B-148235, MAR. 23, 1962

B-148235: Mar 23, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF FEBRUARY 20. THE BID WAS TIME STAMPED 2:55 P.M. DAVIS WAS UNKNOWN TO THE CONTRACT SPECIALIST AND THE BID OFFICER WHO WERE PRESIDING OVER THE BID OPENING. 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. A BID WHICH WAS ACCOMPANIED BY SAMPLES REQUIRED TO BE SUBMITTED WAS CONSIDERED SATISFACTORY TO ESTABLISH INTENT TO SUBMIT THE BID. ASPR IS IN GENERAL ACCORD WITH THE VIEW ADOPTED BY OUR OFFICE. 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.

B-148235, MAR. 23, 1962

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 20, 1962, FROM THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING A DECISION WHETHER THE MANUALLY UNSIGNED BID OF BUCK ENTERPRISES, INC., BEARING THE TYPEWRITTEN NAME OF THE BIDDER'S PRESIDENT, SHOULD BE ACCEPTED FOR AWARD UNDER INVITATION CML-30-07-0 62-79.

MR. THOMAS DAVIS, PRESIDENT OF BUCK ENTERPRISES, INC., PERSONALLY DELIVERED THE COMPANY'S BID TO THE OFFICES OF THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT THAT ISSUED THE INVITATION FOR BIDS. THE BID WAS TIME STAMPED 2:55 P.M. IN THE PRESENCE OF THE CONTRACT SPECIALIST. MR. DAVIS THEN ATTENDED THE BID OPENING AT 3 P.M. AT THE TIME OF THE BID OPENING, MR. DAVIS WAS UNKNOWN TO THE CONTRACT SPECIALIST AND THE BID OFFICER WHO WERE PRESIDING OVER THE BID OPENING. THE REGISTER OF PERSONS THAT ATTENDED THE OPENING INCLUDES, AMONG OTHERS, A SIGNED ENTRY "THOMAS DAVIS, BUCK ENTERPRISES, INC.'

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 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.

ASPR IS IN GENERAL ACCORD WITH THE VIEW ADOPTED BY OUR OFFICE. SECTION 2 -405 (III) PROVIDES THAT A BIDDER SHALL BE GIVEN AN OPPORTUNITY TO CORRECT THE FAILURE TO SIGN THE BID, BUT 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 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; "

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 THIS CASE, IT APPEARS THAT AT THE TIME THE BID WAS DELIVERED AND UNTIL AFTER THE BIDS WERE OPENED, IT WAS NOT KNOWN BY THE PROCUREMENT OFFICIALS THAT THE INDIVIDUAL WHO DELIVERED THE BID WAS THE PRESIDENT OF THE COMPANY. THEREFORE, IF HE CHOSE TO REMAIN SILENT AT THE BID OPENING ANY ATTEMPT TO MAKE AN AWARD TO THE COMPANY COULD HAVE BEEN SUCCESSFULLY DEFEATED BY DISAVOWING THE BID BECAUSE OF THE ABSENCE OF SIGNATURE. SINCE THE GOVERNMENT WOULD NOT HAVE KNOWN THAT THE PRESIDENT OF THE COMPANY SUBMITTED THE BID IN PERSON, IT COULD NOT HAVE RELIED UPON THAT FACT AS EVIDENCE OF INTENT. IT IS ONLY BECAUSE HE CHOSE TO POINT OUT TO THE PROCUREMENT PERSONNEL THAT HE DELIVERED THE BID THAT THE GOVERNMENT IS NOW AWARE OF THOSE CIRCUMSTANCES. HOWEVER, THE RELATIONSHIP OF THE DELIVERER OF THE BID TO THE COMPANY WAS NOT KNOWN PRIOR TO THE OPENING OF BIDS. FURTHER, THE FACT THAT THE PRESIDENT WAS IN ATTENDANCE AT THE BID OPENING WOULD NOT BE CONSIDERED SIGNIFICANT SINCE BID OPENINGS ARE PUBLIC FUNCTIONS WHICH MAY BE ATTENDED BY ANYONE REGARDLESS OF WHETHER THEY HAVE SUBMITTED BID, AND, IN ANY EVENT, HE IS REPORTED TO HAVE BEEN UNKNOWN TO THE OFFICERS PRESIDING OVER THE BID OPENING UNTIL HE REVEALED HIS RELATIONSHIP.

AT THE TIME THE BID OF BUCK ENTERPRISES, INC., WAS OPENED IT DID NOT CONTAIN A MANUAL SIGNATURE AND THE INTENTION TO SUBMIT A VALIDLY BINDING OFFER WAS NOT THEN OTHERWISE CLEAR, ALTHOUGH THE BIDDER ATTEMPTED TO CLARIFY THE SITUATION THEREAFTER. IT IS THEREFORE THE OPINION OF THIS OFFICE THAT THE BID OF BUCK ENTERPRISES, INC., SHOULD BE DISREGARDED IN THE CONSIDERATION OF BIDS FOR AWARD.