B-160125, NOV. 25, 1966

B-160125: Nov 25, 1966

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TO WORTH INDUSTRIAL PROCESSING CORP.: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 22. DAAE07-67-B 0133 SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE. THE INVITATION WAS ISSUED JULY 7. TWO BIDS WERE RECEIVED AND OPENED ON AUGUST 8. IT WAS NOTED BY THE ARMY TANK AUTOMOTIVE CENTER PURCHASING AGENT RESPONSIBLE FOR THE PROCUREMENT THAT THE BID SUBMITTED BY YOUR COMPANY WAS RUBBER STAMPED WITH THE NAME OF THE MANAGER AND THE NAME OF YOUR FIRM. THERE WAS NO SIGNATURE IN THE PLACE PROVIDED IN THE BID FOR THE SIGNATURE OF THE PERSON AUTHORIZED TO SIGN THE BID. THE BID WAS NOT ACCOMPANIED BY ANY LETTER OR OTHER INFORMATION FROM WHICH AN INTENT TO BE BOUND BY THE BID COULD BE ADDUCED. IT WAS THEREFORE CONCLUDED BY THE PROCUREMENT OFFICE THAT THE BID COULD NOT BE ACCEPTED BECAUSE OF THE FAILURE TO FURNISH ON OR BEFORE THE TIME SET FOR BID OPENING CONCLUSIVE EVIDENCE THAT THE RUBBER STAMPINGS WERE TO OPERATE AS A SIGNATURE.

B-160125, NOV. 25, 1966

TO WORTH INDUSTRIAL PROCESSING CORP.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 22, 1966, AND TO YOUR ATTORNEY'S LETTER OF NOVEMBER 14, 1966, PROTESTING THAT YOUR UNSIGNED BID SUBMITTED UNDER ARMY INVITATION FOR BIDS NO. DAAE07-67-B 0133 SHOULD NOT HAVE BEEN REJECTED AS NONRESPONSIVE.

THE INVITATION WAS ISSUED JULY 7, 1966, EXPRESSING THE GOVERNMENT'SREQUIREMENTS FOR BOOT ASSEMBLIES AND PARTS KITS IN FOUR ITEM. TWO BIDS WERE RECEIVED AND OPENED ON AUGUST 8, 1966, AS FOLLOWS:

ITEM NO. 1 ITEM NO. 2 ITEM NO. 3 ITEM NO. 4 ST. CLAIR RUBBER $1.242 $1.35 $2.05 $2.20 WORTH INDUSTRIAL $1.385 $1.385 $1.99 $1.99

AFTER RECEIPT OF THE BIDS, IT WAS NOTED BY THE ARMY TANK AUTOMOTIVE CENTER PURCHASING AGENT RESPONSIBLE FOR THE PROCUREMENT THAT THE BID SUBMITTED BY YOUR COMPANY WAS RUBBER STAMPED WITH THE NAME OF THE MANAGER AND THE NAME OF YOUR FIRM. THERE WAS NO SIGNATURE IN THE PLACE PROVIDED IN THE BID FOR THE SIGNATURE OF THE PERSON AUTHORIZED TO SIGN THE BID. THE BID WAS NOT ACCOMPANIED BY ANY LETTER OR OTHER INFORMATION FROM WHICH AN INTENT TO BE BOUND BY THE BID COULD BE ADDUCED. IT WAS THEREFORE CONCLUDED BY THE PROCUREMENT OFFICE THAT THE BID COULD NOT BE ACCEPTED BECAUSE OF THE FAILURE TO FURNISH ON OR BEFORE THE TIME SET FOR BID OPENING CONCLUSIVE EVIDENCE THAT THE RUBBER STAMPINGS WERE TO OPERATE AS A SIGNATURE. THEREFORE, YOU WERE ADVISED BY LETTER DATED SEPTEMBER 15, 1966, THAT YOUR BID WAS REJECTED AS NONRESPONSIVE.

IT IS YOUR POSITION THAT FAILURE TO SIGN THE BID WAS MERELY AN OVERSIGHT ON THE PART OF A SECRETARY, AND SINCE THE BID BORE THE RUBBER STAMP OF THE COMPANY, A SIGNATURE WAS NOT REQUIRED. YOU STATE THAT UNDER SIMILAR CIRCUMSTANCES IN THE PAST YOU AND OTHER FIRMS HAVE BEEN PERMITTED TO SIGN BIDS AFTER BID OPENING. THIS ALLEGATION, IN SUBSTANCE, IS REPEATED IN YOUR ATTORNEY'S LETTER OF NOVEMBER 14.

PARAGRAPH 2-405 (III) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT A BIDDER SHALL BE GIVEN AN OPPORTUNITY TO CORRECT THE FAILURE TO SIGN HIS BID ONLY IF---

"/A) THE FIRM SUBMITTING THE BID WAS FORMALLY ADOPTED OR AUTHORIZED THE EXECUTION OF DOCUMENTS BY TYPEWRITTEN, PRINTED, OR RUBBER STAMPED SIGNATURE AND SUBMITS EVIDENCE OF SUCH AUTHORIZATION AND THE BID CARRIES SUCH A SIGNATURE, OR

"/B) 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 WITH BID, OR A LETTER SIGNED BY THE BIDDER WITH THE BID REFERRING TO AND CLEARLY IDENTIFYING THE BID ITSELF; * * *.'

THIS REGULATION IS IN ACCORD WITH DECISIONS OF OUR OFFICE WHICH HAVE HELD THAT THE ONLY MANUALLY UNSIGNED BIDS BEARING A TYPEWRITTEN, PRINTED, OR RUBBER-STAMPED SIGNATURE THAT MAY BE CONSIDERED FOR AWARD ARE THOSE ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. 36 COMP. GEN. 523 AND 17 ID. 497. WHEN THE DOCUMENTARY EVIDENCE IS NOT PRESENT AND THE BID MERELY CONTAINS THE STAMPED OR PRINTED NAME AND ADDRESS OF A COMPANY AND A REPRESENTATIVE OF THE COMPANY OUR OFFICE HAS HELD THAT THE BID SHOULD BE REJECTED. 34 COMP. GEN. 439; B-157637, OCTOBER 27, 1965; AND B-151724, JULY 15, 1963.

THE REASONING BEHIND THIS RULE IS THAT WHEN A BID LACKS A PROPER SIGNATURE, AND THERE IS NO OTHER CLEAR INDICATION IN THE BID SUBMISSION THAT THE PURPORTED BIDDER INTENDED TO SUBMIT THE BID, THE CONTRACTING OFFICER HAS NO ASSURANCE THAT THE BID WAS SUBMITTED BY SOMEONE WITH AUTHORITY TO BIND THE BIDDER. FOR THAT REASON, ACCEPTANCE OF SUCH A BID WOULD NOT HAVE AUTOMATICALLY OBLIGATED THE NAMED BIDDER TO PERFORM THE CONTRACT ADVERTISED. THE TEST IN CASES WHERE BIDS ARE NOT MANUALLY SIGNED IS WHETHER THE BID AS SUBMITTED WILL RESULT IN A BINDING CONTRACT UPON THE ACCEPTANCE OF THE BID BY THE GOVERNMENT WITHOUT CONFIRMATION OF THE BIDDER'S INTENTION. IF THE BIDDER CHOOSES TO REMAIN SILENT AFTER THE OPENING OF BIDS HE COULD DISAVOW THE BID BECAUSE OF THE ABSENCE OF A SIGNATURE. THIS WOULD PLACE HIM IN A POSITION TO MAKE AN ELECTION EITHER TO ABIDE BY HIS BID OR TO CLAIM THAT THE BID WAS SUBMITTED IN ERROR BY A PERSON WITHOUT AUTHORITY TO ENTER INTO CONTRACTS ON BEHALF OF A BIDDER. THIS WOULD GIVE HIM MORE THAN ONE CHANCE UNDER THE SAME INVITATION. COMP. GEN. 393, 394, 395. MOREOVER, WHEN A BID IS NONRESPONSIVE IN A MATERIAL RESPECT, IT CANNOT BE CORRECTED EVEN THOUGH THE NONRESPONSIVENESS MAY BE DUE TO MISTAKE OR OVERSIGHT. 38 COMP. GEN. 819.

WHILE IT IS ALLEGED THAT THERE HAVE BEEN OCCASIONS WHEN YOU AND OTHER BIDDERS HAVE BEEN PERMITTED TO SIGN BIDS AFTER BID OPENING, THE CONTRACTING OFFICE DENIES THAT THIS WAS ALLOWED IN ANY SITUATION OTHER THAN A PROPER ONE. IN ANY EVENT, IF AWARDS HAVE BEEN MADE IN THE PAST IN CIRCUMSTANCES IDENTICAL TO THOSE HERE CONSIDERED, SUCH ACTIONS WOULD APPEAR TO HAVE BEEN IMPROPER AND WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR. 36 COMP. GEN. 535, 540.

IN VIEW OF THE FOREGOING, IT WAS NOT IMPROPER FOR THE CONTRACTING OFFICER TO REJECT YOUR BID.

WITH RESPECT TO YOUR ATTORNEY'S INQUIRY REGARDING THE PROCEDURES TO BE FOLLOWED IN CONNECTION WITH A PROTEST OF THIS KIND, SINCE NO CONTRACT WAS AWARDED TO YOU, THE CONTRACT DISPUTE PROCEDURES ARE NOT APPLICABLE AND THE PROTEST IS PROPERLY FOR CONSIDERATION BY OUR OFFICE.