B-182531, FEB 4, 1975

B-182531: Feb 4, 1975

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BID IS PROPERLY FOR ACCEPTANCE. 2. IS BINDING ONLY ON INDIVIDUAL AND NOT ON FIRM IS WITHOUT MERIT SINCE BID WAS CLEARLY SUBMITTED ON BEHALF OF FIRM. 3. ALLEGATION THAT CONFLICT OF INTEREST MAY EXIST ON PART OF AGENT SIGNING BID ON BEHALF OF FIRM WAS NOT RAISED WITHIN 5 DAYS AFTER FACTS IN SUPPORT OF CONTENTION WERE KNOWN AND IS. N00383-75-B-0195 WAS ISSUED ON SEPTEMBER 13. TWO BIDS WERE OPENED ON THE OCTOBER 16 BID OPENING DATE. IT IS BELIEVED THAT THE PURPORTED AGENCY RELATIONSHIP BETWEEN THE PARTY WHO SIGNED THE BID AND CLINE HAS BEEN INSUFFICIENTLY PROVED. IT IS BELIEVED THAT AFFIDAVITS SHOULD BE OBTAINED FROM BOTH PARTIES STATING THAT THE AGENCY RELATIONSHIP DID EXIST PRIOR TO BID OPENING AS IT IS ALLEGED THAT A LETTER GRANTING SUCH POWERS.

B-182531, FEB 4, 1975

1. PROOF OF AGENCY RELATIONSHIP BETWEEN FIRM AND PERSON SUBMITTING BID ON BEHALF OF FIRM MAY BE FURNISHED AFTER BID OPENING, AND WHERE PROOF ESTABLISHES THAT RELATIONSHIP EXISTED PRIOR TO BID OPENING, BID IS PROPERLY FOR ACCEPTANCE. 2. CONTENTION THAT BID OF FIRM SIGNED BY AGENT FOR "GERALD CLINE - PRES." IS BINDING ONLY ON INDIVIDUAL AND NOT ON FIRM IS WITHOUT MERIT SINCE BID WAS CLEARLY SUBMITTED ON BEHALF OF FIRM. 3. ALLEGATION THAT CONFLICT OF INTEREST MAY EXIST ON PART OF AGENT SIGNING BID ON BEHALF OF FIRM WAS NOT RAISED WITHIN 5 DAYS AFTER FACTS IN SUPPORT OF CONTENTION WERE KNOWN AND IS, THEREFORE, UNTIMELY AND NOT FOR CONSIDERATION.

SWITLIK PARACHUTE COMPANY, INC.:

INVITATION FOR BIDS NO. N00383-75-B-0195 WAS ISSUED ON SEPTEMBER 13, 1974, BY THE NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, FOR THE PROCUREMENT OF COVERALL ASSEMBLIES. TWO BIDS WERE OPENED ON THE OCTOBER 16 BID OPENING DATE.

SWITLIK PARACHUTE COMPANY, INC. (SWITLIK), THE SECOND LOW BIDDER ON THE PROCUREMENT, THROUGH COUNSEL, PROTESTS AGAINST ANY AWARD TO THE LOW BIDDER, CLINE & ASSOCIATES, INC. (CLINE), FOR VARIOUS REASONS. FIRST, IT IS BELIEVED THAT THE PURPORTED AGENCY RELATIONSHIP BETWEEN THE PARTY WHO SIGNED THE BID AND CLINE HAS BEEN INSUFFICIENTLY PROVED. IT IS BELIEVED THAT AFFIDAVITS SHOULD BE OBTAINED FROM BOTH PARTIES STATING THAT THE AGENCY RELATIONSHIP DID EXIST PRIOR TO BID OPENING AS IT IS ALLEGED THAT A LETTER GRANTING SUCH POWERS, SUBMITTED TO THE CONTRACTING ACTIVITY AFTER BID OPENING, COULD HAVE BEEN PREDATED TO SHOW A PREBID OPENING DATE. SECONDLY, IT IS BELIEVED THAT, INASMUCH AS THE BID WAS SIGNED BY "ANTHONY KACZOR FOR - GERALD CLINE - PRES.," IT WAS SIGNED ON BEHALF OF THE PRESIDENT INDIVIDUALLY AND WAS, CONSEQUENTLY, NOT BINDING ON THE CORPORATION.

THE THIRD BASIS FOR OBJECTING TO AN AWARD TO CLINE CONCERNS AN ALLEGATION OF A POSSIBLE CONFLICT OF INTEREST. THE AGENT FOR CLINE IS ALLEGEDLY AN EMPLOYEE OF A BID ABSTRACTING SERVICE WHICH IS AVAILABLE TO ALL BIDDERS AND WHICH ON OCCASION HAS BEEN UTILIZED BY SWITLIK. THUS, IT IS CONTENDED THAT THERE EXISTS A POSSIBLE CONFLICT OF INTEREST BECAUSE THAT SERVICE ACTS ON BEHALF OF MULTIPLE BIDDERS IN SUPPLYING ABSTRACTS ON THE SAME PROCUREMENT. THEREFORE, IT IS CONTENDED THAT STRICT PROOF OF THE EXISTENCE OF THE AGENCY RELATIONSHIP PRIOR TO BID OPENING IS REQUIRED. FINALLY, IT IS CONTENDED THAT, BASED ON THE DOCUMENTATION FURNISHED BY THE NAVY TO OUR OFFICE IN A REPORT ON THE PROTEST AND FORWARDED TO SWITLIK FOR COMMENT, THE CLINE BID IS NONRESPONSIVE SINCE THE CLINE BID PRICES WERE NOT SUBMITTED WITH THE BID.

WITH RESPECT TO THE FIRST CONTENTION, WE HAVE HELD THAT IT IS PERMISSIBLE TO FURNISH PROOF OF AN AGENCY RELATIONSHIP AFTER BID OPENING AND THAT A FAILURE TO FURNISH SUCH INFORMATION AT BID OPENING WILL NOT RENDER A BID NONRESPONSIVE. WE TOOK THIS POSITION, IN MODIFYING OUR DECISION AT 48 COMP. GEN. 369 (1968) CITED BY SWITLIK, IN PART, BECAUSE SHOULD A PRINCIPAL EVER DISAVOW THE POWERS OF A PURPORTED AGENT THE GOVERNMENT WOULD HAVE A CAUSE OF ACTION AGAINST THE LATTER PERSON. MATTER OF SPECTROLAB, A DIVISION OF TEXTRON, INC., B-180008, JUNE 12, 1974. IN LIKE MANNER, THE PROBABILITY THAT A PARTY WOULD TAKE THE RISKS TO ACT AS AN AGENT BY ORIGINALLY SUBMITTING THE BID WHEN NO SUCH RELATIONSHIP EXISTED SEEMS HIGHLY IMPROBABLE, AND IT CAN BE EXPECTED THAT ANY FALSE DISAVOWALS OF AN AGENT'S AUTHORITY WOULD NOT GO UNCHALLENGED BY THE AGENT. SWITLIK HAS PRESENTED NO INFORMATION UPON WHICH OUR OFFICE COULD SUPPORT A FINDING THAT THE EVIDENCE OF AGENCY SUBMITTED BY CLINE IS SUBJECT TO QUESTION. THE SECOND CONTENTION IS WITHOUT MERIT. THE BIDDER WAS IDENTIFIED AS "CLINE & ASSOC."; THE NAME AND TITLE OF THE PERSON AUTHORIZED TO SIGN THE BID WAS IDENTIFIED AS "ANTHONY KACZOR FOR - GERALD CLINE - PRES."; AND THE BID WAS SIGNED BY MR. KACZOR FOR GERALD CLINE. THE BID WAS CLEARLY SUBMITTED NOT ON BEHALF OF AN INDIVIDUAL BUT ON BEHALF OF A FIRM BY AN INDIVIDUAL (THROUGH AN AGENT) IN HIS CAPACITY AS PRESIDENT OF THE FIRM THAT WOULD RECEIVE THE CONTRACT.

THE ISSUE REGARDING THE POSSIBLE CONFLICT OF INTEREST, WE BELIEVE, IS UNTIMELY RAISED AND WILL NOT BE CONSIDERED. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. PART 20 (1974), STATES IN PERTINENT PART, THAT "*** BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER."

THE RELATIONSHIP BETWEEN THE AGENT AND THE BID ABSTRACTING SERVICE WAS NOTED IN A LETTER TO US FROM SWITLIK'S ATTORNEY DATED NOVEMBER 5, 1974, BUT THE ISSUE OF A POSSIBLE CONFLICT IN INTEREST WAS FIRST RAISED IN A LETTER OF JANUARY 8, 1975.

AS TO THE FINAL CONTENTION, WE HAVE CONFIRMED FROM THE BID SUBMITTED BY CLINE THAT PRICES WERE SUBMITTED WITH THE BID. ONLY THE SIGNATURE PAGE OF THE CLINE BID WAS SUBMITTED WITH THE NAVY REPORT AS THE ONLY ISSUE IN QUESTION AT THAT TIME DEALT WITH THE AGENCY RELATIONSHIP.

ACCORDINGLY, THE PROTEST IS DENIED.