B-124029, JUN. 1, 1955

B-124029, JUN. 1, 1955

TO THE HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO LETTER OF MAY 17, 1955, WITH ENCLOSURES, FROM THE CHIEF PURCHASING AGENT, VETERANS ADMINISTRATION, REQUESTING A DECISION AS TO WHETHER A BID SUBMITTED BY COHEN-S, 7TH AND CUMBERLAND STREETS, LEBANON, PENNSYLVANIA, WHICH WAS SIGNED BY ITS REPRESENTATIVE AT THE BID OPENING, MAY BE CONSIDERED IN MAKING AN AWARD UNDER INVITATION NO. 56-2, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA.

THE REFERRED-TO INVITATION REQUESTED BIDS FOR FURNISHING MEN'S FURNISHINGS, CLOTHING, AND FOOTWEAR AS REQUIRED BY THE HOSPITAL DURING THE PERIOD BEGINNING JULY 1, 1955, AND ENDING JUNE 30, 1956, UNLESS SOONER TERMINATED UNDER THE PROVISIONS OF THE CONTRACT. PROSPECTIVE BIDDERS WERE REQUIRED BY PARAGRAPH 21 OF THE TERMS AND CONDITIONS OF THE INVITATION TO SUBMIT WITH THEIR BIDS ,ONE EACH SIZE THIRTY-SIX REGULAR, FORTY-TWO LONG AND FORTY-TWO SHORT STOUT SUIT OF CLOTHES, ONE OVERCOAT SIZE THIRTY-EIGHT REGULAR AND ONE SAMPLE OF ALL OTHER ITEMS COVERED BY THE BIDDER'S PROPOSAL.'

IN HIS LETTER OF MAY 11, 1955, THE ACTING MANAGER OF THE HOSPITAL STATES THAT, PRIOR TO THE BID OPENING, COHEN'S SUBMITTED THE REQUIRED SAMPLES, WITH A BID; THAT UPON OPENING IT WAS FOUND THAT THE SPACE FOR SIGNATURE OF THE BIDDER ON THE FACE SHEET OF ITS BID WAS BLANK, BUT THAT ON ALL PAGES OF THE BID, WHICH CONTAINED THE ITEMS AND AMOUNTS BID THERE APPEARED IN INK THE NAME ,COHEN-S" AND ITS ADDRESS. A REPRESENTATIVE OF COHEN'S WAS PRESENT AT THE BID OPENING AND, AFTER THE FIRM'S BID WAS OPENED, HE REQUESTED PERMISSION TO SEE THE BID. SUCH REQUEST WAS GRANTED AND, IN VIEWS OF THE CONTRACTING OFFICER, WITNESSES, AND OTHER PROSPECTIVE BIDDERS, THE REPRESENTATIVES SIGNED THE FACE SHEET OF COHEN'S BID BEFORE THE CONTRACTING OFFICER COULD STOP HIM. IT IS ALSO STATED THAT COHEN'S HAS BEEN SATISFACTORILY FURNISHING SUPPLIES TO THE HOSPITAL UNDER CONTRACT FOR THE PAST TWO YEARS.

IN OUR DECISION OF MARCH 11, 1955, B-123061 (34 COMP. GEN. 429 TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, WHICH IS REFERRED TO BY THE ACTING MANAGER, IT WAS HELD THAT THE FAILURE OF A BIDDER TO SIGN A BID WHICH BORE ONLY A TYPEWRITTEN NAME BUT WAS NOT ACCOMPANIED BY ANY DOCUMENTARY OR OTHER EVIDENCE INDICATING THAT THE TYPEWRITTEN NAME HAD BEEN ADOPTED OR AUTHORIZED AS A SIGNATURE, WAS A SUBSTANTIVE DEFECT WHICH SHOULD NOT BE WAIVED AFTER OPENING OF THE BIDS. AS POINTED OUT IN THAT DECISION, IT HAS ALSO BEEN HELD THAT UNSIGNED BIDS MAY BE CONSIDERED IF ACCOMPANIED BY A LETTER, BOND OR OTHER DOCUMENT SIGNED BY THE BIDDER CLEARLY EVIDENCING HIS INTENT TO SUBMIT THE BID IN QUESTION (17 COMP. GEN. 497).

THE DECISIVE QUESTION IN SUCH CASES IS WHETHER ACCEPTANCE OF THE BID AS SUBMITTED WILL EFFECT A CONTRACT BINDING ON THE BIDDER. IN THE CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT THE ACTUAL VOLUNTARY SUBMISSION OF THE COHEN'S BID, ACCOMPANIED AS IT WAS BY SAMPLES OF THE ITEMS OFFERED, IS TOO CLEARLY ESTABLISHED TO PERMIT ITS DISAVOWAL OR WITHDRAWAL, AND THAT WITHOUT REGARD TO THE SIGNATURE ADDED AFTER OPENING ITS ACCEPTANCE WOULD HAVE CREATED AN ENFORCEABLE CONTRACT. NO QUESTION OF AN ELECTION BY THE BIDDER, SUCH AS AROSE IN THE CASE CONSIDERED IN THE DECISION OF MARCH 11, 1955, IS PRESENT IN THE INSTANT CASE.

ACCORDINGLY, THE BID OF COHEN'S MAY BE CONSIDERED ALONG WITH THE OTHER BIDS IN MAKING AN AWARD UNDER THE SUBJECT INVITATION.