B-156270, APR. 7, 1965

B-156270: Apr 7, 1965

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SESSLER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5. THE ELEVEN BIDS RECEIVED IN RESPONSE TO THE INVITATION FOR THIS JOB WERE OPENED ON JANUARY 19. 740 WAS THE LOWEST. YOUR BID WAS FOUND TO BE NONRESPONSIVE BECAUSE IT WAS NOT SIGNED. AWARD OF A CONTRACT WAS SUBSEQUENTLY MADE TO THE LOWEST RESPONSIVE BIDDER ON FEBRUARY 18. IT IS REPORTED THAT BOTH HOWARD STEIKER. OBSERVED AT THE TIME OF OPENING THAT NONE OF THE THREE COPIES OF THE BID SUBMITTED BY YOU WERE SIGNED. THAT NO OTHER DOCUMENT WAS EITHER ATTACHED TO THE BID FORMS OR IN THE ENVELOPE CONTAINING THE BID. IT WAS THEREFORE DETERMINED. YOU WERE SO NOTIFIED BY LETTER DATED JANUARY 26. YOU CONTEND THAT YOUR BID SHOULD BE CONSIDERED RESPONSIVE BECAUSE THE BID WAS ACCOMPANIED BY A COVER LETTER WHICH WAS SIGNED BY YOU.

B-156270, APR. 7, 1965

TO MR. L. M. SESSLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1965, AND ENCLOSURES, PROTESTING AGAINST REJECTION OF YOUR BID FOR DEMOLITION OF A BUILDING AT THE GENERAL SERVICES ADMINISTRATION DEPOT, ROMULUS, NEW YORK.

THE ELEVEN BIDS RECEIVED IN RESPONSE TO THE INVITATION FOR THIS JOB WERE OPENED ON JANUARY 19, 1965, AND YOUR BID IN THE AMOUNT OF $1,740 WAS THE LOWEST. HOWEVER, YOUR BID WAS FOUND TO BE NONRESPONSIVE BECAUSE IT WAS NOT SIGNED, AND AWARD OF A CONTRACT WAS SUBSEQUENTLY MADE TO THE LOWEST RESPONSIVE BIDDER ON FEBRUARY 18, 1965.

IT IS REPORTED THAT BOTH HOWARD STEIKER, CONTRACTING SPECIALIST, WHO OPENED THE BIDS, AND LOIS KRAUSS, BID CUSTODIAN, OBSERVED AT THE TIME OF OPENING THAT NONE OF THE THREE COPIES OF THE BID SUBMITTED BY YOU WERE SIGNED, AND THAT NO OTHER DOCUMENT WAS EITHER ATTACHED TO THE BID FORMS OR IN THE ENVELOPE CONTAINING THE BID. IT WAS THEREFORE DETERMINED, AND YOU WERE SO NOTIFIED BY LETTER DATED JANUARY 26, 1965, THAT IN THE ABSENCE OF A SIGNATURE ON THE BID OR OTHER SIGNED DOCUMENT ACCOMPANYING THE BID INDICATING YOUR INTENTION TO BE BOUND THEREBY, YOUR BID COULD NOT BE CONSIDERED.

YOU CONTEND THAT YOUR BID SHOULD BE CONSIDERED RESPONSIVE BECAUSE THE BID WAS ACCOMPANIED BY A COVER LETTER WHICH WAS SIGNED BY YOU, THEREFORE EVINCING YOUR INTENTION TO BE BOUND BY THE BID AND BECAUSE YOU "HAD SIGNED THE BID, BUT ON THE WRONG LINE.' YOU FURTHER CONTEND THAT YOU SHOULD HAVE BEEN PERMITTED TO CORRECT THIS "MINOR IRREGULARITY" PURSUANT TO FEDERAL PROCUREMENT REGULATION 2-405/1 2.405).

WITH REGARD TO YOUR CONTENTION CONCERNING CORRECTION OF YOUR FAILURE TO SIGN THE BID, THE CITED REGULATION PROVIDES THAT THE CONTRACTING OFFICER SHALL GIVE A BIDDER AN OPPORTUNITY TO CURE A DEFICIENCY RESULTING FROM FAILURE TO SIGN A BID, OR SHALL WAIVE SUCH FAILURE, BUT ONLY IF "THE UNSIGNED BID IS ACCOMPANIED BY OTHER MATERIAL INDICATING THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT, SUCH AS A BID GUARANTEE, OR A LETTER SIGNED BY THE BIDDER REFERRING TO AND CLEARLY IDENTIFYING THE BID ITSELF.' AS PREVIOUSLY STATED, THE PROCURING ACTIVITY ADVISED YOU IN ITS LETTER OF JANUARY 26, 1965, THAT YOUR BID WAS NONRESPONSIVE BECAUSE IT WAS NEITHER SIGNED NOR ACCOMPANIED BY ANY OTHER SIGNED DOCUMENT INDICATING YOUR INTENTION TO BE BOUND BY THE UNSIGNED BID. IN A CALL TO THE ACTIVITY ON FEBRUARY 2, 1965, TO PROTEST REJECTION OF YOUR BID, YOU FOR THE FIRST TIME CLAIMED THAT THERE HAD BEENA SIGNED LETTER WITH YOUR BID, ALTHOUGH IT IS REPORTED YOU HAD TELEPHONED ON JANUARY 29, 1965, TO EXPLAIN YOUR FAILURE TO SIGN THE BID. BY LETTER DATED FEBRUARY 2, YOU FORWARDED WHAT PURPORTS TO BE A CARBON COPY OF A LETTER DATED JANUARY 12, 1965, WHICH YOU CLAIM WAS SUBMITTED WITH THE BID. THE PROCURING ACTIVITY HAS MADE A CAREFUL INVESTIGATION AND HAS OBTAINED SWORN STATEMENTS FROM THE EMPLOYEES WHO OPENED THE BID THAT NO SUCH LETTER WAS EITHER ATTACHED TO THE BID OR IN THE ENVELOPE CONTAINING THE BID.

IT IS THE LONG-ESTABLISHED RULE OF THE GOVERNMENT ACCOUNTING OFFICERS TO ACCEPT STATEMENTS OF FACT BY ADMINISTRATIVE OFFICERS OF THE GOVERNMENT IN CASES OF DISPUTE BETWEEN THE ADMINISTRATIVE OFFICERS AND A PRIVATE INDIVIDUAL, UNLESS THERE IS SUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION OF CORRECTNESS OF SUCH STATEMENTS. 27 COMP. GEN. 568, 570. WE DO NOT THINK YOU HAVE SUBMITTED SUCH EVIDENCE IN THE PRESENT CASE AS WOULD JUSTIFY OUR CONCLUDING THAT A SIGNED ORIGINAL OF THE JANUARY 12, 1965, LETTER WAS, IN FACT, WITH YOUR BID AT THE TIME IT WAS OPENED. MAY NOT, THEREFORE, TAKE EXCEPTION TO THE ADMINISTRATIVE DECISION THAT YOUR BID WAS NONRESPONSIVE, AS SUBMITTED, AND THAT SUCH DEFICIENCY COULD NEITHER BE CURED NOR WAIVED UNDER APPLICABLE LAW AND REGULATION.

AS TO YOUR CONTENTION THAT YOU DID IN FACT SIGN THE BID BY MANUALLY PRINTING YOUR NAME IN THE SPACE PROVIDED FOR THE NAME AND TITLE OF THE SIGNER, WE NOTE THAT YOU DID NOT MAKE SUCH AN ASSERTION PRIOR TO YOUR LETTER OF MARCH 5 TO OUR OFFICE. WHILE IT IS ACKNOWLEDGED THAT A SIGNATURE MAY BE MADE BY A MARK, OR BY A STAMP, OR TYPEWRITTEN OR PRINTED MANUALLY, IF IT IS SO INTENDED, OUR EXAMINATION OF YOUR ORIGINAL BID SHOWS THAT ON NONE OF THE THREE COPIES OF THE BID WAS THE NAME PLACED IN THE SPACE PROVIDED FOR SIGNATURE, BUT RATHER IN THE SAPCE FOR THE BIDDER'S FIRM NAME, WITH THE SIGNATURE LINE LEFT BLANK. IT IS ALSO NOTED THAT YOU NEVER MADE THIS CLAIM IN THE SEVERAL TELEPHONE CONVERSATIONS WITH PERSONNEL OF THE PROCURING ACTIVITY; THAT YOUR LETTER OF FEBRUARY 2, 1965, TO THE PROCURING ACTIVITY STATES,"THE LACK OF MY SIGNATURE ON THE BID FORM WAS STRICTLY AN OVERSIGHT; " AND THAT YOUR SIGNATURE ON THIS LETTER IS IN CURSIVE FORM, NOT PRINTED. IN THESE CIRCUMSTANCES, IT APPEARS THAT ACCEPTANCE OF YOUR BID AS SUBMITTED WOULD HAVE LEFT YOU IN POSITION TO DISAVOW ANY OBLIGATION THEREUNDER, AND THUS TO ELECT, AFTER BID OPENING AND DISCLOSURE OF ALL BIDS, WHETHER OR NOT TO TAKE THE CONTRACT.

SINCE WE SEE NO LEGAL BASIS FOR OUR OFFICE TO OBJECT TO THE ADMINISTRATIVE DECISION THAT YOUR ..END :