B-171618, FEB 17, 1971

B-171618, FEB 17, 1971

CONTRACTS - UNSIGNED BID DECISION HOLDING THAT AUTOMATED DATATRON, INC. MAY BE PERMITTED TO SIGN A BID SUBMITTED IN RESPONSE TO AN IFB ISSUED BY THE NAVY PURCHASING OFFICE COVERING KEY PUNCH AND KEY VERIFYING SERVICES. THE WITNESSED DEPOSITING OF THE UNSIGNED BID BY THE FIRM'S PRESIDENT FIVE MINUTES PRIOR TO THE SCHEDULED BID OPENING TIME COULD BE RELIED UPON BY THE GOVERNMENT AS EVIDENCING A CLEAR INTENT ON THE PART OF AUTOMATED DATATRON, INC., TO BE BOUND BY THE TERMS OF THE UNSIGNED BID. FURTHER, WHERE THE PRESIDENT OF THE FIRM EXPRESSED HIS INTENTION TO BE BOUND BY THE UNSIGNED BID PRIOR TO HAVING HEARD THE PRICES OF THE OTHER BIDDERS, IT DOES NOT APPEAR THAT TO HAVE PERMITTED HIM TO SIGN THE BID AT THAT TIME WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS. ACCORDINGLY, THE COMPANY MAY BE PERMITTED TO SIGN THE BID AND IT MAY BE CONSIDERED FOR THE AWARD.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTERS DATED DECEMBER 24, 1970, AND JANUARY 5, 1971, SUP 0232, FROM THE NAVAL SUPPLY SYSTEMS COMMAND, REQUESTING A DECISION AS TO WHETHER AUTOMATED DATATRON, INCORPORATED, WASHINGTON, D.C., MAY BE PERMITTED TO SIGN A BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00600-71-B-0086, ISSUED OCTOBER 9, 1970, BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., COVERING KEY PUNCH AND KEY VERIFYING SERVICES FOR THE NAVAL WEAPONS ENGINEERING SUPPORT ACTIVITY.

EIGHT BIDS, INCLUDING AN UNSIGNED BID SUBMITTED BY AUTOMATED DATATRON, WERE RECEIVED AS OF THE SCHEDULED BID OPENING TIME, 10:30 A.M., EASTERN STANDARD TIME, OCTOBER 30, 1970. ONE OF THE EIGHT BIDS WAS DETERMINED TO BE NONRESPONSIVE. THE BID OF AUTOMATED DATATRON, WHICH WAS NOT SIGNED, IS THE LOWEST OF THE SEVEN OTHER BIDS.

IT IS REPORTED THAT THE UNSIGNED AUTOMATED DATATRON BID WAS SUBMITTED IN A TIMELY MANNER PRIOR TO BID OPENING TIME. MR. CHARLES E. MARKS, PRESIDENT OF THE COMPANY, WAS SEEN TO HAVE DROPPED THE BID IN THE BID BOX AT ABOUT 10:25 A.M., EASTERN STANDARD TIME, OCTOBER 30, 1970. AFTER 10:30 A.M., BUT PRIOR TO READING ANY PRICES, ALL BIDS WERE OPENED. THE AUTOMATED DATATRON BID WAS THE FIRST OPENED BY THE BID OPENING OFFICER. ONE OF HIS ASSISTANTS, MR. HOWARD MASON, NOTED THAT THE BID, WHICH HAD BEEN PREPARED FOR MR. MARKS' SIGNATURE, HAD NOT BEEN SIGNED. MR. MASON HAD SEEN MR. MARKS DEPOSIT THE BID A SHORT TIME EARLIER AND HE NOTIFIED MR. MARKS THAT THE BID WAS NOT SIGNED. THIS ANNOUNCEMENT CAME PRIOR TO EXPOSURE OF BIDDERS' NAMES AND PRICES TO THE PUBLIC.

MR. MARKS EXPRESSED CONCERN THAT THE BID WAS NOT SIGNED AND ASKED WHAT ACTION HE COULD TAKE. HE WAS ADVISED TO SEE THE NEGOTIATOR AND MR. MARKS CONTACTED THE NEGOTIATOR AT ABOUT 10:45 A.M. MR. MARKS EXPLAINED THE SITUATION AND REQUESTED THAT HE BE ALLOWED TO SIGN THE BID. HE STATED THAT HE HAD HEARD NO BID PRICES AND INDICATED THAT HE WANTED TO GO ON RECORD AS AFFIRMING HIS DESIRE TO SIGN THE BID IN SPITE OF OTHER BID PRICES. HE DID NOT WANT TO BE PLACED IN THE POSITION OF HAVING THE OPTION TO SIGN OR NOT TO SIGN THE BID DEPENDING ON THE OTHER PRICES, AND HE EXPRESSED IN A POSITIVE MANNER HIS INTENTION THAT AUTOMATED DATATRON WOULD BE BOUND BY THE TERMS OF ITS BID.

IT IS PROVIDED IN PARAGRAPH 2-405(III), ARMED SERVICES PROCUREMENT REGULATION, THAT 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 REGULATION IS IN ACCORD WITH DECISIONS OF OUR OFFICE IN WHICH WE HAVE STATED THAT UNSIGNED BIDS MAY NOT, AS A GENERAL RULE, BE CONSIDERED FOR AWARD UNLESS THE BID IS ACCOMPANIED BY DOCUMENTARY OR OTHER EVIDENCE SHOWING AN INTENTION BY THE BIDDER TO BE BOUND BY THE SUBMITTED BID. COMP. GEN. 648 (1969). HOWEVER, AS WE STATED IN 48 COMP. GEN. 801 (1969), THERE MAY BE CIRCUMSTANCES WHERE THE FAILURE OF A BIDDER TO SIGN A BID MAY BE WAIVED. IN THAT CASE, ONLY ONE BID WAS RECEIVED AT THE TIME OF BID OPENING BUT THE BID WAS UNSIGNED. A REPRESENTATIVE OF THE BIDDER COMPANY PRESENT AT THE BID OPENING PROMPTLY OFFERED TO SIGN THE BID. WHILE THIS REQUEST WAS BEING CONSIDERED, ANOTHER BID WAS RECEIVED AND IT WAS DETERMINED THAT THIS LATE BID COULD BE CONSIDERED FOR THE AWARD. BUT THE UNSIGNED BID WAS LOWER, AND THE CONTRACTING OFFICER PROPOSED TO ACCEPT THE UNSIGNED LOW BID. WE STATED THAT SINCE THE LOW BIDDER'S REPRESENTATIVE HAD INDICATED AN INTENT TO SIGN THE BID AT A TIME WHEN IT WAS THE ONLY BID RECEIVED, THE QUESTION OF PREJUDICE TO OTHER BIDDERS WAS NOT INVOLVED, AND THE LOW BIDDER SHOULD HAVE BEEN PERMITTED TO SIGN THE BID AT THAT TIME. WE CONCLUDED THAT THE UNSIGNED BID SHOULD BE TREATED AS IF PERMISSION TO SIGN HAD BEEN GRANTED AND THEREFORE, THE BID SHOULD BE CONSIDERED FOR AWARD.

IN THE INSTANT CASE IT IS REPORTED THAT MR. MARKS, PRESIDENT OF AUTOMATED DATATRON, EXPRESSED HIS INTENTION TO BE BOUND BY THE UNSIGNED BID PRIOR TO HAVING HEARD THE PRICES OF THE OTHER BIDDERS AT THE BID OPENING. IN SUCH CIRCUMSTANCES, IT DOES NOT APPEAR THAT TO HAVE PERMITTED HIM TO SIGN THE BID AT THAT TIME WOULD HAVE BEEN PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS. SEE IN THIS CONNECTION, 33 COMP. GEN. 508 (1954), IN WHICH THE BIDDER'S AUTHORIZED REPRESENTATIVE WAS PERMITTED IN THE BID OPENING ROOM JUST PRIOR TO THE OPENING OF BIDS, TO ORALLY ACKNOWLEDGE RECEIPT OF MATERIAL AMENDMENTS TO THE IFB.

WE BELIEVE THAT THE WITNESSED DEPOSITING OF THE UNSIGNED BID BY THE FIRM'S PRESIDENT, FOR WHOSE SIGNATURE THE BID HAD BEEN PREPARED, JUST FIVE MINUTES PRIOR TO THE SCHEDULED BID OPENING TIME, COULD BE RELIED UPON BY THE GOVERNMENT AS EVIDENCING A CLEAR INTENT ON THE PART OF AUTOMATED DATATRON TO BE BOUND BY THE TERMS OF THE UNSIGNED BID. IN THIS CONNECTION, WE NOTE THAT THE CONTRACT CALLS FOR THE FURNISHING OF CERTAIN SERVICES TO BE PERFORMED WITHIN A PERIOD OF ONE YEAR. WHILE ITEM 1 OF THE CONTRACT DOES REQUIRE THE CONTRACTOR TO FURNISH AN ESTIMATED QUANTITY OF 100,000 EAM CARDS FOR KEY PUNCHING, WE UNDERSTAND THAT THE TOTAL VALUE OF SUCH CARDS IS WELL BELOW THE $500 AMOUNT SPECIFIED IN SECTION 2-201 OF THE UNIFORM COMMERCIAL CODE FOR SALES SUBJECT TO THE STATUTE OF FRAUDS.

ACCORDINGLY, WE CONCLUDE THAT THE COMPANY MAY BE PERMITTED TO SIGN THE BID AND THAT THE BID AS SIGNED PROPERLY MAY BE CONSIDERED FOR THE AWARD.