B-154351, JUN. 16, 1964

B-154351: Jun 16, 1964

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BIDS WERE OPENED ON APRIL 9. MASASCHI WAS NOTIFIED THAT HIS BID WAS ACCEPTED SUBJECT TO APPROVAL BY THE DIRECTOR OF THE NATIONAL PARK SERVICE. THE BIDDER WAS ALSO ADVISED TO EXECUTE THE REQUIRED PERFORMANCE AND PAYMENT BONDS. NEITHER BOND FORM WAS RETURNED BY THE BIDDER. THE BOND FORMS HAVE BEEN COMPLETED AND RETURNED BY THE CORPORATION. THE CONTRACTING OFFICER REPORTS THAT THE NATIONAL PARK SERVICE IS NOW WILLING TO MAKE AWARD TO THE CORPORATION. THE BID (OFFER) IN QUESTION WAS SUBMITTED IN THE NAME OF THE DECEASED. IT IS CLEAR THAT THE LETTER OF APRIL 20 TO THE BIDDER DID NOT GIVE RISE TO A CONTRACT. THE LETTER MERELY INFORMED THE DECEASED THAT ITS LOW BID WAS TENTATIVELY ACCEPTED SUBJECT TO COMPLETION OF BID FORMS AND APPROVAL BY THE DIRECTOR.

B-154351, JUN. 16, 1964

TO THE SECRETARY OF THE INTERIOR:

WE REFER TO A LETTER DATED JUNE 2, 1964, FROM YOUR DEPUTY ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING OUR DECISION RELATIVE TO THE ACCEPTABILITY OF THE LOW BID UNDER INVITATION FOR BIDS NO. 64 CACO-4, ISSUED ON MARCH 10, 1964, BY THE NATIONAL PARK SERVICE.

THE INVITATION COVERS THE CONSTRUCTION OF CERTAIN MAINTENANCE BUILDINGS AT CAPE COD NATIONAL SEASHORE, MASSACHUSETTS. BIDS WERE OPENED ON APRIL 9, 1964, AND LOUIS A. MASASCHI, AN INDIVIDUAL,SUBMITTED THE LOW BID AT A TOTAL OF $209,680; THE ACCOMPANYING BID BOND ALSO DESCRIBED THE BIDDER AS AN INDIVIDUAL. BY LETTER OF APRIL 20, 1964, MR. MASASCHI WAS NOTIFIED THAT HIS BID WAS ACCEPTED SUBJECT TO APPROVAL BY THE DIRECTOR OF THE NATIONAL PARK SERVICE. THE BIDDER WAS ALSO ADVISED TO EXECUTE THE REQUIRED PERFORMANCE AND PAYMENT BONDS. HOWEVER, ON APRIL 24, 1964, MR. MASASCHI SUFFERED A STROKE AND REMAINED UNCONSCIOUS UNTIL HIS DEATH ON APRIL 29. NEITHER BOND FORM WAS RETURNED BY THE BIDDER.

MR. PAUL MASASCHI, THE SON OF THE DECEASED BIDDER, ADVISES THAT IN JANUARY 1964, HIS DECEASED FATHER, WHO HAD BEEN IN THE CONSTRUCTION BUSINESS FOR MANY YEARS, FORMED A CORPORATION UNDER THE NAME OF MASSASCHI AND SON BUILDING CORPORATION; AND THAT HIS FATHER HAD INTENDED TO BID IN BEHALF OF THE CORPORATION BUT, BY FORCE OF HABIT, HAD SIGNED HIS OWN NAME ONLY.

THE BOND FORMS HAVE BEEN COMPLETED AND RETURNED BY THE CORPORATION, AND THE CONTRACTING OFFICER REPORTS THAT THE NATIONAL PARK SERVICE IS NOW WILLING TO MAKE AWARD TO THE CORPORATION. YOU REQUEST OUR DECISION ON THE MATTER.

THE BID (OFFER) IN QUESTION WAS SUBMITTED IN THE NAME OF THE DECEASED, AN INDIVIDUAL. IT IS CLEAR THAT THE LETTER OF APRIL 20 TO THE BIDDER DID NOT GIVE RISE TO A CONTRACT. THE LETTER MERELY INFORMED THE DECEASED THAT ITS LOW BID WAS TENTATIVELY ACCEPTED SUBJECT TO COMPLETION OF BID FORMS AND APPROVAL BY THE DIRECTOR. IT IS A FUNDAMENTAL RULE IN THE LAW OF CONTRACTS THAT AN OFFER TERMINATES UPON THE DEATH OF THE OFFEROR. WILLISTON CONTRACTS, PAR. 62 (3RD ED.); SEE RESTATEMENT OF CONTRACTS, PAR. 48, 49; SEE ALSO A-40505, JANUARY 29, 1932, CF. 19 COMP. GEN. 843. THUS WHEN MR. LOUIS A. MASASCHI DIED, HIS OFFER LAPSED. NOR DID THE GOVERNMENT ACQUIRE ANY RIGHTS UNDER THE DECEASED'S BID BOND SINCE MR. MASASCHI'S DEATH MADE IT IMPOSSIBLE TO MAKE AWARD ON HIS BID. RESTATEMENT OF SECURITY, PAR. 117. WHILE IT MAY BE THAT THE DECEASED WAS IN FACT ACTING IN BEHALF OF A CORPORATION FORMED IN JANUARY 1964, BY HIMSELF AND HIS SON; THE CORPORATION CANNOT BE REGARDED AS THE TRUE BIDDER IN PLACE OF THE DECEASED, FOR THE GOVERNMENT DOES NOT CONTRACT WITH UNDISCLOSED PRINCIPALS. 15 COMP. GEN. 566. ACCORDINGLY, THERE IS NO LEGAL BASIS TO MAKE AWARD TO THE CORPORATION, A NONBIDDER ON THIS INVITATION.