B-176433, AUG 16, 1972

B-176433, AUG 16, 1972

BID PROTEST - UNSIGNED BID - ALL OR NONE QUALIFICATION DENIAL OF PROTEST BY DISPOSAL SYSTEMS, INC., AGAINST THE AWARD OF A CONTRACT TO MOORE SERVICE, INC., UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, BERGSTROM AFB, TEX. THE FAILURE OF A BIDDER TO SIGN THE BID WHICH BEARS HIS TYPEWRITTEN SIGNATURE, BUT IS NOT ACCOMPANIED BY DOCUMENTARY EVIDENCE INDICATING THAT THE TYPEWRITTEN SIGNATURE HAD BEEN ADOPTED OR AUTHORIZED, IS A SUBSTANTIVE DEFECT WHICH COULD NOT BE WAIVED AFTER BID OPENING. 34 COMP. GEN. 439 (1955). THE BID OF A&P SANITATION WAS PROPERLY REJECTED UNDER THAT RULE. WITH RESPECT TO THE MOORE BID, A BID IS NOT RENDERED NONRESPONSIVE BY AN ALL OR NONE QUALIFICATION UNLESS THE IFB SO PROVIDES. ASPR 2 404.5. SINCE THE IFB DID NOT CONTAIN SUCH A RESTRICTIVE PROVISION, THE COMP. GEN. MUST AGREE THAT MOORE'S BID WAS RESPONSIVE AND PROPERLY ENTITLED TO AN AWARD.

TO DISPOSAL SYSTEMS, INC.:

WE REFER TO YOUR LETTER DATED JULY 26, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO MOORE SERVICE, INC. (MOORE), UNDER INVITATION FOR BIDS (IFB) F41687-72-B-0056, ISSUED BY THE PROCUREMENT DIVISION, BERGSTROM AIR FORCE BASE, TEXAS.

THE IFB WAS ISSUED AS A TOTAL SMALL BUSINESS SET-ASIDE ON MAY 26, 1972, FOR COLLECTION AND DISPOSAL SERVICES FOR BASE REFUSE. THE BIDDING SCHEDULE CALLED FOR PRICING FOUR ITEMS. THE "EVALUATION FACTORS FOR AWARD" CLAUSE, PART I, SECTION "D," PROVIDED FOR AWARD AS FOLLOWS:

"ONE AWARD WILL BE MADE TO THAT LOW RESPONSIBLE BIDDER SUBMITTING THE LOWEST AGGREGATE BID ON ITEMS 1, 2, AND 4, OR ITEMS 1, 3, AND 4. BID ITEM 2 OR ALTERNATE BID ITEM 3 WILL BE SELECTED AT THE OPTION OF THE GOVERNMENT."

ON JUNE 10, 1972, AMENDMENT M01 WAS ISSUED EXTENDING THE TIME FOR RECEIPT OF BIDS TO JUNE 20 AND CORRECTING THE COMMENCEMENT OF SERVICE DATE IN ITEM 2 FROM JUNE 1, 1972, TO JULY 1, 1972. THE AMENDMENT ALSO SUBSTITUTED A NEW "EVALUATION FACTORS FOR AWARD" CLAUSE SUBSTANTIALLY AS CONTAINED IN PARAGRAPH 2-201(A)(4)(III) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) AND FURTHER PROVIDED FOR THE ADDITION OF A PREDETERMINED EVALUATION COST TO BE ANNOUNCED JUST PRIOR TO BID OPENING - IN THE EVENT AWARD WAS MADE FOR ITEM 2. ADDITIONALLY, THE CLAUSE STATED:

"TWO AWARDS MAY BE MADE AS A RESULT OF THIS SOLICITATION; ONE AWARD ON ITEM 1 ***; AND ONE AWARD ON ITEMS 2 OR 3 AND ITEM 4 ***."

THE EVALUATION FACTOR APPLICABLE TO ITEM 2 WAS ANNOUNCED AS $10,478.

THE BIDS RECEIVED ON A MONTHLY BASIS WERE AS FOLLOWS:

ITEM 1 ITEM 2 ITEM 3 ITEM 4

A&P SANITATION $1,584 $1,584 $165

MOORE SERVICE, INC. $3,669 1,500 1,619 25

DISPOSAL SYSTEMS, INC. 3,300 2,500 2,500 500

DURING THE COURSE OF BID EVALUATION, IT WAS NOTICED THAT NEITHER THE BID OF A&P NOR AMENDMENT M01 WAS SIGNED IN THE SPACE PROVIDED, BUT WAS COMPLETED BY TYPEWRITER. IN THIS REGARD, IT IS FURTHER NOTED THAT NO DOCUMENTATION ACCOMPANIED THE A&P BID TO INDICATE THAT IT HAD ADOPTED A TYPEWRITTEN SIGNATURE OR INTENDED TO BE BOUND THEREBY. IT WAS ALSO DISCERNED DURING EVALUATION THAT MOORE CONDITIONED ITS BID UPON RECEIPT OF TOTAL AWARD FOR ITEMS 1, 2 OR 3, AND 4, OR ITEM 1 ALONE.

AFTER BID EVALUATION, THE CONTRACTING OFFICER DETERMINED THAT AWARD OF ALTERNATE BID ITEM 3 WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT.

PRIOR TO AWARD, A&P AND DISPOSAL LODGED PROTESTS WITH THE DIRECTOR, PROCUREMENT POLICY, AGAINST ANY AWARD WHICH DID NOT REFLECT THE LOWEST PRICE COMBINATION CONTAINED IN THE BIDS OF THE TWO FIRMS. IN RESPONSE TO THE PROTEST, THE CONTRACTING OFFICER DECIDED THAT THE BID OF A&P SHOULD BE REJECTED AS NONRESPONSIVE PURSUANT TO ASPR 2-405(III) WHICH PROVIDES FOR THE WAIVER OF A LACK OF SIGNATURE 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 CONTRACTING OFFICER PROPOSED TO REJECT MOORE'S BID BECAUSE THE ALL-OR -NONE QUALIFICATION RESTRICTED THE GOVERNMENT'S OPTION TO MAKE MULTIPLE AWARDS, THEREBY PRECLUDING AWARD AT THE LOWEST COMBINED PRICES AND PREJUDICING DISPOSAL'S OPPORTUNITY TO RECEIVE AWARD OF ITEM 1. CONSEQUENTLY, AWARD TO DISPOSAL OF ITEMS 1, 3 AND 4 WAS RECOMMENDED.

BY LETTER DATED JUNE 29, 1972, THE DIRECTOR, PROCUREMENT POLICY, RESPONDED TO THE RECOMMENDATION OF THE CONTRACTING OFFICER. AFTER CONCURRING IN THE REJECTION OF THE A&P BID, IT WAS STATED RELEVANT TO THE RESPONSIVENESS OF MOORE'S BID:

"THIS HEADQUARTERS DOES NOT CONCUR WITH THE CONCLUSION OF THE CONTRACTING OFFICER IN HIS STATEMENT OF FACTS AND FINDINGS THAT 'MOORE SANITATION, INC., HAS ATTEMPTED TO CONDITION HIS BID IN SUCH A MANNER SO AS TO SEVERELY RESTRICT THE GOVERNMENT OPTIONS IN MAKING AN AWARD, THAT HIS BID BE CONSIDERED AS NON-RESPONSIVE AND AWARD BE MADE IN ITS ENTIRETY TO DISPOSAL SYSTEM, INC.' INSTEAD IT IS DIRECTED THAT THE AWARD BE MADE TO MOORE SANITATION, INC., AS THE LOW BIDDER ON AN AGGREGATE BASIS FOR THE FOLLOWING REASONS: THE EVALUATION FACTORS FOR AWARD AS AMENDED BY M01 72 JUN 10, STATED THAT TWO AWARDS MAY BE MADE AS A RESULT OF THIS SOLICITATION, ONE AWARD ON ITEM 1(DWG BERG-G-208); AND ONE AWARD IN ITEMS 2 OR 3 AND ITEM 4 (BERG-G-209). THIS, IN FACT, GAVE THE AIR FORCE TWO OPTIONS. THE FIRST OPTION BEING THAT ONE AWARD COULD BE MADE FOR ALL LINE ITEMS IN THE IFB, THE SECOND OPTION BEING THAT OF A SPLIT AWARD. ACCORDANCE WITH THE EVALUATION CRITERIA, MOORE SANITATION, INC. OPTED TO BID ON AN AGGREGATE BASIS TAKING THE RISK THAT SUCH A BID WOULD BE LOW. THE OTHER BIDDERS HAD THE SAME OPTION. THEREFORE WE SEE NO PREJUDICE TO OTHER BIDDERS AND NO DESTRUCTION OF THE INTEGRITY OF THE BIDDING PROCESS."

ACCORDINGLY, AWARD WAS MADE TO MOORE.

IN 34 COMP. GEN. 439 (1955) OUR OFFICE CONSIDERED A CASE SIMILAR TO THE IMMEDIATE CASE. IN THAT SITUATION, AS HERE, THE BID WAS COMPLETE AS TO PRICE AND THE NAME OF THE BIDDER AND THE SIGNATURE BOX CONTAINED THE TYPEWRITTEN NAME OF AN INDIVIDUAL AUTHORIZED TO SIGN THE BID, BUT WAS NOT MANUALLY SIGNED. OUR OFFICE HELD THAT THE FAILURE OF THE BIDDER TO SIGN THE BID WHICH BEARS HIS TYPEWRITTEN SIGNATURE, BUT IS NOT ACCOMPANIED BY DOCUMENTARY EVIDENCE INDICATING THAT THE TYPEWRITTEN SIGNATURE HAD BEEN ADOPTED OR AUTHORIZED, IS A SUBSTANTIVE DEFECT WHICH COULD NOT BE WAIVED AFTER OPENING OF THE BIDS. IN VIEW OF THAT HOLDING AND THE PROCUREMENT REGULATION QUOTED ABOVE, WHICH IS IN ACCORD WITH THE DECISIONS OF OUR OFFICE, THE A&P BID PROPERLY WAS REJECTED AS NONRESPONSIVE. SEE B-169837, MAY 27, 1970, AND CASES CITED THEREIN.

WITH RESPECT TO THE MOORE BID, WE OBSERVE THAT ASPR 2-404.5 PROVIDES:

"UNLESS THE INVITATION FOR BIDS SO PROVIDES, A BID IS NOT RENDERED NONRESPONSIVE BY THE FACT THAT THE BIDDER SPECIFIES THAT AWARD WILL BE ACCEPTED ONLY ON ALL, OR A SPECIFIED GROUP, OF THE ITEMS INCLUDED IN THE INVITATION FOR BIDS."

SINCE THE IFB DID NOT CONTAIN A PROVISION RESTRICTING ALL-OR-NONE BIDS, WE CONCUR WITH THE DIRECTOR, PROCUREMENT POLICY, THAT MOORE'S BID WAS RESPONSIVE AND PROPERLY ENTITLED TO AN AWARD.

ALTHOUGH YOU CONTEND THAT THE 10 DAYS PROVIDED FOR THE COMMENCEMENT OF PERFORMANCE OF THE CONTRACT WAS INADEQUATE, IT IS NOTED THAT YOU DID NOT OBJECT TO THE TIME PROVIDED PRIOR TO BIDDING. IN THAT CONNECTION, OUR OFFICE HAS HELD THAT A BIDDER WHO PARTICIPATES IN A PROCUREMENT WITHOUT OBJECTION THROUGH THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE CONDITIONS SET OUT IN THE INVITATION. B-173879, OCTOBER 1, 1971.

ACCORDINGLY, THE PROTEST IS DENIED.