B-157637, OCT. 27, 1965

B-157637, OCT. 27, 1965

TO CARTER INDUSTRIAL LAUNDRY, INC.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. WA-NF-R-1617-8-17-65, BY THE GENERAL SERVICES ADMINISTRATION.

YOUR BID FOR FURNISHING SWEEPING AND WIPING CLOTH RENTAL SERVICE PURSUANT TO THE ABOVE INVITATION WAS RECEIVED AND OPENED AS SCHEDULED ON AUGUST 17, 1965. IT IS REPORTED THAT YOUR BID WAS HAND CARRIED TO THE BID OPENING ROOM AND DEPOSITED, ALONG WITH THE BIDS OF THREE SUBSIDIARY COMPANIES. EACH BID WAS DEPOSITED IN A SEPARATE ENVELOPE AND ALL BUT THE CARTER BID WERE PROPERLY SIGNED. ALTHOUGH THE NAME AND TITLE,"GERALD L. STEMPLER, EXECUTIVE SALES MANAGER," WAS TYPED IN THE SPACE PROVIDED FOR SAME ON THE FACE OF THE BID, THERE WAS NO SIGNATURE ON THE BID, EITHER IN THE SPACE PROVIDED OR ELSEWHERE. IT IS ALSO REPORTED THAT THE BID WAS NOT ACCOMPANIED BY ANY OTHER MATERIAL BEARING A SIGNATURE OF A REPRESENTATIVE OF YOUR COMPANY. THE BID WAS THEREFORE CONSIDERED NONRESPONSIVE AND REJECTED. AWARD OF A CONTRACT WAS MADE TO ANOTHER BIDDER ON SEPTEMBER 2, 1965.

IT IS YOUR CONTENTION THAT THE FAILURE TO SIGN THE BID WAS A MINOR IRREGULARITY WHICH COULD HAVE BEEN WAIVED PURSUANT TO THE TERMS AND CONDITIONS OF THE INVITATION, SECTION 8 (B), AND A BINDING CONTRACT CONSUMMATED BY ACCEPTANCE OF YOUR BID. YOUR BELIEF THAT THE LACK OF A SIGNATURE WAS A MINOR IRREGULARITY IS BASED ON THE FACT THAT CARTER HAS SATISFACTORILY PERFORMED THE CONTRACT WORK FOR TWO YEARS; THE BIDS OF THE SUBSIDIARY COMPANIES WERE PROPERLY COMPLETED AND SIGNED; GERALD L. STEMPLER'S NAME AND TITLE WERE TYPED UNDER THE SIGNATURE SPACE, INDICATING AN INADVERTENT OMISSION OF THE SIGNATURE; AND IT WOULD BE IN THE GOVERNMENT'S INTEREST TO ACCEPT YOUR BID SINCE IT WAS THE LOWEST. UNDER DATE OF OCTOBER 19, 1965, WE RECEIVED A LETTER FROM M. C. WHITE, INC., PUBLIC RELATIONS REPRESENTATIVE, SETTING FORTH MUCH THE SAME ARGUMENTS ON YOUR BEHALF AS ARE SUMMARIZED ABOVE.

THE LACK OF A SIGNATURE ON YOUR BID COULD NOT BE WAIVED OR CORRECTED AFTER OPENING AS A MINOR INFORMALITY OR IRREGULARITY UNDER THE PROVISIONS OF FEDERAL PROCUREMENT REGULATIONS SECTION 1-2.405 (C), WHICH PROVIDES THAT THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CORRECT THE FAILURE TO SIGN A BID OR WAIVE SUCH DEFICIENCY, BUT ONLY IF

"* * * (1) 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, OR A LETTER SIGNED BY THE BIDDER WITH THE BID REFERRING TO AND CLEARLY IDENTIFYING THE BID ITSELF; OR (2) THE FIRM SUBMITTING A BID HAS FORMALLY ADOPTED OR AUTHORIZED BEFORE THE DATE SET FOR OPENING OF BIDS, THE EXECUTION OF DOCUMENTS BY TYPEWRITTEN, PRINTED, OR STAMPED SIGNATURE AND SUBMITS EVIDENCE OF SUCH AUTHORIZATION AND THE BID CARRIES SUCH A SIGNATURE.'

THE ABOVE CITED ADMINISTRATIVE REGULATION IS IN ACCORD WITH THE DECISIONS OF OUR OFFICE IN WHICH WE HAVE HELD THAT UNSIGNED BIDS MAY NOT BE CONSIDERED FOR AWARD UNLESS THE BID IS ACCOMPANIED BY DOCUMENTARY OR OTHER EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. SEE 17 COMP.GEN. 497; 34 ID. 439; AND 36 ID. 523. THE ACTUAL TEST IN CASES OF SUCH NATURE IS WHETHER THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION.

IT IS OUR OPINION THAT THE FACTS WHICH ARE CITED ABOVE IN SUPPORT OF YOUR CONTENTION THAT THE ACCEPTANCE OF YOUR BID WOULD RESULT IN A BINDING CONTRACT DO NOT NECESSARILY REQUIRE THE CONCLUSION THAT IT WAS YOUR CLEAR INTENT TO SUBMIT A BID AND TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. ALTHOUGH WE DO NOT QUESTION THE STATEMENT THAT THE FAILURE TO SIGN THE BID WAS INADVERTENT, IT IS NEVERTHELESS APPARENT THAT YOUR FIRM WAS IN A POSITION, IF IT SO DESIRED, TO DISAVOW THE BID AFTER OPENING BECAUSE IT WAS NOT SIGNED. TO HAVE PERMITTED YOUR COMPANY TO DISAVOW OR AFFIRM THE BID AFTER IT WAS OPENED WOULD HAVE BEEN TANTAMOUNT TO THE GRANTING OF A SECOND CHANCE TO BID, CONTRARY TO THE ESTABLISHED PRINCIPLE OF FORMAL COMPETITIVE PROCUREMENT BY THE GOVERNMENTAL AGENCIES THAT BIDS MAY NOT BE CHANGED AFTER PUBLIC OPENING. SEE CITY OF CHICAGO V. MOHOR, 216 ILL. 320, 74 N.E. 1056.

EVEN ASSUMING THE CORRECTNESS OF YOUR CONTENTION THAT THE CONTRACT AWARD TO THE SUCCESSFUL BIDDER WILL RESULT IN A HIGHER COST TO THE GOVERNMENT, IT HAS BEEN THE POSITION OF OUR OFFICE AND THE COURTS THAT THE STRICT MAINTENANCE OF COMPETITIVE BIDDING PROCEDURES, REQUIRED BY LAW IN CONNECTION WITH THE LETTING OF PUBLIC CONTRACTS, IS INFINITELY MORE IN A PUBLIC INTEREST THAT THE OBTAINING OF A POSSIBLE PECUNIARY ADVANTAGE IN A PARTICULAR CASE BY A VIOLATION OF THE RULES. 17 COMP. GEN. 554; 34 ID. 82; UNITED STATES V. BROOKRIDGE FARM, ILL. F.2D 461, 463; CITY OF CHICAGO V. MOHR, SUPRA. ..END :