B-158607, APR. 21, 1966

B-158607: Apr 21, 1966

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER OF MARCH 1. THE FOUR BIDS RECEIVED IN RESPONSE TO THE SOLICITATION WERE OPENED ON THE ASSIGNED BID OPENING DATE. THE UNSIGNED BID OF GLOBE INDUSTRIES WAS FOUND TO OFFER THE LOWEST PRICE OF $45.60 PER UNIT. THIS BID WAS REJECTED AS NONRESPONSIVE. IS MADE EVIDENT BY "OTHER MATERIAL.'" IT ADVOCATES THEREFORE. WHEN THE OTHER MATERIAL ACCOMPANYING THE BID IS OF SUCH A NATURE THAT THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. THE QUESTION IS WHETHER THE DOCUMENTS OR CIRCUMSTANCES ACCOMPANYING THE SUBMISSION OF THE UNSIGNED BID WOULD CLEARLY AND CONVINCINGLY OVERCOME ANY ATTEMPT BY THE BIDDER TO DISAVOW THE BID AND TO UPSET THE AWARD MADE TO IT ON THE GROUND THAT THE BID LACKED AN AUTHORIZED SIGNATURE.

B-158607, APR. 21, 1966

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER OF MARCH 1, 1966, FROM GLOBE INDUSTRIES, INCORPORATED, OF DAYTON, OHIO, PROTESTING THE REJECTION OF ITS UNSIGNED BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 419 176-66 ISSUED BY THE UNITED STATES NAVAL ORDNANCE PLANT, FOREST PARK, ILLINOIS, ON DECEMBER 29, 1965, IN CONNECTION WITH A PROPOSED PROCUREMENT OF 886 ELECTRIC MOTORS.

THE FOUR BIDS RECEIVED IN RESPONSE TO THE SOLICITATION WERE OPENED ON THE ASSIGNED BID OPENING DATE, JANUARY 17, 1966. THE UNSIGNED BID OF GLOBE INDUSTRIES WAS FOUND TO OFFER THE LOWEST PRICE OF $45.60 PER UNIT, OR A TOTAL OF $40,401.60, BUT AS THE CONTRACTING OFFICER DETERMINED THAT THIS UNSIGNED BID DID NOT CLEARLY INDICATE AN INTENTION OF GLOBE INDUSTRIES, INCORPORATED, TO BE BOUND, THIS BID WAS REJECTED AS NONRESPONSIVE. WHILE AWARD HAS BEEN WITHHELD PENDING A DECISION BY THIS OFFICE, THE CONTRACTING OFFICER INTENDS TO MAKE THE AWARD TO SIEMON MANUFACTURING COMPANY AS THE LOWEST RESPONSIVE RESPONSIBLE BIDDER AT A UNIT PRICE OF $49.75.

THE FIRST PAGE OF THE UNSIGNED BID BEARS THE TYPEWRITTEN NAME AND TITLE OF GLOBE INDUSTRIES, INCORPORATED-S, PROPERLY AUTHORIZED CONTRACT ADMINISTRATOR,"M.M. KNAPP.' THE SECOND PAGE CONTAINS THE INITIALS "M.M.K.' UNDERNEATH THE SERVICE LIFE GUARANTEE ENTRY. PAGE TWO, AND THE FOURTEEN PAGES THEREAFTER, BEAR THE FACSIMILE STAMP "GLOBE INDUSTRIES, INC.' THE DATA AND ENGINEERING REPORTS ATTACHED TO THE BID AND SUBMITTED IN ACCORDANCE WITH PART C OF THE SERVICE LIFE PROVISIONS ON PAGE TWO BEAR FACSIMILE SIGNATURES OF THE BIDDER'S AUTHORIZED ENGINEERING PERSONNEL.

GLOBE INDUSTRIES, INCORPORATED, IN ITS LETTER OF MARCH 1, 1966, CONTENDS:

"WE CONSIDER THE BID TO BE RESPONSIVE. IN ASPR 2-405/III) (B), THE FAILURE TO SIGN A BID CONSTITUTES A MINOR INFORMALITY WHEN, ... THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED ...' IS MADE EVIDENT BY "OTHER MATERIAL.'"

IT ADVOCATES THEREFORE, THAT THE MISSING SIGNATURE BE WAIVED AS A MINOR INFORMALITY OR IRREGULARITY IN THE BID.

SECTION 2-405 (III) (B) OF THE ARMED SERVICES PROCUREMENT REGULATION, UPON WHICH GLOBE INDUSTRIES RELIES, PERMITS THE WAIVER OF FAILURE TO SIGN A BID AS A MINOR INFORMALITY BY THE CONTRACTING OFFICER, WHEN THE OTHER MATERIAL ACCOMPANYING THE BID IS OF SUCH A NATURE THAT THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. IN OTHER WORDS, THE QUESTION IS WHETHER THE DOCUMENTS OR CIRCUMSTANCES ACCOMPANYING THE SUBMISSION OF THE UNSIGNED BID WOULD CLEARLY AND CONVINCINGLY OVERCOME ANY ATTEMPT BY THE BIDDER TO DISAVOW THE BID AND TO UPSET THE AWARD MADE TO IT ON THE GROUND THAT THE BID LACKED AN AUTHORIZED SIGNATURE. SEE 36 COMP. GEN. 523 AND B-156751 OF JUNE 25, 1965. THEREFORE, WE ARE NOT LIMITED TO THE EXAMPLES GIVEN IN THE REGULATION,"THE SUBMISSION OF A BID GUARANTEE WITH BID, OR A LETTER SIGNED BY THE BIDDER WITH THE BID * * * AND CLEARLY IDENTIFYING THE BID ITSELF.' WE MAY CONSIDER ANY MATERIAL WHICH SATISFIES THE ABOVE CRITERIA AS SUFFICIENT TO PROVE THE BIDDER'S INTENTION.

IN B-155049 OF AUGUST 31, 1964, WE FOUND THAT AN UNSIGNED BID WAS RESPONSIVE WHEN ITS COVER SHEET WHICH BORE AN EQUAL OPPORTUNITY REPRESENTATION REQUIRED BY EXECUTIVE ORDER 10925 WAS SIGNED BY A PARTNER OF THE BIDDING GROUP.

AND, DIRECTLY IN POINT, IN OUR DECISION B-139401 OF APRIL 23, 1959, WE ALLOWED AN AWARD WHERE THE BID BORE THE TYPED NAME AND TITLE OF THE OFFICE MANAGER, HAD THE BIDDER'S NAME STAMPED ON EVERY PAGE, AND CONTAINED THE MANUAL INITIALS OF THE OFFICE MANAGER NEAR AN ERASURE.

IN THE LIGHT OF THE ABOVE DECISION, WE FIND AMPLE PRECEDENT FOR THE BELIEF THAT WHAT WAS SUBMITTED BY GLOBE INDUSTRIES, INCORPORATED, EVIDENCES, AS A WHOLE, AN INTENT TO SUBMIT A BID RESPONSIVE TO THE INVITATION AND THAT THE ACCEPTANCE OF THE BID BY THE GOVERNMENT WILL CREATE A VALID AND BINDING CONTRACT.

ACCORDINGLY, YOU ARE ADVISED THAT THE BID OF GLOBE INDUSTRIES, INCORPORATED, SHOULD BE CONSIDERED RESPONSIVE TO THE INVITATION NOTWITHSTANDING THE ABSENCE OF A SIGNATURE.

WE RETURN HEREWITH THE DOCUMENTS YOU ENCLOSED WITH YOUR REPORT TO THIS OFFICE SUBMITTED ON MARCH 24, 1966.