B-177407, FEB 26, 1973

B-177407: Feb 26, 1973

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DOES NOT BELIEVE THAT BID REJECTION WAS REQUIRED. THE SIGNATURE OF THE ATTORNEY IN-FACT APPEARING ON THE ACKNOWLEDGEMENT ACCOMPANYING THE BOND MIGHT HAVE BEEN SUFFICIENT TO SUPPORT THE BOND. A BOND SEALED AND DELIVERED TO THE OBLIGEE IS SUFFICIENT WITHOUT THE SIGNATURE OF THE OBLIGOR. THE AMBIGUITY AS TO THE INTENDED BIDDER COULD HAVE BEEN RESOLVED BY CONSIDERING CRAFT AS THE BIDDER IN VIEW OF ALL THE CIRCUMSTANCES. GAO WILL NOT RECOMMEND CORRECTIVE ACTION. THE BIDDER'S NAME IS STATED AS "CRAFT COOLING/VB CONSTRUCTION". IS SHOWN. THE NAME OF THE BIDDER IS "CRAFT COOLING/BLW CONSTRUCTION CORP.". THE CONTRACTING OFFICER REFERRED THE MATTER TO LEGAL COUNSEL WHO CONCLUDED THAT THE BID WAS FATALLY DEFECTIVE AND SHOULD BE REJECTED AS NONRESPONSIVE.

B-177407, FEB 26, 1973

BID PROTEST - AMBIGUOUS BID - UNSIGNED BOND DENIAL OF PROTEST BY CRAFT COOLING CORP. AGAINST THE REJECTION OF ITS LOW BID UNDER AN IFB ISSUED BY THE CORPS OF ENGINEERS FOR ENVIRONMENTAL REHABILITATION OF A U.S. POSTAL FACILITY. THE AMBIGUITIES IN THE BID AND THE LACK OF A SIGNATURE ON THE BID BOND DID CREATE UNNECESSARY CONFUSION, BUT THE COMP. GEN. DOES NOT BELIEVE THAT BID REJECTION WAS REQUIRED. THE SIGNATURE OF THE ATTORNEY IN-FACT APPEARING ON THE ACKNOWLEDGEMENT ACCOMPANYING THE BOND MIGHT HAVE BEEN SUFFICIENT TO SUPPORT THE BOND, AND IN ANY EVENT, A BOND SEALED AND DELIVERED TO THE OBLIGEE IS SUFFICIENT WITHOUT THE SIGNATURE OF THE OBLIGOR. FURTHER, THE AMBIGUITY AS TO THE INTENDED BIDDER COULD HAVE BEEN RESOLVED BY CONSIDERING CRAFT AS THE BIDDER IN VIEW OF ALL THE CIRCUMSTANCES. HOWEVER, SINCE THE CONTRACTING OFFICER ACTED IN GOOD FAITH, AND CONSTRUCTION WORK HAS ALREADY COMMENCED, GAO WILL NOT RECOMMEND CORRECTIVE ACTION.

TO CRAFT COOLING CORP.:

WE REFER TO YOUR LETTER OF NOVEMBER 3, 1972, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR LOW BID FOR ENVIRONMENTAL REHABILITATION OF A UNITED STATES POSTAL FACILITY UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS (IFB) NO. DACW51-73-B-0025.

FROM AN EXAMINATION OF THE BID DOCUMENTS IT APPEARS THAT CRAFT IDENTIFIED ITSELF DIFFERENTLY IN THE BID. ON THE FACE OF THE BID FORM (STANDARD FORM 21), THE BIDDER'S NAME IS STATED AS "CRAFT COOLING/VB CONSTRUCTION"; ON THE REVERSE THEREOF, IN THE SIGNATURE SECTION, THE NAME "CRAFT COOLING CORP." IS SHOWN. ON THE PAGE ENTITLED "PERFORMANCE OF WORK BY CONTRACTOR" AND ON THE REPRESENTATIONS AND CERTIFICATIONS PAGE OF THE IFB, THE NAME OF THE BIDDER IS "CRAFT COOLING/BLW CONSTRUCTION CORP." AND "CRAFT COOLING/BLW CONSTRUCTION CO.," RESPECTIVELY. ALSO, THE BIDDER FAILED TO INDICATE ON THE BID, AS REQUESTED, THE TYPE OF ITS ORGANIZATION. THE BID BOND ACCOMPANYING THE BID SHOWS THE PRINCIPAL AS "CRAFT COOLING CORP.," A CORPORATION, BUT DOES NOT CONTAIN THE SIGNATURE OF THE SURETY'S AUTHORIZED AGENT.

IN VIEW OF THESE DISCREPANCIES AND THE BID BOND DEFECT, THE CONTRACTING OFFICER REFERRED THE MATTER TO LEGAL COUNSEL WHO CONCLUDED THAT THE BID WAS FATALLY DEFECTIVE AND SHOULD BE REJECTED AS NONRESPONSIVE. WE CAN UNDERSTAND HOW THE AMBIGUITIES IN THE BID AND THE ABSENCE OF A SIGNATURE ON THE BID BOND LED COUNSEL TO CONCLUDE THAT THE BID SHOULD BE REJECTED. FROM OUR ANALYSIS OF THE SITUATION, HOWEVER, WE DO NOT BELIEVE THAT BID REJECTION WAS REQUIRED. ALTHOUGH THERE WAS AN ABSENCE OF A MANUAL SIGNATURE ON THE BID BOND, THERE WAS TYPEWRITTEN IN THE SIGNATURE BLOCK PROVIDED FOR THE SURETY THE NAME AND ADDRESS OF THE SURETY AND "GEORGE F. BRENNER ATTORNEY-IN-FACT." FURTHER, THE CORPORATE SEAL OF THE SURETY WAS IMPRESSED IN THE PLACE PROVIDED AND THERE WAS AN ACCOMPANYING NOTARIZED ACKNOWLEDGMENT STATING THAT GEORGE F. BRENNER PERSONALLY APPEARED BEFORE THE NOTARY AND SIGNED HIS NAME AS ATTORNEY-IN-FACT. THE NAME "GEORGE F. BRENNER" WAS AFFIXED TO THE NOTARIZED ACKNOWLEDGMENT BY A SIGNATURE STAMP IN THE SPACE PROVIDED FOR THE DEPENDENT'S NAME. IN THE CIRCUMSTANCES, THE SIGNATURE OF THE ATTORNEY-IN-FACT APPEARING ON THE ACKNOWLEDGMENT ACCOMPANYING THE BOND MIGHT BE SUFFICIENT TO SUPPORT THE BOND. IN ANY EVENT, A BOND SEALED AND DELIVERED TO THE OBLIGEE IS SUFFICIENT WITHOUT THE SIGNATURE OF THE OBLIGOR. 11 C.J.S., BONDS SECTION 16. THUS, THE VALIDITY OF THE BOND WAS NOT AFFECTED BY THE ABSENCE OF THE SIGNATURE OF THE ATTORNEY-IN-FACT ON THE BOND.

FURTHER, ALTHOUGH THE INFORMATION CONTAINED IN THE BID MAY HAVE CREATED AN AMBIGUITY AS TO THE INTENDED BIDDER, WE BELIEVE THAT SUCH AMBIGUITY SHOULD HAVE BEEN RESOLVED BY CONSIDERING CRAFT COOLING CORP. AS THE BIDDER IN VIEW OF THE NAMED PRINCIPAL ON THE BID BOND AND THE FACT THAT THE NAMES IN THE SIGNATURE BOXES ON THE BID FORM AND THE BOND WERE CRAFT COOLING CORP.

HOWEVER, THERE DOES NOT APPEAR TO BE ANY ABSENCE OF GOOD FAITH ON THE PART OF THE CONTRACTING OFFICER SINCE HE RECOGNIZED THE PROBLEM CREATED BY THE BID DOCUMENTS AND SOUGHT AND RELIED UPON LEGAL GUIDANCE. IN THE CIRCUMSTANCES AND CONSIDERING THAT AN AWARD HAS BEEN MADE AND THE CONSTRUCTION WORK COMMENCED, WE WILL NOT RECOMMEND CORRECTIVE ACTION.