B-176321, AUG 25, 1972

B-176321: Aug 25, 1972

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THE LOW BID ESTABLISHES THAT IT WAS BEING SUBMITTED BY HYDRO-MECHANICAL AS ONE OF THE PARTIES TO A JOINT VENTURE. THE LEGAL ENTITY COVERED BY THE BID BOND THEREFORE IS ESTABLISHED WITHOUT LOOKING OUTSIDE THE BIDDING DOCUMENTS. BIDS WERE OPENED ON JUNE 7. 000 WAS LOW. 000 WAS SECOND LOW AND THE THIRD LOW BIDDER WAS PAUL HARDEMAN ENGINEERING AND CONSTRUCTION COMPANY. ON PAGE 2 OF THIS BID THE SPACE FOR THE NAME OF BIDDER WAS FILLED IN AS "HYDRO-MECHANICAL CO.". WHICH IS PART OF THE BID. THE NAME OF BIDDER SPACE WAS FILLED IN AS "HYDRO-MECHANICAL CO./A JOINT VENTURE.". THE SIGNATORIES FOR THE PRINCIPAL WERE "PAUL ANDERSON - PRESIDENT" AND "R. THE VA ADVISED HYDRO-MECHANICAL THAT ITS BID WAS REJECTED AS NONRESPONSIVE FOR THE REASON THAT THE NAMED PRINCIPAL WAS DIFFERENT FROM THE NAMED BIDDER.

B-176321, AUG 25, 1972

BID PROTEST - BIDDER IDENTIFICATION - RESPONSIVENESS DECISION ALLOWING THE PROTEST OF THE HYDRO-MECHANICAL COMPANY AGAINST THE REJECTION OF THEIR BID ON A CONSTRUCTION PROJECT FOR AIR CONDITIONING A BUILDING AT THE VA HOSPITAL, LONG BEACH, CALIF. IN THIS CASE, THE LOW BID ESTABLISHES THAT IT WAS BEING SUBMITTED BY HYDRO-MECHANICAL AS ONE OF THE PARTIES TO A JOINT VENTURE. THE BID BOND ATTACHED TO THE BID IDENTIFIES THE OTHER PARTY TO THE JOINT VENTURE. THE LEGAL ENTITY COVERED BY THE BID BOND THEREFORE IS ESTABLISHED WITHOUT LOOKING OUTSIDE THE BIDDING DOCUMENTS. THE COMP. GEN. BELIEVES THAT THE SURETY WOULD BE BOUND BY THE BOND SUBMITTED WITH THE BID AND, THEREFORE, FINDS THE HYDRO-MECHANICAL BID RESPONSIVE. B-169369, APRIL 7, 1970.

TO MR. DONALD E. JOHNSON:

A LETTER OF JUNE 27, 1972, FROM THE OFFICE OF CONSTRUCTION, REFERENCE 08B1, CONCERNS A PROTEST FROM HYDRO-MECHANICAL COMPANY UNDER BID FORM (CONSTRUCTION CONTRACT), PROJECT NO. 04-5628, SPECIFICATION NO. 7125 AE, ISSUED ON APRIL 5, 1972, FOR AIR CONDITIONING BUILDING NO. 122 AT THE VETERANS ADMINISTRATION HOSPITAL, LONG BEACH, CALIFORNIA. AN ADDITIONAL LETTER OF JUNE 28, 1972, FORWARDED A REPORT ON THE PROTEST FROM RAY WILSON COMPANY, THE SECOND LOW BIDDER, UNDER THE SAME INVITATION.

BIDS WERE OPENED ON JUNE 7, 1972, AND THE BID FROM HYDRO-MECHANICAL COMPANY AT $2,175,000 WAS LOW. THE BID FROM RAY WILSON COMPANY AT $2,326,000 WAS SECOND LOW AND THE THIRD LOW BIDDER WAS PAUL HARDEMAN ENGINEERING AND CONSTRUCTION COMPANY, INCORPORATED, AT $2,398,000.

THE LOW BIDDER FILLED IN THE SPACE UNDER NAME OF BIDDER ON PAGE 1 OF STANDARD FORM 21 AS "HYDRO-MECHANICAL CO./A JOINT VENTURE, 14107 CRENSHAW BLVD., HAWTHORNE, CALIFORNIA ***." ON PAGE 2 OF THIS BID THE SPACE FOR THE NAME OF BIDDER WAS FILLED IN AS "HYDRO-MECHANICAL CO." AND SIGNED BY PAUL ANDERSON AS PRESIDENT. ON THE REPRESENTATIONS AND CERTIFICATIONS SECTION ON STANDARD FORM 19-B, WHICH IS PART OF THE BID, THE NAME OF BIDDER SPACE WAS FILLED IN AS "HYDRO-MECHANICAL CO./A JOINT VENTURE." THE BID BOND ACCOMPANYING THE BID, WHICH REFERENCED THE IFB NUMBER, NAMED "HYDRO-MECHANICAL CO. AND J. HERMAN COMPANY, A JOINT VENTURE ***" AS THE PRINCIPAL. THE SIGNATORIES FOR THE PRINCIPAL WERE "PAUL ANDERSON - PRESIDENT" AND "R. J. PIERCE - VICE PRESIDENT."

BY LETTER DATED JUNE 14, 1972, THE VA ADVISED HYDRO-MECHANICAL THAT ITS BID WAS REJECTED AS NONRESPONSIVE FOR THE REASON THAT THE NAMED PRINCIPAL WAS DIFFERENT FROM THE NAMED BIDDER. THE PROTEST FROM THE LOW BIDDER IS AGAINST THIS DETERMINATION. THE PROTEST BY THE SECOND LOW BIDDER CONCERNS THE REJECTION OF ITS BID FOR OTHER REASONS.

EACH MEMBER OF A JOINT VENTURE ACTS AS BOTH PRINCIPAL AND AGENT OF HIS COVENTURES AND EACH OF SEVERAL JOINT VENTURES HAS POWER TO SUBJECT THE OTHERS TO LIABILITY TO THIRD PARTIES IN MATTERS WHICH ARE STRICTLY WITHIN THE SCOPE OF THEIR AUTHORITY. WOOD V. WESTERN BEEF FACTORY, INC., 378 F.2D 96 (10TH CIR. 1967) AND 46 AM. JUR. 2D 76.

IN B-169369, APRIL 7, 1970, THE PRINCIPAL NAMED ON THE BID BOND WAS A JOINT VENTURE INCLUDING A CORPORATION WHICH WAS THE NOMINAL BIDDER. INFORMATION SUBMITTED WITH THE BID ESTABLISHED THE INTENTION AND AGREEMENT OF THE TWO AFFILIATED COMPANIES TO SUBMIT A JOINT BID UNDER THE SUBJECT INVITATION. WE CONCLUDED THAT SINCE THE INTENDED BIDDER AND THE PRINCIPAL ON THE BID BOND WERE THE SAME LEGAL ENTITY, THE SURETY WAS BOUND BY THE BOND SUBMITTED WITH THE BID IN THE EVENT OF A FAILURE TO EXECUTE THE CONTRACT AND OTHER DOCUMENTS UPON ACCEPTANCE OF THE BID; CONSEQUENTLY, THE BID WAS FOUND RESPONSIVE.

IN ANOTHER DECISION, B-175774, JUNE 29, 1972, 51 COMP. GEN. , THE LOW BIDDER REPRESENTED ITSELF AS A CORPORATE ENTITY (CANYON CONSTRUCTION COMPANY), AND THE BID BOND DESIGNATED AS THE PRINCIPAL, "CANYON CONSTRUCTION COMPANY AND ASSOCIATES, A JOINT VENTURE." IN THAT CASE WE HELD THAT SINCE THE PRIMARY EVIDENCE OF THE JOINT VENTURE WERE THE STATEMENTS AND AFFIDAVITS SUBMITTED AFTER THE BID OPENING, THE BID COULD NOT BE MADE RESPONSIVE BY CHANGING THE NAME OF THE NOMINAL BIDDER. THIS CASE, HOWEVER, THE LOW BID ESTABLISHES THAT IT WAS BEING SUBMITTED BY HYDRO-MECHANICAL AS ONE OF THE PARTIES TO A JOINT VENTURE. THE BID BOND ATTACHED TO THE BID IDENTIFIES THE OTHER PARTY TO THE JOINT VENTURE. THE LEGAL ENTITY COVERED BY THE BID BOND THEREFORE IS ESTABLISHED WITHOUT LOOKING OUTSIDE THE BIDDING DOCUMENTS. IN OUR VIEW THE SURETY WOULD BE BOUND BY THE BOND SUBMITTED WITH THE BID MAKING THIS SITUATION ANALOGOUS TO B-169369, SUPRA.

FOR THESE REASONS WE FIND THAT THE LOW BID IS RESPONSIVE AND MAY BE CONSIDERED FOR AWARD. IN THE CIRCUMSTANCES, WE DO NOT FIND IT NECESSARY TO CONSIDER FURTHER THE PROTEST FROM THE SECOND LOW BIDDER.