B-169001, MAR. 12, 1970

B-169001: Mar 12, 1970

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EVIDENCE OF BIDDER'S INTENT TO BE BOUND AN UNSIGNED BID NOT CONSTITUTING LEGALLY ACCEPTABLE OFFER WAS PROPERLY REJECTED AS NONRESPONSIVE. PRESENT BID WAS NOT ACCOMPANIED BY ANY DOCUMENT IDENTIFYING BID AS HAVING BEEN EXECUTED BY SOMEONE WITH AUTHORITY TO BIND COMPANY. IT APPEARS FROM THE RECORD BEFORE US THAT TWO COPIES OF THE SUBJECT BID FORMS WERE RECEIVED BY THE PROCURING ACTIVITY IN AN ENVELOPE BEARING THE FULTON SHIPYARD LETTERHEAD AND POSTMARKED ANTIOCH. CHIEF ENGINEER" WERE INSERTED IN THE APPROPRIATE BLOCK ENTITLED "NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER (TYPE OR PRINT). 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.

B-169001, MAR. 12, 1970

BIDS--UNSIGNED--EVIDENCE OF BIDDER'S INTENT TO BE BOUND AN UNSIGNED BID NOT CONSTITUTING LEGALLY ACCEPTABLE OFFER WAS PROPERLY REJECTED AS NONRESPONSIVE. WHILE AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY LETTER, BOND, AMENDMENT OR OTHER DOCUMENT SIGNED BY BIDDER EVIDENCING INTENT TO SUBMIT BID, PRESENT BID WAS NOT ACCOMPANIED BY ANY DOCUMENT IDENTIFYING BID AS HAVING BEEN EXECUTED BY SOMEONE WITH AUTHORITY TO BIND COMPANY, NOR DOES EXISTENCE OF ANNUAL BID BOND IDENTIFY BID IN QUESTION, ABSENCE OF SIGNATURE ON BID APPEARING TO PRECLUDE ENFORCEMENT OF BOND AGAINST SURETY. SEE COMP. GEN. DECS. AND CT. CASE CITED.

TO FULTON SHIPYARD:

WE REFER TO YOUR LETTERS OF JANUARY 5 AND 19, 1970, AND ENCLOSURES, PROTESTING THE REJECTION OF YOUR UNSIGNED LOW BID PURPORTEDLY SUBMITTED UNDER SOLICITATION NO. DACW68-70-B-0020, ISSUED BY THE DEPARTMENT OF THE ARMY, WALLA WALLA DISTRICT, CORPS OF ENGINEERS.

IT APPEARS FROM THE RECORD BEFORE US THAT TWO COPIES OF THE SUBJECT BID FORMS WERE RECEIVED BY THE PROCURING ACTIVITY IN AN ENVELOPE BEARING THE FULTON SHIPYARD LETTERHEAD AND POSTMARKED ANTIOCH, CALIFORNIA, DECEMBER 13, 1969. THE TYPEWRITTEN WORDS "ADRIANO S. DA SILVA, CHIEF ENGINEER" WERE INSERTED IN THE APPROPRIATE BLOCK ENTITLED "NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER (TYPE OR PRINT)," HOWEVER, NEITHER OF THE TWO COPIES CONTAINED A SIGNATURE AS REQUIRED BY THE SOLICITATION, NOR DID ANY SIGNATURE APPEAR ELSEWHERE ON THE ENVELOPE OR ANY PAPER CONTAINED THEREIN.

THE CONTRACTING OFFICER HAS ADVISED THAT PRIOR TO REJECTING THE BID HE CONSIDERED THE APPLICABLE PROCUREMENT REGULATIONS QUOTED BELOW AND PERTINENT DECISIONS OF THIS OFFICE AND THEREAFTER CONCLUDED THAT THE SUBJECT BID DID NOT CONSTITUTE A LEGALLY ACCEPTABLE OFFER, REQUIRING ITS REJECTION AS NONRESPONSIVE TO THE SOLICITATION.

PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 2-405 (III), THE FAILURE OF A BIDDER TO SIGN HIS BID MAY BE WAIVED AS A MINOR INFORMALITY ONLY IF---

"(A) THE FIRM SUBMITTING THE BID HAS 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 * * *."

THE ABOVE CITED 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. THE REASON FOR THIS REQUIREMENT IS THAT WHEN A BID IS NOT SIGNED, AND THERE IS NO OTHER CLEAR INDICATION IN THE BID SUBMISSION THAT THE PURPORTED BIDDER INTENDED TO SUBMIT THE BID, THE CONTRACTING OFFICER CANNOT BE SURE THAT THE BID WAS SUBMITTED BY SOMEONE WITH AUTHORITY TO BIND THE BIDDER, AND THE ACCEPTANCE OF SUCH A BID MAY NOT AUTOMATICALLY OBLIGATE THE NAMED BIDDER. THE REGULATION AND OUR DECISIONS ARE DIRECTED TO PRECLUDING A BIDDER FROM ELECTING, AFTER BIDS HAVE BEEN OPENED AND PRICES HAVE BEEN REVEALED, WHETHER HE WILL ACKNOWLEDGE OR DENY THE BID, SINCE SUCH AN OPTION WOULD GIVE THE BIDDER AN UNFAIR ADVANTAGE OVER OTHER BIDDERS WHOSE BID PRICES WERE REVEALED AT THE OPENING AND WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. AS POINTED OUT BY THE COURT IN SUPERIOR OIL COMPANY V UDALL, 409 F.2D 1115, 1120, (1969), THE REQUIREMENT OF STEADFAST COMPLIANCE WITH COMPETITIVE BIDDING PROCEDURES COMPORTS BEST WITH THE NEED TO PROMOTE THE INTEGRITY OF THE BIDDING PROCESS. THE ACTUAL TEST, THEREFORE, OF WHETHER FAILURE TO SIGN A BID MAY BE WAIVED IS WHETHER THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. SEE 48 COMP. GEN. , B-166601, JUNE 27, 1969, AND CASES CITED THEREIN IN SUPPORT OF THE ABOVE STATED RULES.

TURNING TO THE SITUATION AT HAND, YOUR CORRESPONDENCE PRESENTS SEVERAL BASES IN SUPPORT OF YOUR BELIEF THAT THE FAILURE TO SIGN THE BID SHOULD HAVE BEEN WAIVED AS AN INFORMALITY. FIRST, IT IS ARGUED THAT YOUR WILLINGNESS TO BE BOUND BY THE UNSIGNED BID IS SUFFICIENTLY DEMONSTRATED BY THE FACT THAT YOU PREVIOUSLY SUBMITTED A NEARLY IDENTICAL SIGNED BID UNDER THE FIRST SOLICITATION FOR THIS REQUIREMENT, WHICH WAS CANCELLED BY THE GOVERNMENT BEFORE AWARD. MOREOVER, YOU POINT OUT THAT UPON BEING INFORMED OF THE RESOLICITATION FOR THE REQUIREMENT YOU SPECIFICALLY REQUESTED THE PROCURING ACTIVITY, BOTH VERBALLY AND IN WRITING, FOR A COPY OF THE BID FORMS SO THAT YOU COULD BID THEREON.

WHILE THESE FACTS ADMITTEDLY DEMONSTRATE YOUR INTENTION TO BID ON THE FIRST SOLICITATION AS WELL AS A DESIRE TO HAVE THE DOCUMENTS NECESSARY TO BID ON THE RESOLICITED REQUIREMENTS, WE CANNOT CONCLUDE, EVEN IF THE CONTRACTING OFFICER HAD BEEN AWARE OF THESE FACTS PRIOR TO AWARD, THAT THEY PROVIDE A CLEAR INDICATION OF YOUR STATED INTENTION TO SUBMIT THE UNSIGNED BID FOR THE RESOLICITED REQUIREMENTS. NOTWITHSTANDING YOUR SUBMISSION OF A SIGNED BID ON THE FIRST SOLICITATION--WHICH THE GOVERNMENT REJECTED IN CANCELLING THE SOLICITATION--AND YOUR REQUEST FOR BIDDING DOCUMENTS, IT IS OUR CONSIDERED OPINION THAT BECAUSE OF YOUR FAILURE TO SIGN THE BID IT CANNOT BE CLEARLY ESTABLISHED THAT THE BID WAS SUBMITTED BY SOMEONE WITH AUTHORITY TO BIND THE COMPANY AND YOU THEREFORE COULD HAVE SUCCESSFULLY DENIED RESPONSIBILITY FOR THE BID AFTER BID OPENING.

YOU HAVE POINTED OUT THAT THE FULTON SHIPYARD MAINTAINS AN ANNUAL BID BOND WITH THE CORPS OF ENGINEERS AND YOU CONTEND THIS FACT INDICATES A WILLINGNESS TO BE BOUND BY ALL SUBMISSIONS TO THE CORPS. FURTHER, IT IS ARGUED THAT YOUR INTENTION TO BID IS INDICATED BY THE FACT THAT ALL AMENDMENTS TO THE SOLICITATION WERE ACKNOWLEDGED BY TYPEWRITTEN NOTATION IN THE LOWER OUTSIDE LEFT CORNER OF THE SEALED BID ENVELOPE AND ON THE BOTTOM OF PAGE TWO OF THE BID.

IT HAS BEEN ESTABLISHED THAT AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY A LETTER, BOND, AMENDMENT OR OTHER DOCUMENT SIGNED BY THE BIDDER CLEARLY EVINCING AN INTENT TO SUBMIT THE BID. 36 COMP. GEN. 523 (1957) AND B-164040, JUNE 26, 1968. IN THE PRESENT CASE, HOWEVER, THE BID WAS NOT ACCOMPANIED BY ANY DOCUMENT IDENTIFYING THE BID AS HAVING BEEN EXECUTED BY SOMEONE WITH AUTHORITY TO BIND THE COMPANY. WE ATTACH NO LEGAL SIGNIFICANCE TO THE EXISTENCE OF AN ANNUAL BID BOND, SINCE IT DOES NOT IDENTIFY THE BID IN QUESTION, AND THE ABSENCE OF A SIGNATURE ON THE BID WOULD APPEAR TO PRECLUDE ENFORCEMENT OF THE BOND AGAINST THE SURETY. NEITHER CAN WE CONSIDER THAT THE ACKNOWLEDGMENT OF AMENDMENTS TO THE INVITATION BY TYPEWRITTEN NOTATION ON THE ENVELOPE AND INVITATION ESTABLISHES THE AUTHORIZED SUBMISSION OF THE UNSIGNED BID BY FULTON SHIPYARD.

YOU ALSO OBJECT TO THE FACT THAT THE CONTRACTING OFFICER FAILED TO PROVIDE YOU WITH AN OPPORTUNITY TO PRESENT YOUR CASE BEFORE AWARD WITH RESPECT TO WHETHER YOUR FIRM HAD FORMALLY AUTHORIZED THE USE OF TYPEWRITTEN SIGNATURES OR WHETHER YOUR INTENT TO BE BOUND BY THE TERMS OF THE UNSIGNED BID WAS OTHERWISE EVIDENT.

AS STATED ABOVE THE PROPER TEST AS TO BOTH ASPECTS WHICH YOU APPARENTLY DESIRED TO DISCUSS WITH THE CONTRACTING OFFICER BEFORE AWARD IS WHETHER THE BID AS SUBMITTED WOULD EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. IN THE ABSENCE OF ANY REPRESENTATION BY YOU THAT YOU HAD PREVIOUSLY ADOPTED OR AUTHORIZED THE USE OF TYPEWRITTEN SIGNATURE, WE BELIEVE IT WOULD HAVE BEEN IMPROPER FOR THE CONTRACTING OFFICER TO HAVE PROVIDED YOU WITH AN OPPORTUNITY TO ACKNOWLEDGE OR DENY THE BID SINCE THIS WOULD HAVE GIVEN YOU AN UNFAIR ADVANTAGE OVER OTHER BIDDERS WHOSE BID PRICES WERE REVEALED AT THE OPENING. SEE 48 COMP. GEN. , B-166601, JUNE 27, 1969, AND B-150459, MARCH 6, 1963.

FOR THE REASONS STATED WE MUST CONCLUDE THAT YOUR BID WAS PROPERLY REJECTED AND YOUR PROTEST IS THEREFORE DENIED.