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B-160767, AUG. 17, 1967

B-160767 Aug 17, 1967
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BID WHICH WAS SIGNED BY ASSISTANT SALES MANAGER OF FIRM WHO HAD BEEN EXPRESSLY AUTHORIZED BY PRESIDENT TO EXECUTE BIDS AND CONTRACTS MAY BE REGARDED AS HAVING BEEN SIGNED BY INDIVIDUAL POSSESSING ACTUAL AUTHORITY TO SIGN UNDER GENERAL SERVICES PROCUREMENT REGULATIONS 5 2.301 SINCE ACTUAL AUTHORITY OF AGENT TO BIND PRINCIPAL MAY BE IMPLIED IN FACT THROUGH CIRCUMSTANTIAL EVIDENCE INCLUDING PREVIOUS CONDUCT OF PRINCIPAL. TO ARNDT AND DAY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 20. IN THIS REGARD THAT "ANY BID WHICH IS NOT SIGNED BY THE BIDDER OR HIS AUTHORIZED REPRESENTATIVE SHALL BE DISREGARDED.'. KENTILE'S LOW BID ON THE ITEMS IN QUESTION WAS SIGNED BY JACK CLEGG. CLEGG'S SIGNATURE WAS PROPERLY AFFIXED ON STANDARD FORM 33.

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B-160767, AUG. 17, 1967

BIDS - SIGNATURES DECISION ON BEHALF OF APACHE FLOOR COVERING COMPANY PROTESTING AWARD TO KENTILE FLOORS, INC., BY GSA. BID WHICH WAS SIGNED BY ASSISTANT SALES MANAGER OF FIRM WHO HAD BEEN EXPRESSLY AUTHORIZED BY PRESIDENT TO EXECUTE BIDS AND CONTRACTS MAY BE REGARDED AS HAVING BEEN SIGNED BY INDIVIDUAL POSSESSING ACTUAL AUTHORITY TO SIGN UNDER GENERAL SERVICES PROCUREMENT REGULATIONS 5 2.301 SINCE ACTUAL AUTHORITY OF AGENT TO BIND PRINCIPAL MAY BE IMPLIED IN FACT THROUGH CIRCUMSTANTIAL EVIDENCE INCLUDING PREVIOUS CONDUCT OF PRINCIPAL.

TO ARNDT AND DAY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1967, AND SUBSEQUENT CORRESPONDENCE, PROTESTING, ON BEHALF OF THE APACHE FLOOR COVERING COMPANY, AGAINST THE AWARD OF ITEMS NOS. 31-69 THROUGH 31-71 OF INVITATION FOR BIDS NO. FPNFH-Y-27420-A-9-7-66, TO KENTILE FLOORS, INCORPORATED (KENTILE). THE INVITATION, ISSUED BY THE GENERAL SERVICES ADMINISTRATION ON AUGUST 5, 1966, SOLICITED BIDS TO MEET THE REQUIREMENTS OF FEDERAL SUPPLY SCHEDULE GROUP 72, PART I - HOUSEHOLD FURNISHINGS; CLASS 7220-FLOOR COVERING, FOR THE PERIOD MARCH 15, 1967, THROUGH MARCH 14, 1968.

THE INVITATION DID NOT CONTAIN LANGUAGE TO THE EFFECT THAT A BID SUBMITTED IN RESPONSE THERETO BY A CORPORATE ENTITY MUST BEAR THE SIGNATURE OF AN INDIVIDUAL PROPERLY AUTHORIZED TO PERFORM SUCH ACTS ON BEHALF OF THE CORPORATION. BUT YOU POINT OUT THAT GENERAL SERVICES PROCUREMENT REGULATION (GSPR) NO. 5-2.301 PROVIDES, IN PART, IN THIS REGARD THAT "ANY BID WHICH IS NOT SIGNED BY THE BIDDER OR HIS AUTHORIZED REPRESENTATIVE SHALL BE DISREGARDED.'

KENTILE'S LOW BID ON THE ITEMS IN QUESTION WAS SIGNED BY JACK CLEGG, "ASSISTANT GENERAL SALES MANAGER.' MR. CLEGG'S SIGNATURE WAS PROPERLY AFFIXED ON STANDARD FORM 33, IN THE BLOCK ENTITLED ,SIGNATURE OF PERSON AUTHORIZED TO SIGN BID.'

YOU PROTEST ON THE BASIS THAT KENTILE'S BID WAS NOT SIGNED BY A PERSON AUTHORIZED TO BIND OR COMMIT KENTILE TO THE PERFORMANCE OF GOVERNMENT CONTRACTS, AND THEREFORE, IN ACCORDANCE WITH THE PROVISIONS OF GSPR 5- 2.301, QUOTED ABOVE, KENTILE'S BID WAS INVALID AND SHOULD NOT HAVE BEEN CONSIDERED FOR AWARD. IN SUPPORT THEREOF, YOU SUBMITTED FOR OUR CONSIDERATION, BY LETTER DATED APRIL 5, 1967, SEVERAL STATEMENTS AND AFFIDAVITS TO THE EFFECT THAT NO RESPONSIBLE BUSINESSMAN WOULD CONSIDER THE SIGNATURE OF AN ASSISTANT GENERAL SALES MANAGER AFFIXED TO A BID AS SUFFICIENT TO COMMIT HIS CORPORATE EMPLOYER TO THE PERFORMANCE OF A LARGE GOVERNMENT CONTRACT.

AFTER BEING ADVISED BY THE CONTRACTING AGENCY OF THE RECEIPT OF YOUR PROTEST, MR. D. O-D. KENNEDY, PRESIDENT OF KENTILE, SUBMITTED AN AFFIDAVIT ATTESTING TO THE FACT THAT JACK CLEGG HAD BEEN EXPRESSLY AUTHORIZED BY HIM SINCE 1959 "TO EXECUTE BIDS AND CONTRACTS PERTAINING TO THE SALES OF THIS COMPANY.' AS EVIDENCE OF THE FOREGOING, MR. KENNEDY STATED FURTHER THAT COPIES OF STANDARD FORM 129,"BIDDERS MAILING LIST APPLICATION," HAD BEEN FILED IN THREE DIFFERENT GOVERNMENT PROCUREMENT OFFICES BETWEEN 1963 AND 1966. THESE APPLICATIONS ADVISED THE RECEIVING AGENCIES THAT JACK CLEGG, AND OTHERS NAMED THEREIN, WERE FULLY AUTHORIZED TO SIGN BIDS, OFFERS, AND CONTRACTS ON KENTILE'S BEHALF. COPIES OF THE APPLICATIONS WERE SUBMITTED TO THIS OFFICE, IN ADDITION TO COPIES OF TWO CONTRACTS DATED FEBRUARY 3 AND MARCH 4, 1964, RESPECTIVELY, WHICH WERE AWARDED BY THE DEFENSE SUPPLY AGENCY TO KENTILE OVER MR. CLEGG'S SIGNATURE.

IT IS GENERALLY AGREED THAT IT IS NOT NECESSARY TO EVIDENCE THE EXISTENCE OF A PRINCIPAL-AGENT RELATIONSHIP BY A WRITING. SEE 3 AM. JUR. 2D, AGENCY, 69 AND 70. IN THIS REGARD, THE ACTUAL AUTHORITY OF AN AGENT TO ACT ON BEHALF OF HIS PRINCIPAL, IRRESPECTIVE OF WHETHER THE PRINCIPAL IS AN INDIVIDUAL OR A CORPORATE ENTITY, MAY BE IMPLIED IN FACT THROUGH CIRCUMSTANTIAL EVIDENCE. ID. 71. ORDINARILY, ANY COMPETENT EVIDENCE WHICH TENDS TO CIRCUMSTANTIALLY PROVE THE AGENT'S AUTHORITY SHOULD BE CONSIDERED EVEN THOUGH IT IS NOT COMPLETELY DETERMINATIVE OF THE ISSUE. ID. 351. THIS NATURALLY INCLUDES ALL OF THE CIRCUMSTANCES SURROUNDING THE TRANSACTION IN QUESTION INCLUDING THE PREVIOUS CONDUCT OF THE PRINCIPAL. ID. 352. SECTION 352 OF 3 AM. JUR. 2D, AGENCY, FURTHER STATES THAT "* * * EVIDENCE OF AN AGENT'S AUTHORITY TO BIND HIS PRINCIPAL IS FREQUENTLY FOUND IN THE FACT THAT THE ALLEGED PRINCIPAL ACQUIESCED IN, RECOGNIZED, OR ADOPTED SIMILAR ACTS DONE ON OTHER OCCASIONS BY THE ASSUMED AGENT.' SEE, ALSO, THE CASES CITED THEREIN AS ANNOTATIONS TO THE FOREGOING PRINCIPLES.

ON THE BASIS OF THE FACTS PRESENTED, IT IS REASONABLE TO CONCLUDE THAT MR. CLEGG POSSESSED THE ACTUAL AUTHORITY TO SIGN THE BID ON BEHALF OF THE CORPORATION IN RESPONDING TO THE INVITATION.

THEREFORE, AND SINCE THE RESULTING CONTRACT REPRESENTS A VALID AND SUBSISTING OBLIGATION OF KENTILE, YOUR PROTEST IS DENIED.

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