PERMITTING MR. LUBE TO MANUALLY SIGN HIS BID AFTER THE BID OPENING. IN A CONFIRMING LETTER DATED JANUARY 3, 1962, YOU CONTENDED THAT THE BID OF MR. LUBE SHOULD HAVE BEEN CONSIDERED AS NONRESPONSIVE TO THE INVITATION AND, THEREFORE, REJECTED. YOU POINTED OUT TO THE CONTRACTING OFFICER THAT PARAGRAPH 5 (A) OF THE INSTRUCTIONS TO BIDDERS PROVIDES THAT "BIDS * * * MUST BE MANUALLY SIGNED.' YOU STATED THAT THE SIGNATURE IS NOT A MERE INFORMALITY OF THE BID BUT THAT IT IS A BASIC ITEM WHICH ESTABLISHES THE VALIDITY OF THE BID.

IN YOUR LETTER DATED JANUARY 5, 1962, YOU ADVISED THE CONTRACTING OFFICER THAT IN ADDITION TO THE LACK OF A SIGNATURE, THE BID OF MR. LUBE WAS ALSO DEFICIENT IN THE FOLLOWING RESPECTS:

"1- IN THE BID BOND (STANDARD FORM 24) THE ATTEST OF THE CORPORATE SURETY WAS NOT FILLED OUT IN ACCORDANCE WITH PARAGRAPH 5 OF THE INSTRUCTIONS PRINTED IN THE REVERSE SIDE OF THE FORM.

"2- IN THE BID FORM (STANDARD FORM 21) THE NAME OF THE BIDDER AND THE DATE WERE NOT TYPED NOR PRINTED IN THE FRONT FACE OF THE FORM.

"3- ON THE REVERSE SIDE OF THE BID FORM NONE OF THE BOXES WHICH INDICATE THE BIDDER'S REPRESENTATIONS WERE CHECKED AS REQUIRED. (THIS COMPRISES 3 DIFFERENT PARAGRAPHS OF REQUESTED DATA).

"4- THE BLANK SPACE FOR DESCRIBING THE BID GUARANTEE WAS NOT FILLED OUT AT ALL.

"5- THE BLANK SPACE FOR INDICATING THE AMOUNT OF THE BID GUARANTEE WAS NOT FILLED OUT EITHER.

"6- THE ENVELOPE IN WHICH THE IMPROPER BID AND BID BOND WERE DELIVERED WAS NOT PROPERLY MARKED IN ACCORDANCE WITH THE DIRECTIONS FOR SUBMITTING BIDS PRINTED IN THE REVERSE SIDE OF THE FORM.'

IN A LETTER DATED JANUARY 15, 1962, THE CONTRACTING OFFICER ADVISED YOU THAT THE BID AND BOND OF MR. LUBE WERE SUBMITTED TOGETHER AND FORMED THE BASIS FOR THE CLEAR IDENTIFICATION OF THE BID; THAT THE GOVERNMENT'S RIGHT TO WAIVE THE INFORMALITY CONSISTING OF THE BIDDER'S FAILURE TO SIGN THE BID EXISTED UNDER PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS; AND THAT THE SUBMISSION OF THE BID AND THE BOND TOGETHER FORMED THE BASIS FOR A RESPONSIVE BID. IN SUPPORT OF HIS ACTION, THE CONTRACTING OFFICER CITED OUR DECISION OF DECEMBER 14, 1937, A-90314, A-90834, REPORTED IN 17 COMP. GEN. 497. BY LETTER DATED JANUARY 31, 1962, THE CONTRACTING OFFICER ADVISED YOU THAT HE HAD CONSIDERED THE OTHER DEFICIENCIES IN THE BID OF MR. LUBE AT THE TIME HE HAD RENDERED HIS DECISION OF JANUARY 15, 1962.

IN A LETTER DATED FEBRUARY 7, 1962, ADDRESSED TO OUR OFFICE, IN WHICH YOU REQUESTED THAT THE AWARD MADE TO MR. LUBE BE CANCELED, YOU REITERATED THE DEFICIENCIES IN MR. LUBE'S BID, WHICH YOU HAD LISTED IN YOUR LETTER OF JANUARY 5, 1962, TO THE CONTRACTING OFFICER. YOU ALSO STATED THAT THE AWARD SHOULD BE INVALIDATED FOR THE FOLLOWING REASONS:

"1- THE DECISION OF THE ACTING COMPTROLLER GENERAL A-90314, A 90834, IS APPLICABLE ONLY IN THE CASE OF AN OTHERWISE RESPONSIVE BID. IN THAT CASE, AS THE FACTS SHOWED, L. J. DOWELL, INC., THE FIRM SUBMITTING THE LOW BID, COMPLETED THE BID SCHEDULE, AND THE BID PROPERLY IDENTIFIED THE ACCOMPANYING BID BOND GIVING A DESCRIPTION OF THE GUARANTEE TOGETHER WITH THE AMOUNT THEREOF AS REQUIRED BY THE BID. AND VICE-VERSA, THE BID BOND EXECUTED BY THE BIDDER REFERRED TO AND FULLY IDENTIFIED "THE ACCOMPANYING BID.' UNDER THOSE CONDITIONS, AN UNSIGNED BID COULD BE ACCEPTED AND THE INFORMALITY IN THE BID COULD PROPERLY BE WAIVED BY THE CONTRACTING OFFICER, AS POINTED OUT IN THE GOVERNMENT INSTRUCTION TO BIDDERS SF 22, WHENEVER SUCH WAIVER SHOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT. HOWEVER, THE INSTANT CASE DIFFERS FROM A-90314, IN THAT THE BID ITSELF MADE NO MENTION OR REFERENCE TO ANY GUARANTEE WHETHER A BID BOND, CHECK OR A MONEY ORDER, ETC. HERE, THERE WAS NO TYING IN OF THE BID WITH THE ACCOMPANYING BOND. AND TO SAY THAT THE SIGNATURE OF THE BIDDER ON THE BOND IS CLEAR EVIDENCE OF AND INDICATES THAT BIDDER'S INTENTION TO SUBMIT A BID FOR A GOVERNMENT CONTRACT ON A FORM OR DOCUMENT WHICH ON ITS FACE IS NOT OTHERWISE IDENTIFIABLE IS CLEARLY ERRONEOUS.

"2- IN MY OPINION, THE FAILURE OF THE BIDDER IN THE INSTANT CASE TO COMPLETE THE BIDDER'S REPRESENTATIONS REQUIRED ON THE BID FORM CANNOT BE CONSIDERED A MERE INFORMALITY WHICH MAY BE WAIVED WHEN IN THE INTERESTS OF THE GOVERNMENT SINCE IT IS A MATERIAL PART OF THE INVITATION FOR BIDS, TAKE THE FIRST REPRESENTATION, THAT HE IS OR IS NOT A SMALL BUSINESS CONCERN--- THIS IS A MATERIAL PART OF THE INVITATION SINCE THE INVITATION FOR BIDS SPECIFICALLY STATES AS FOLLOWS: ,BIDS OR PROPOSALS RECEIVED FROM FIRMS WHICH ARE NOT SMALL BUSINESS CONCERNS SHALL BE CONSIDERED NONRESPONSIVE.' AS TO THE SECOND, IF A BIDDER FAILS TO INDICATE THAT HE HAS EMPLOYED OR RETAINED A COMPANY OR PERSON (OTHER THAN A FULL-TIME BONA- FIDE EMPLOYEE) TO SOLICIT OR SECURE THE CONTRACT HE COULD EVADE THE NECESSITY TO FURNISH A COMPLETED STANDARD FORM 119, THEREBY POSSIBLY VIOLATING THE FEDERAL PUBLIC POLICY AGAINST CONTINGENT FEES FOR OBTAINING GOVERNMENT CONTRACTS. AS TO THE THIRD REPRESENTATION, PARTIES TO CONTRACTS MUST KNOW WITH WHOM THEY ARE DEALING.

"3- FURTHER, TO WAIVE THE DEFECT HERE WOULD PERMIT THE BIDDER TO ELECT, AFTER THE OTHER BIDS HAVE BEEN OPENED, TO ABIDE BY HIS BID OR TO CLAIM EITHER ERROR IN HIS BID OR THAT THE BID WAS UNAUTHORIZED BY HIM. IN THIS CONNECTION, IT HAS BEEN STATED IN 34 COMPTROLLER GENERAL 82, THAT ,CONDITIONS OR RESERVATIONS WHICH GIVE A BIDDER A CHANCE TO SECOND-GUESS HIS COMPETITORS AFTER BID OPENING MUST BE REGARDED AS FATAL TO THE BID.' AND, AGAIN, AS TO CONSIDERING THE FAILURE TO SIGN A BID AS AN INFORMALITY WHICH MAY BE WAIVED, THE RULE IS THAT ONLY THOSE INFORMALITIES "WHICH DO NOT GO TO THE SUBSTANCE OF THE BID AND NOT WORK AN INJUSTICE TO THE OTHER BIDDERS" MAY BE WAIVED. (30 COMPTROLLER GENERAL 179)"

IN REGARD TO THE DEFICIENCIES, OTHER THAN THE LACK OF SIGNATURE, IN THE BID OF MR. LUBE, WE ARE OF THE OPINION THAT IT WAS PROPER FOR THE CONTRACTING OFFICER TO CONSIDER THEM AS INFORMALITIES IN THE BID WHICH UNDER PARAGRAPH 10 (B) OF THE INSTRUCTIONS TO BIDDERS MAY BE WAIVED BY THAT OFFICER. IN REGARD TO THE ATTESTATION OF THE CORPORATE SURETY ON MR. LUBE'S BID BOND, WE HAVE HELD THAT A BIDDER MAY BE GIVEN AN OPPORTUNITY AFTER THE BID OPENING TO CORRECT SUCH MINOR DEFICIENCIES IN HIS BID BOND. SEE 38 ID. 532, 537, AND B-145301 DATED APRIL 21, 1961. AS TO THE FAILURE OF MR. LUBE TO TYPE HIS NAME AND THE DATE OF HIS BID ON THE FRONT FACE OF THE BID FORM, SUCH INFORMATION WAS ASCERTAINABLE FROM HIS BID BOND. REGARDING MR. LUBE'S FAILURE TO COMPLETE THE REPRESENTATIONS ON THE REVERSE SIDE OF THE BID FORM AS TO SMALL-BUSINESS STATUS AND PAYMENT OF CONTINGENT FEES, IT IS TO BE NOTED THAT THIS PROCUREMENT WAS NOT SET ASIDE SOLELY FOR SMALL BUSINESS CONCERNS AND THAT MR. LUBE HAS NOT REFUSED TO FURNISH A REPRESENTATION AND AGREEMENT WITH RESPECT TO CONTINGENT FEES. SEE FPR 1-1.508-1 (C) WHICH SPECIFICALLY PROVIDES THAT FAILURE TO FURNISH THE REPRESENTATION AND AGREEMENT REGARDING CONTINGENT FEES SHALL BE CONSIDERED A MINOR INFORMALITY AND SUCH INFORMATION MAY BE OBTAINED AFTER BID OPENING.

AS TO THE FAILURE OF MR. LUBE TO SIGN HIS BID, THE DECISIONS OF OUR OFFICE GENERALLY HAVE FOLLOWED THE RULE THAT THE ONLY MANUALLY UNSIGNED BIDS BEARING A TYPEWRITTEN NAME THAT MAY BE CONSIDERED FOR AWARD ARE THOSE ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. 36 COMP. GEN. 523; 34 ID. 439; 17 ID. 497. HOWEVER, IN ONE CASE, B-124029, JUNE 1, 1955, A BID WHICH WAS ACCOMPANIED BY SAMPLES REQUIRED TO BE SUBMITTED WAS CONSIDERED SATISFACTORY TO ESTABLISH INTENT TO SUBMIT THE BID. IN ANOTHER CASE, B-144470, MARCH 14, 1961, WHERE THE BID HAD THE TYPEWRITTEN NAME AND TITLE OF THE VICE PRESIDENT OF THE CORPORATION, BUT WAS OTHERWISE UNSIGNED, OUR OFFICE CONCURRED IN THE ADMINISTRATIVE REJECTION OF THE BID, BUT IMPLIED THAT THERE MAY BE CIRCUMSTANCES WHERE THE ACT OF THE INDIVIDUAL SUBMITTING THE BID UNACCOMPANIED BY DOCUMENTARY EVIDENCE OF INTENT TO BID MAY BE CONSTRUED AS AN INTENT TO SUBMIT A BID. THE FEDERAL PROCUREMENT REGULATIONS ARE IN GENERAL ACCORD WITH THE VIEW ADOPTED BY OUR OFFICE. SEE SECTION 1-2.405.

THE ACTUAL TEST IN CASES LIKE THIS IS WHETHER THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON THE ACCEPTANCE OF THE BID BY THE GOVERNMENT WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. B-144185, JANUARY 25, 1961; B-131767, JUNE 20, 1957; B 124029, JUNE 1, 1955. OTHER WORDS, THE QUESTION IS WHETHER THE DOCUMENTS OR CIRCUMSTANCES ACCOMPANYING THE SUBMISSION OF THE UNSIGNED BID WOULD CLEARLY AND CONVINCINGLY OVERCOME ANY ATTEMPT BY THE BIDDER TO DISAVOW THE BID AND TO UPSET THE AWARD MADE TO IT ON THE GROUND THAT AN AUTHORIZED SIGNATURE IS ABSENT.

IN THE CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT THE ACTUAL VOLUNTARY SUBMISSION OF LUBE'S BID, ACCOMPANIED AS IT WAS BY A BID BOND IDENTIFYING THE PROJECT FOR WHICH IT WAS INTENDED, IS TOO CLEARLY ESTABLISHED TO PERMIT ITS DISAVOWAL OR WITHDRAWAL, AND THAT WITHOUT REGARD TO THE SIGNATURE ADDED AFTER OPENING ITS ACCEPTANCE WOULD HAVE CREATED AN ENFORCEABLE CONTRACT. NO QUESTION OF ELECTION BY THE BIDDER SUCH AS AROSE IN A CASE CONSIDERED IN THE DECISION REPORTED IN 34 COMP. GEN. 82 IS PRESENT IN THE INSTANT CASE.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.