B-149134, SEP. 20, 1962

B-149134: Sep 20, 1962

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YOU HAVE. WERE OPENED ON MAY 22. A CONTRACT WAS AWARDED TO THE LOW BIDDER. YOU HAVE PROTESTED THE AWARD ON THE BASIS THAT THE LOW BID DID NOT MEET THE REQUIREMENTS OF THE INVITATION. WERE CROSSED OUT AND NEW FIGURES INSERTED WITHOUT CONFORMING TO THE CITED INITIALING REQUIREMENT. THE LOW BID ITSELF WAS SIGNED BY THE BALDWIN- LIMA-HAMILTON GENERAL SALES MANAGER AND THE AMENDMENTS THERETO BY EITHER THE SAID INDIVIDUAL OR THE VICE PRESIDENT AND GENERAL MANAGER. THE BID WAS NOT ACCOMPANIED BY EVIDENCE OF THE AUTHORITY OF EITHER OF THE INDIVIDUALS TO SIGN A BID ON BEHALF OF THE CORPORATION. IT IS WELL ESTABLISHED THAT THE REQUIREMENTS OF A BID MAY BE WAIVED WHERE THEY DO NOT AFFECT THE PRICE.

B-149134, SEP. 20, 1962

TO DAVID FROMSON, ESQUIRE:

BY LETTER OF JUNE 8, 1962, AND SUBSEQUENT CORRESPONDENCE, YOU HAVE, ON BEHALF OF GILMORE INDUSTRIES, INC., PROTESTED THE AWARD OF A CONTRACT TO THE BALDWIN-LIMA-HAMILTON CORPORATION BY THE DEPARTMENT OF THE AIR FORCE PURSUANT TO INVITATION FOR BIDS NO. 33-604-61-338, ISSUED DECEMBER 18, 1961, FOR THE PROCUREMENT OF CERTAIN COMPUTERS WITH RELATED DATA AND EQUIPMENT.

BIDS SUBMITTED UNDER THE INVITATION, WHICH REPRESENTED THE SECOND STEP OF A 2-STEP PROCUREMENT, WERE OPENED ON MAY 22, 1962. AFTER EVALUATION OF BIDS BY THE CONTRACTING AGENCY, A CONTRACT WAS AWARDED TO THE LOW BIDDER, BALDWIN-LIMA-HAMILTON, ON MAY 28, 1962.

YOU HAVE PROTESTED THE AWARD ON THE BASIS THAT THE LOW BID DID NOT MEET THE REQUIREMENTS OF THE INVITATION. SPECIFICALLY, YOU POINT OUT THAT PARAGRAPH 1 OF THE TERMS AND CONDITIONS APPEARING ON THE REVERSE OF STANDARD FORM 30 REQUIRES THAT ERASURES OR OTHER CHANGES BE INITIALED BY THE PERSON SIGNING THE BID AND THAT BIDS SIGNED BY AN AGENT BE ACCOMPANIED BY EVIDENCE OF HIS AUTHORITY. YOU POINT OUT CORRECTLY THAT IN THE LOW BID CERTAIN FIGURES, INCLUDING PRICES, WERE CROSSED OUT AND NEW FIGURES INSERTED WITHOUT CONFORMING TO THE CITED INITIALING REQUIREMENT. SECONDLY, AS YOU POINT OUT, THE LOW BID ITSELF WAS SIGNED BY THE BALDWIN- LIMA-HAMILTON GENERAL SALES MANAGER AND THE AMENDMENTS THERETO BY EITHER THE SAID INDIVIDUAL OR THE VICE PRESIDENT AND GENERAL MANAGER, BUT THE BID WAS NOT ACCOMPANIED BY EVIDENCE OF THE AUTHORITY OF EITHER OF THE INDIVIDUALS TO SIGN A BID ON BEHALF OF THE CORPORATION.

NOTWITHSTANDING THE USE OF MANDATORY LANGUAGE IN THE PROVISION IN QUESTION, IT IS WELL ESTABLISHED THAT THE REQUIREMENTS OF A BID MAY BE WAIVED WHERE THEY DO NOT AFFECT THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLES OFFERED TO THE PREJUDICE OF OTHER BIDDERS. 37 COMP. GEN. 763, 765; 30 COMP. GEN. 179. WE HAVE CONSISTENTLY HELD THAT THE FAILURE TO INITIAL CHANGES MAY BE WAIVED WITHIN THE STATED RULE WHERE THERE IS NO QUESTION OF THE FIGURE INTENDED. SEE, FOR EXAMPLE, B-148560, APRIL 10, 1962; B-148081, MARCH 5, 1962; B-147106, SEPTEMBER 25, 1961. IN THIS CASE THE FIGURES REPLACED HAVE BEEN SO THOROUGHLY CROSSED OUT AS TO MAKE IT IMPOSSIBLE TO ATTEMPT TO READ THEM.

WITH RESPECT TO THE REQUIREMENT FOR EVIDENCE OF AN AGENT'S AUTHORITY TO SIGN A BID, THE PURPOSE IS, OF COURSE, TO INSURE THAT UPON ACCEPTANCE THE BID WILL BIND THE APPARENT BIDDER TO PERFORM IN ACCORDANCE WITH ITS TERMS. IN THIS INSTANCE WE HAVE BEEN ADVISED BY THE CONTRACTING AGENCY THAT BOTH OF THE REPRESENTATIVES OF THE LOW BIDDER WHO SIGNED EITHER THE BASIC BID OR THE AMENDMENTS THERETO WERE KNOWN BY THE CONTRACTING OFFICER TO BE AUTHORIZED TO BIND THE COMPANY BY THE SIGNATURE OF EITHER. FURTHER, WE HAVE A COPY OF A RESOLUTION OF THE BOARD OF DIRECTORS OF THE COMPANY DATED MAY 4, 1961, WELL IN ADVANCE OF THE SUBMISSION OF THE BID, SPECIFICALLY AUTHORIZING THE VICE PRESIDENT AND GENERAL SALES MANAGER TO ENTER INTO, EXECUTE AND DELIVER ON BEHALF OF THE COMPANY CONTRACTS WITH THE UNITED STATES RELATING TO THE SALE OF PRODUCTS OF THE KIND HERE INVOLVED.

UNDER SIMILAR CIRCUMSTANCES WE HAVE HELD THAT A BID SIGNED BY A SPECIAL AGENT MAY BE CONSIDERED FOR AWARD NOTWITHSTANDING THAT HIS AUTHORITY WAS NOT SUBMITTED WITH THE BID SO LONG AS THE AGENT DID IN FACT HAVE THE AUTHORITY TO BIND THE COMPANY. B-136047, SEPTEMBER 4, 1958. SEE ALSO 33 COMP. GEN. 508. A FORTIORI, SINCE IN THIS INSTANCE THE INDIVIDUALS HOLD POSITIONS IN THE CORPORATION WHICH BY THE NATURE OF THEIR TITLES WOULD LOGICALLY PLACE THEM IN THE POSITION OF CORPORATE REPRESENTATIVES ON WHOSE APPARENT AUTHORITY THE PUBLIC, INCLUDING THE GOVERNMENT, COULD RELY, THE STATED REQUIREMENT OF THE INVITATION SHOULD BE WAIVED IN THIS INSTANCE ALSO, EVEN IF WE WERE TO CONSTRUE THE WORD "AGENT" IN PARAGRAPH 1 (B) OF THE TERMS AND CONDITIONS OF THE IFB AS INCLUDING AN INDIVIDUAL SIGNING AS OFFICER OF A CORPORATION.

IN ACCORDANCE WITH THE FOREGOING, WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF THE AWARD MADE.