Matter of: Johnny F. Smith Truck and Dragline Service, Inc. File: B-252136 Date: June 3, 1993

Matter of: Johnny F. Smith Truck and Dragline Service, Inc. File: B-252136 Date: June 3, 1993

PROCUREMENT Sealed Bidding Bids Responsiveness Signatures Omission A bidder's failure to sign its bid may be waived as a minor informality when the bid is accompanied by a document bearing the bidder's signature, since the signature demonstrates the bidder's intent to be bound.

Attorneys

DECISION Johnny F. Smith Truck and Dragline Service, Inc. protests the award of a contract to Silver Eagle, Ltd. under invitation for bids (IFB) No. DACW17-93-B-0041, issued by the U.S. Army Corps of Engineers, Jacksonville District, for the pickup and disposal of salvageable materials from debris piles generated as a result of the Hurricane Andrew recovery effort in Dade County, Florida.[1] The protester argues that Silver Eagle's bid should have been rejected as nonresponsive.

We deny the protest.

The IFB was issued on December 22, 1992, with a closing date of December 31; amendment No. 0001 was issued on December 28 to announce an optional site visit for prospective bidders. Thirteen bids were received and opened; Silver Eagle submitted the low bid of $96,000, and the protester submitted the third-low bid of $199,977.[2] After requesting and receiving a bid verification from Silver Eagle, and after confirming its corporate status with the state of its incorporation, the contracting officer determined Silver Eagle to be a responsive, responsible bidder and awarded it the contract on January 7, 1993. On January 8, Smith filed an agency- level protest of the award, arguing that various discrepancies in Silver Eagle's bid should have led the agency to reject it as nonresponsive. The agency denied the protest on January 20; this protest followed. The agency subsequently issued a notice to proceed with performance.

All of Silver Eagle's bid documents were submitted in a sealed envelope with the solicitation number written on its front. The bid documents included the standard form (SF) 33, "Solicitation, Offer, and Award." This form was blank: the name of the offeror did not appear, amendment No. 0001 was not acknowledged, and the form was not signed. Section K of the IFB required bidders to complete certain representations and certifications. Section K.6 of Silver Eagle's bid, the Certificate of Procurement Integrity (CPI), contained the signature of William C. Starr on the line to be signed by the officer or employee responsible for the bid. Section K.10 of the form, the Certificate of Authority to Bind the Corporation (CABC), also contained the signature of William C. Starr, and Silver Eagle's corporate seal was affixed. Finally, in section K.14 of the form, Silver Eagle extended the bid acceptance period to 60 calendar days with a hand-printed entry. The agency concluded, based on a review of these documents, that there was sufficient evidence of Silver Eagle's intent to be bound by the bid and thus that the bid was responsive.[3]

Smith argues that Silver Eagle's bid should have been rejected as nonresponsive because Silver Eagle failed to sign its bid.[4] Smith asserts that the signatures contained in Silver Eagle's CPI and CABC do not demonstrate its intent to be bound because both of those certifications were improperly completed. The agency contends that Silver Eagle adequately demonstrated an intent to be bound by including the signed CPI and the signed CABC in the bid envelope; additionally, the
bidder explicitly filled in its bid acceptance period.

As a general rule, an unsigned bid must be rejected as nonresponsive
because without an appropriate signature, the bidder would not be bound
should the government accept the bid. JRW Enters., Inc., B-238236, May 11,
1990, 90-1 CPD Para. 464. There is an exception to this general rule
allowing for waiver of the failure to sign the bid as a minor infor-
mality when the bid is accompanied by other documentation signed by the
bidder which clearly evidences the bidder's intent to be bound by the bid
as submitted by referring to and identifying the bid itself. FAR Sec.
14.405(c)(1); Wilton Corp., 64 Comp.Gen. 233 (1985), 85-1 CPD Para. 128.

In our view, the signed representations and certifications form, which
was included in the bid envelope as part of the unsigned bid, sufficiently
demonstrated Silver Eagle's intent to be bound by its bid, and accordingly
permits its acceptance. FAR Sec. 14.405(c)(1); JRW Enters., Inc., supra.
We view a bidder's signature as the prime consideration for determining
the bidder's intent to be bound; the fact that the signature appears in
other than the usual location does not mean that the bidder is any less
committed to the provisions of the solicitation. See, e.g., Wilton Corp.,
supra (where an unsigned bid was accepted because it accompanied a signed
amendment); Micon Corp., B-249231, Oct. 28, 1992, 92-2 CPD Para. 293
(where an unsigned bid was accepted because it accompanied a properly
executed bid bond). In fact, a signed CPI is sufficient to show a bidder's
intent to be bound by its bid. JRW Enters., Inc., supra.

Silver Eagle's CPI contained the signature of William C. Starr on the
line reserved for the signature of the officer or employee responsible for
the offer, and the word "NONE" was hand-written on the line for the
reporting of violations of the Office of Federal Procurement Policy (OFPP)
Act.[5] The remainder of the CPI was blank. Smith argues that these
omissions prevent the agency from properly relying on the CPI's signature
to determine the bidder's intent to be bound to its bid. We disagree.

As noted above, both the CPI and the CABC were signed by an authorized
representative of Silver Eagle; thus, even without regard to the agency's
reliance on the signature in the CPI, the awardee's signature on the CABC
by itself is sufficient evidence of its commitment to the bid.[6] In any
event, we think the signed CPI is sufficient to show Silver Eagle's intent
to be bound to its bid. The signed CPI was submitted to the agency on
pages K-3 through K-5 of the bid package; all of the bid documents were
contained in a sealed envelope with the solicitation number written on its
front. These circumstances are sufficient to clearly identify the
signature on the CPI with this particular IFB notwithstanding the CPI's
remaining omissions.[7]

The protest is denied.

1. The solicitation was issued under the auspices of the Federal Emergency Management Agency.

2. The second-low bid, for $163,000, was rejected as nonresponsive.

3. Pursuant to Federal Acquisition Regulation (FAR) Sec. 14.405(c), the contracting officer allowed Silver Eagle to sign its bid after bid opening, on January 5. The bidder was also allowed to fill in the remainder of its representations and certifications.

4. In its initial protest, Smith complained that Silver Eagle's failure to acknowledge amendment No. 0001 rendered its bid nonresponsive. The agency in its report responded to this issue, and Smith in its comments did not rebut the agency's response. We consider this issue to be abandoned. See TM Sys., Inc., B-228220, Dec. 10, 1987, 87-2 CPD Para. 573.

5. The CPI requirement implements several provisions of the OFPP Act, 41 U.S.C. Sec. 423 (1988 and Supp. III 1991). The OFPP Act prohibits activities involving soliciting or discussing post-government employment, offering or accepting a gratuity, and soliciting or disclosing proprietary or source selection information.

6. To the extent Smith argues that errors contained in the CABC rendered Silver Eagle's bid nonresponsive, we note that completion of such a certification concerns a matter of responsibility which may be corrected any time before contract award. Nomura Enters. Inc.--Recon., B-244993.2; B-245521.2, Oct. 9, 1991, 91-2 CPD Para. 322.

7. For the same reasons, the omissions in the CPI did not render Silver Eagle's bid nonresponsive on the basis of the CPI itself. Various omissions in a CPI are waivable as long as the certificate is sufficiently identified with the particular IFB. See, e.g., Woodington Corp., B-244579.2, Oct. 29, 1991, 91-2 CPD Para. 393.