B-148491, APR. 16, 1962

B-148491: Apr 16, 1962

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INCLUDED IN THE ADMINISTRATIVE RECORD IS A COPY OF A COURTESY COPY OF A LETTER DATED FEBRUARY 14. THERE IS NO RECORD HERE THAT THE ORIGINAL LETTER WAS EVER RECEIVED. IT HAS BEEN CONSIDERED AND A DECISION REACHED AS FOLLOWS: AT THE TIME BIDS UNDER THE SUBJECT INVITATION WERE OPENED. A FEW DAYS THEREAFTER YOU RECEIVED AMENDMENT 2 THAT MERELY DEALT WITH A MINOR MATTER OF FORM IN THAT ALL IT DID WAS CHANGE THE INVITATION NUMBER FROM DA-30-079 -QM-62-1 TO DSA-36-62-1. AS THE CONTRACTING OFFICER DOUBTED THAT THE "WAREHOUSE CUSTODIAN" WAS AUTHORIZED TO SUBMIT THE BID. INQUIRY WAS DIRECTED TO YOU AS TO WHETHER THAT INDIVIDUAL HAD THE PURPORTED AUTHORITY. YOU CONCEDED THAT HE DID NOT HAVE AUTHORITY TO BIND THE CORPORATION.

B-148491, APR. 16, 1962

TO AMERICAN EXPRESS FIELD WAREHOUSING CORPORATION:

ON MARCH 26, 1962, THE DEFENSE SUPPLY AGENCY FURNISHED A REPORT AND RECORD OF THE CIRCUMSTANCES SURROUNDING THE REJECTION OF THE LOW BID SUBMITTED UNDER INVITATION DSA-36-62-1. INCLUDED IN THE ADMINISTRATIVE RECORD IS A COPY OF A COURTESY COPY OF A LETTER DATED FEBRUARY 14, 1962, ADDRESSED TO THIS OFFICE, PROTESTING THE ACTION TAKEN ON THE LOW BID. THE RECEIPT OF THE COURTESY COPY OF THE FEBRUARY 14 LETTER PROMPTED THE ADMINISTRATIVE AGENCY TO SUBMIT A REPORT TO THIS OFFICE. HOWEVER, THERE IS NO RECORD HERE THAT THE ORIGINAL LETTER WAS EVER RECEIVED, BUT AS YOU APPARENTLY INTENDED THAT THE MATTER BE REVIEWED HERE, IT HAS BEEN CONSIDERED AND A DECISION REACHED AS FOLLOWS:

AT THE TIME BIDS UNDER THE SUBJECT INVITATION WERE OPENED, THERE HAD BEEN RECEIVED FROM YOUR COMPANY A BID AND AMENDMENT 1 TO THE INVITATION FOR BIDS BOTH EXECUTED BY AN INDIVIDUAL AS ,WAREHOUSE CUSTODIAN.' A FEW DAYS THEREAFTER YOU RECEIVED AMENDMENT 2 THAT MERELY DEALT WITH A MINOR MATTER OF FORM IN THAT ALL IT DID WAS CHANGE THE INVITATION NUMBER FROM DA-30-079 -QM-62-1 TO DSA-36-62-1. YOU EXECUTED AMENDMENT 2 YOURSELF AND SUBSEQUENTLY DELIVERED IT IN PERSON TO THE CONTRACTING OFFICER.

AS THE CONTRACTING OFFICER DOUBTED THAT THE "WAREHOUSE CUSTODIAN" WAS AUTHORIZED TO SUBMIT THE BID, INQUIRY WAS DIRECTED TO YOU AS TO WHETHER THAT INDIVIDUAL HAD THE PURPORTED AUTHORITY. YOU CONCEDED THAT HE DID NOT HAVE AUTHORITY TO BIND THE CORPORATION, BUT YOU STATED THAT YOU WERE SURE THAT THE CORPORATION/S BOARD OF DIRECTORS WOULD RATIFY THE ACT.

THE CONTRACTING OFFICER SUBMITTED THE MATTER TO HIS LEGAL OFFICE FOR CONSIDERATION. SINCE OUR OFFICE HAD HELD IN A SIMILAR SITUATION IN DECISION B-143416, SEPTEMBER 7, 1960, THAT A BID SIGNED BY AN INDIVIDUAL LACKING AUTHORITY TO BIND A CORPORATE BIDDER AND RATIFIED BY THE CORPORATION'S BOARD OF DIRECTORS AFTER THE BID OPENING WOULD NOT BE CONSIDERED FOR AWARD, THE LEGAL OFFICE ADVISED THE CONTRACTING OFFICER TO DISREGARD THE BID IN CONSIDERING BIDS FOR AWARD. THE CONTRACTING OFFICER NOTIFIED YOU OF THAT DETERMINATION.

THEREAFTER, IN THE LETTER OF FEBRUARY 14, 1962, YOU STATED THAT THE BID SUBMITTED ON BEHALF OF YOUR CORPORATION WAS INCOMPLETE UNTIL AMENDMENT 2 WAS EXECUTED AND SUBMITTED TO THE GOVERNMENT, AND YOU CONTEND THEREFORE THAT THE BID COULD NOT BE CONSIDERED UNTIL THAT TIME AT WHICH THE ACTION OF THE "WAREHOUSE CUSTODIAN" MIGHT BE CONSIDERED TO HAVE BEEN RATIFIED BY YOU AS A PROPERLY AUTHORIZED OFFICER.

HOWEVER, IN CONTRACTS TO BE AWARDED BY THE GOVERNMENT FOLLOWING FORMAL ADVERTISEMENT FOR BIDS, THE RULE IS THAT THE BID MUST BE COMPLETE IN SUBSTANCE BEFORE THE OPENING OF BIDS, SINCE AN INCOMPLETE BID CAN BE MADE COMPLETE AFTER THE OPENING OF BIDS ONLY IF THE MATTER THAT WILL MAKE IT COMPLETE IS A MATTER OF FORM THAT IS OF SOME IMMATERIAL OR INCONSEQUENTIAL NATURE. THEREFORE, WHILE THE BID SUBMITTED ON BEHALF OF YOUR CORPORATION COULD HAVE BEEN COMPLETED WITH THE EXECUTION OF AMENDMENT 2 AFTER THE OPENING OF BIDS IF THE ORIGINAL BID AND AMENDMENT 1 HAD BEEN SIGNED BY AN AUTHORIZED PERSON, FAILURE OF THE DOCUMENTS SUBMITTED BEFORE THE OPENING OF BIDS TO CONTAIN THE SIGNATURE OF A PERSON AUTHORIZED TO SUBMIT A VALIDLY BINDING OFFER IS A MATTER OF SUBSTANCE THAT CANNOT BE CORRECTED AFTER THE OPENING OF BIDS.

ACCORDINGLY, THERE DOES NOT APPEAR ANY PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE CONTRACTING OFFICER IN THE REJECTION OF THE LOW BID.