B-180479, MAY 8, 1974

B-180479: May 8, 1974

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WHERE IFB REQUIRES THAT BIDS AND ACCOMPANYING DOCUMENTS SIGNED BY AN AGENT ARE TO BE ACCOMPANIED BY EVIDENCE OF HIS AUTHORITY. GAO HAS HELD THAT WHILE SUBMISSION OF PROOF OF AUTHORITY BEFORE OR AT BID OPENING IS ENCOURAGED TO AVOID CHALLENGES AND PROBLEMS OF PROOF. BID SIGNED BY AGENT ACTING WITHIN SCOPE OF HIS AUTHORITY WAS PROPERLY ACCEPTED WHERE PROOF OF AGENCY WAS SUBMITTED PRIOR TO AWARD. DACA01-74-B-0019 WAS ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT. WHERE SUCH PERSON IS SIGNING IN A REPRESENTATIVE CAPACITY (E.G. AN ATTORNEY-IN-FACT) BUT IS NOT A MEMBER OF THE FIRM. THE SIX BIDS TIMELY RECEIVED WERE OPENED. THE LOW BID WAS SUBMITTED BY CONSTRUCCIONES WERL. WAS SIGNED BY DONALD P.

B-180479, MAY 8, 1974

WHERE IFB REQUIRES THAT BIDS AND ACCOMPANYING DOCUMENTS SIGNED BY AN AGENT ARE TO BE ACCOMPANIED BY EVIDENCE OF HIS AUTHORITY, UNLESS SUCH EVIDENCE HAS BEEN PREVIOUSLY FURNISHED, GAO HAS HELD THAT WHILE SUBMISSION OF PROOF OF AUTHORITY BEFORE OR AT BID OPENING IS ENCOURAGED TO AVOID CHALLENGES AND PROBLEMS OF PROOF, GAO DOES NOT REGARD FURNISHING OF SUCH PROOF AFTER BID OPENING AS LEGALLY PROHIBITED. 49 COMP. GEN. 527 (1970). ACCORDINGLY, BID SIGNED BY AGENT ACTING WITHIN SCOPE OF HIS AUTHORITY WAS PROPERLY ACCEPTED WHERE PROOF OF AGENCY WAS SUBMITTED PRIOR TO AWARD.

TO FORTEC CONSTRUCTORS; CONSTRUCCIONES WERL, INC.:

ON NOVEMBER 2, 1973, INVITATION FOR BIDS (IFB) NO. DACA01-74-B-0019 WAS ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, MOBILE, ALABAMA, FOR THE PURPOSE OF CONSTRUCTION OF OFFICERS' QUARTERS AT FORT CAMPBELL, KENTUCKY. THE SOLICITATION REQUIRED THE SUBMITTAL OF A BID BOND (STANDARD FORM 24) WHICH PROVIDED IN PERTINENT PART:

"THE FULL LEGAL NAME AND BUSINESS ADDRESS OF THE PRINCIPAL SHALL BE INSERTED IN THE SPACE DESIGNATED 'PRINCIPAL' ON THE FACE OF THIS FORM. THE BOND SHALL BE SIGNED BY AN AUTHORIZED PERSON. WHERE SUCH PERSON IS SIGNING IN A REPRESENTATIVE CAPACITY (E.G. AN ATTORNEY-IN-FACT) BUT IS NOT A MEMBER OF THE FIRM, PARTNERSHIP, OR JOINT VENTURE, OR AN OFFICER OF THE CORPORATION INVOLVED, EVIDENCE OF HIS AUTHORITY MUST BE FURNISHED."

ON DECEMBER 5, 1973, THE DATE SPECIFIED, THE SIX BIDS TIMELY RECEIVED WERE OPENED. THE LOW BID WAS SUBMITTED BY CONSTRUCCIONES WERL, INC. (WERL), AND WAS SIGNED BY DONALD P. LEGGETT AS ITS VICE-PRESIDENT. THE SECOND LOW BID WAS SUBMITTED BY FORTEC CONSTRUCTORS (FORTEC).

SHORTLY AFTER BID OPENING, FORTEC PROTESTED THE SMALL BUSINESS SIZE STATUS OF WERL TO THE SMALL BUSINESS ADMINISTRATION (SBA). WERL RESPONDED TO THE SBA PROTEST AND RECEIVED A FAVORABLE RULING FROM THE SBA ATLANTA REGIONAL OFFICE. FORTEC THEN APPEALED THIS ISSUE TO THE WASHINGTON OFFICE OF THE SBA AND AGAIN WERL PREVAILED.

FORTEC NOW PROTESTS TO OUR OFFICE CONTENDING THAT THE BID SUBMITTED BY WERL WAS NONRESPONSIVE DUE TO ITS FAILURE TO INCLUDE EVIDENCE AS TO THE AGENCY RELATIONSHIP BETWEEN WERL AND MR. LEGGETT. FORTEC CONTENDS THAT LEGGETT DID NOT HAVE THE AUTHORITY TO EXECUTE BID BONDS AND THAT EVEN IF HE DID, EVIDENCE OF THIS AUTHORITY WAS NOT INCLUDED WITH THE BID.

THE ARMY HAS REPORTED THAT EVIDENCE OF MR. LEGGETT'S AUTHORITY WAS SUBMITTED AFTER BID OPENING BUT PRIOR TO AWARD. THAT AUTHORITY SPECIFICALLY ALLOWED MR. LEGGETT TO EXECUTE BIDS FOR CONSTRUCTION PROJECTS IN THE CONTINENTAL UNITED STATES AND TO BIND THE CORPORATION TO PERFORMANCE UNDER THE TERMS, CONDITIONS AND PROVISIONS OF APPROVED BIDS. IN OUR VIEW, THIS GRANT OF AUTHORITY CAN RIGHTFULLY BE CONSTRUED TO INCLUDE THE EXECUTION OF BID BONDS, SINCE IT IS RECOGNIZED THAT A BID BOND MUST BE FURNISHED WITH THE BID. THEREFORE, WE FIND NO ABSENCE OF AUTHORITY ON THE PART OF MR. LEGGETT TO BIND WERL UNDER A BID BOND.

AS CONCERNS THE SUBMITTAL OF PROOF OF AGENCY SUBSEQUENT TO BID OPENING, WE FIND NO BASIS TO QUESTION THE AWARD. TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS, AND BIDS SHOULD BE FILLED OUT, EXECUTED AND SUBMITTED IN ACCORDANCE WITH THE INSTRUCTIONS WHICH ARE CONTAINED IN THE IFB. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-301(A) AND (C). HOWEVER, WITH RESPECT TO THE REQUIREMENTS HERE INVOLVED, THE RULE FOLLOWED BY OUR OFFICE IS THAT WHILE SUBMISSION OF PROOF OF BIDDING AUTHORITY BEFORE OR AT THE TIME OF BID OPENING IS ENCOURAGED TO AVOID CHALLENGES FROM OTHER BIDDERS AND PROBLEMS OF PROOF BEFORE THE CONTRACTING OFFICER, WE DO NOT REGARD THE FURNISHING OF SUCH PROOF AFTER BID OPENING AS LEGALLY PROHIBITED. 49 COMP. GEN. 527, 529-530 (1970); B-179589, JANUARY 23, 1974; B-176493, OCTOBER 12, 1972.

THE FINAL QUESTION RAISED BY FORTEC IS THE AMBIGUITY BETWEEN MR. LEGGETT'S ACTUAL POSITION (SPECIAL AGENT) WITH WERL AND HIS SIGNATURE AS "VICE-PRESIDENT." WE DO NOT, HOWEVER, FIND THIS CONFLICT TO BE OF SIGNIFICANCE. SINCE WE HAVE PREVIOUSLY DETERMINED THAT MR. LEGGETT WAS POSSESSED OF THE PROPER AUTHORITY TO EXECUTE DOCUMENTS OF THIS NATURE, AND WE CAN FIND NO CONTRA INTENT ON THE FACE OF THE INSTRUMENT, THE INCLUSION OF THE IMPROPER TITLE HAD NO LIMITING EFFECT ON THE AUTHORITY BESTOWED UPON MR. LEGGETT. THEREFORE, WE VIEW THE INCLUSION OF THE INCORRECT TYPEWRITTEN TITLE AS BEING A MERE INFORMALITY AND WAIVABLE UNDER ASPR 2- 405.

THEREFORE, SINCE MR. LEGGETT DID POSSESS THE REQUISITE AUTHORITY TO EXECUTE BID BONDS AND OTHER DOCUMENTS AND EVIDENCE OF THIS AUTHORITY WAS FURNISHED PRIOR TO AWARD, THE BID OF WERL WAS PROPERLY ACCEPTED FOR AWARD.

ACCORDINGLY, THE PROTEST IS DENIED.