B-131826, JUN. 18, 1957

B-131826, JUN. 18, 1957

TO LEONARD M. RING, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1957, WITH ENCLOSURES, PROTESTING ON BEHALF OF MR. MELVIN GOLDMAN THE CONTEMPLATED REJECTION OF HIS BID AND THE AWARD OF A CONTRACT TO CARLOW ZVONEK FOR THE PURCHASE OF CERTAIN PARCELS OFFERED FOR SALE AT PROJECT NO. IND-1-B-1, CAMP ATTERBURY, INDIANA.

THE RECORD DISCLOSES THAT MR. GOLDMAN WAS ADVISED BY THE CONTRACTING AGENCY THAT HIS BID, WHICH WOULD BE HIGH FOR 38 STRUCTURES, WOULD BE REJECTED BECAUSE OF THE INCLUSION OF A STATEMENT THAT HE WAS "BINDING FOR A CORPORATION TO BE DESIGNATED OR FORMED TO HANDLE THIS JOB IF I AM THE SUCCESSFUL BIDDER.' IT WAS INDICATED TO MR. GOLDMAN THAT THE BID COULD NOT BE ACCEPTED BECAUSE, ON ITS FACE, IT APPEARED THAT HE WAS BIDDING AS AN AGENT FOR A NON-EXISTENT PRINCIPAL. YOU PROTESTED THIS PROPOSED ACTION ON THE PART OF THE CONTRACTING AGENCY AND ALSO PROTESTED THE PROPOSED AWARD TO CARLOW-ZVONEK FOR THE REASON THAT THEIR FORMAL BID WAS MODIFIED BY TELEGRAM AND SAID BID AS MODIFIED DID NOT COMPLY WITH PARAGRAPH 5 OF THE GENERAL CONDITIONS SINCE IT WAS NOT ACCOMPANIED BY A GOOD FAITH DEPOSIT EQUAL TO 10 PERCENT OF THE TOTAL BID PRICE.

THE COMMISSIONER, PUBLIC HOUSING ADMINISTRATION, REPORTS THAT, PRIOR TO THE OPENING OF THE BIDS ON APRIL 30, 1957, A TELEGRAM WAS RECEIVED FROM CARLOW-ZVONEK INCREASING THEIR BID $100 ON EACH OF THE FIRST 50 ITEMS AND $50 ON EACH OF THE BALANCE OF THE ITEMS. THE ORIGINAL CARLOW-ZVONEK BID WAS FOR $60,308.90 AND A GOOD FAITH DEPOSIT OF $6,500 ACCOMPANIED IT. TO SUPPORT THEIR INCREASED BID, ON THE DAY FOLLOWING THE BID OPENING, CARLOW- ZVONEK WIRED AN ADDITIONAL SUM SUFFICIENT TO COVER THE INCREASED GOOD FAITH DEPOSIT NECESSITATED BY THE INCREASED BID.

IT LONG HAS BEEN RECOGNIZED THAT IN CONNECTION WITH THE AWARDING OF PUBLIC CONTRACTS NO BIDDER ACQUIRES AN ABSOLUTE RIGHT TO AN AWARD OF PUBLIC BUSINESS BUT, RATHER, THE PUBLIC INTEREST IS FIRST FOR CONSIDERATION IN THE MAKING OF SUCH AWARD. IN A NUMBER OF DECISIONS OF THE ACCOUNTING OFFICERS IT HAS BEEN HELD THAT THE FAILURE OF A BIDDER TO SUBMIT A BID BOND WITH ITS BID, AS REQUIRED BY THE INVITATION TO BID, IS NOT NECESSARILY A MATERIAL DEFICIENCY IN THE BID BUT RATHER IS A MATTER WHICH MAY BE WAIVED BY A CONTRACTING OFFICER AS AN INFORMALITY WHEN SUCH ACTION IS IN THE PUBLIC INTEREST. SEE 26 COMP. GEN. 49; 31 ID. 20; 36 ID. 601. ACCORDINGLY, IT MUST BE HELD THAT THE BID OF CARLOW-ZVONEK IS NOT MATERIALLY DEFICIENT AND PROPERLY IS FOR CONSIDERATION ALONG WITH THE OTHER RESPONSIVE BIDS.

IN HIS REPORT TO OUR OFFICE THE COMMISSIONER, PUBLIC HOUSING ADMINISTRATION, STATES THAT, UPON REVIEW OF ALL THE FACTS AND CIRCUMSTANCES APPEARING, IT HAS BEEN CONCLUDED ADMINISTRATIVELY TO ACCEPT THE BIDS OF MR. GOLDMAN ON THE 38 ITEMS FOR WHICH HIS BIDS ARE HIGH AND THE BIDS OF CARLOW-ZVONEK FOR THE ITEMS ON WHICH THEY ARE HIGH. IN VIEW OF THIS DETERMINATION, TO WHICH WE SEE NO OBJECTION, IT IS ASSUMED THAT THE PRIMARY PURPOSE OF YOUR LETTER HAS BEEN ACCOMPLISHED AND, SO FAR AS OUR OFFICE IS CONCERNED, THE MATTER IS BEING CONSIDERED AS CLOSED.