B-166190, MAY 8, 1969

B-166190, MAY 8, 1969

TO INTERSTATE MANUFACTURING COMPANY:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER, DATED APRIL 14, 1969, IN WHICH YOU HAVE REQUESTED US TO RECONSIDER AND REVERSE OUR DECISION OF MARCH 25, 1969, DENYING YOUR PROTEST AGAINST AWARD TO TRENTON TEXTILE ENGINEERING AND MANUFACTURING COMPANY, INC., UNDER INVITATION FOR BIDS (IFB) NO. DSA 100-69-B-1145, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

TRENTON TEXTILE FAILED TO SIGN ITS BID AS REQUIRED BY SOLICITATION INSTRUCTION NO. 2 (B); HOWEVER, WE HELD THAT THE COMPANY'S BID COULD BE CONSIDERED FOR AWARD PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 (III) (B), QUOTED AS FOLLOWS:

"/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; * * *.' WE NOTED THAT THE PRESIDENT OF THE COMPANY, MARIO D ANTONIO, WAS IDENTIFIED IN THE COMPANY'S OFFER AS THE CORPORATE OFFICIAL AUTHORIZED TO SIGN ITS BID AND THAT HE HAD SIGNED THE ENVELOPE CONTAINING THE BID AS WITNESSED BY THE PROCUREMENT SERVICES REPRESENTATIVE AT THE TIME OF PERSONALLY DELIVERING IT TO THE PROCURING ACTIVITY. WE HELD THESE FACTS CONSTITUTED ADEQUATE EVIDENCE TO PRECLUDE ANY POSSIBILITY OF THE CORPORATION BEING ABLE TO AVOID LIABILITY ON THE CONTRACT CONSUMATED BY ACCEPTANCE OF ITS BID AND THAT UNDER THESE CIRCUMSTANCES HIS SIGNATURE ON THE ENVELOPE WAS SUFFICIENT DOCUMENTARY EVIDENCE UNDER THE CITED REGULATION TO ALLOW CONSIDERATION OF THE COMPANY'S BID.

WITH RESPECT TO THE RECENT RULING OF THE COURT OF APPEALS IN SUPERIOR OIL COMPANY ET AL. V UDALL AND UNION OIL COMPANY OF CALIFORNIA, C.A.D.C. NOS. 22,192 AND 22,194, CONCERNING THE EFFECT OF THE UNION OIL COMPANY'S FAILURE TO SIGN ITS BID, WE HELD THE CASE WAS INAPPOSITE TO THE CIRCUMSTANCES OF THE SUBJECT PROTEST BECAUSE THE INTERIOR DEPARTMENT REGULATION GOVERNING THE PROCUREMENT DID NOT PERMIT AN ANALYSIS OF AVAILABLE DOCUMENTARY EVIDENCE TO ASCERTAIN WHETHER UNION OIL NEVERTHELESS INTENDED TO SUBMIT A BINDING BID, UNLIKE THE PROCEDURE EXPRESSLY AUTHORIZED BY ASPR 2-405 (III) (B).

YOU CONTEND OUR DECISION WAS ERRONEOUS FOR THE FOLLOWING REASONS: (1) TRENTON TEXTILE'S FAILURE TO SIGN ITS BID VIOLATED SOLICITATION INSTRUCTIONS AND CONDITIONS NO. 2B, THEREBY PREVENTING CONSIDERATION OF ITS BID FOR AWARD; (2) MR. D-ANTONIO'S SIGNATURE ON THE BID ENVELOPE EVIDENCED HAND DELIVERY ONLY, HAD NO BEARING ON THE COMPANY'S INTENTION OF SUBMITTING A FIRM BID AND IS NOT EQUIVALENT TO THE EXAMPLES LISTED IN THE CITED REGULATION WHERE FAILURE TO SIGN A BID MAY BE EXCUSED; (3) OUR DECISION DISREGARDS "CONCERN FOR THE SANCTITY OF THE BIDDING REQUIREMENTS AND PROCEDURE" , AS EXPRESSED BY THE COURT IN THE UDALL CASE, CITED SUPRA, AND CALLS INTO QUESTION THE "INTEGRITY OF FEDERAL BIDDING.'

WITH RESPECT TO YOUR FIRST COMMENT WE CANNOT CONSIDER THE FAILURE TO COMPLY WITH PROVISION NO. 2 (B) AS SUFFICIENT GROUND, IN ITSELF, FOR REJECTING CONSIDERATION OF TRENTON TEXTILE'S BID IN THE MANNER YOU APPARENTLY SUGGEST, SINCE ASPR 2-405 (III) (B) PERMITS CONSIDERATION OF AN UNSIGNED BID FOR AWARD UNDER THE CRITERIA SET FORTH THEREIN.

YOU CONTEND THAT MR. D-ANTONIO'S SIGNATURE WAS NOT SUFFICIENT TO ALLOW CONSIDERATION OF THE COMPANY'S OFFER, SINCE IT DID NOT CONSTITUTE EVIDENCE OF HIS COMPANY'S INTENTION OF SUBMITTING A BID. WE BELIEVE HIS SIGNATURE ON TRENTON TEXTILE'S BID ENVELOPE, WHICH ALSO CONTAINED THE NAME OF THE COMPANY, ITS ADDRESS AND THE INVITATION NUMBER, IN THE ATTENDANT CIRCUMSTANCES EVIDENCED AN INTENT TO SUBMIT A FIRM BID, IN THE SAME MANNER THAT A LETTER ACCOMPANYING THE BID, CONTAINING THE SAME DATA, WOULD HAVE ESTABLISHED SUCH AN INTENTION, AND THEREFORE CONSIDER SUCH SIGNATURE TO BE AN EXAMPLE OF THE KIND OF EVIDENCE PERMITTING CONSIDERATION OF THE COMPANY'S BID UNDER ASPR 2-405 (III) (B). WHILE YOU MAINTAIN HIS SIGNATURE EVIDENCED HAND DELIVERY ONLY, AND HAD NO BEARING UPON THE COMPANY'S INTENTION TO BE BOUND TO A CONTRACT, WE BELIEVE SUCH AN INTERPRETATION IMPROPERLY FAILS TO ACCORD ANY SIGNIFICANCE TO THE FACT THAT MR. D-ANTONIO WAS AUTHORIZED TO SIGN A BID FOR THE COMPANY, AND THEREFORE NECESSARILY TO SUBMIT A BINDING BID. WE SEE NO BASIS FOR SUBSTANTIAL QUESTION THAT HIS ACTIONS CLEARLY EVIDENCED HIS INTENTION TO DO SO, AND WE CONCLUDE THAT HIS PERSONAL SUBMISSION OF THE BID WAS BINDING UPON HIS COMPANY.

FOR THE REASONS STATED ABOVE AND IN OUR MARCH 25 DECISION WE CANNOT CONCLUDE THAT OUR HOLDING DISREGARDS ANY PROPER CONCERN FOR THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, OR IS NOT IN COMPLETE ACCORD WITH APPLICABLE PRECEDENTS AND THE PROCUREMENT REGULATIONS, AND THEREFORE MUST DENY YOUR REQUEST TO REVERSE OUR DECISION.