B-132631, AUG. 8, 1957

B-132631, AUG. 8, 1957

TO MR. FRANK W. RASER, FOREST SUPERVISOR:

IN YOUR LETTER DATED JULY 5, 1957, REFERENCE A DISBURSEMENT VOUCHERS (ADVANCE DECISION) S SALES GENERAL, YOU REQUESTED IN YOUR CAPACITY AS A CONTRACTING OFFICER A DECISION WHETHER AN UNSIGNED BID ACCOMPANIED BY AN IMPERFECT BID DEPOSIT SHOULD BE CONSIDERED IN MAKING AN AWARD OF A CONTRACT FOR THE SALE OF FOREST TIMBER IN DAVY CROCKETT NATIONAL FOREST, TRINITY COUNTY, TEXAS.

ON MAY 10, 1957, AN ADVERTISEMENT IN THE LUFKIN DAILY NEWS SOLICITED BIDS FOR THE SALE OF TIMBER MARKED FOR CUTTING IN DAVY CROCKETT NATIONAL FOREST. UNDER THE TERMS OF THE SALE, EACH BIDDER WAS REQUIRED TO TRANSMIT A $6,000 DEPOSIT TO BE MADE BY CERTIFIED CHECK, BANK DRAFT, CASHIER'S CHECK, OR MONEY ORDER. ON JUNE 11, 1957, BIDS WERE OPENED. KENNARD LUMBER COMPANY SUBMITTED THE HIGHEST BID. IN THE SPACE ON THE BID DESIGNATED FOR THE SIGNATURE AND THE FULL ADDRESS OF THE BIDDER, THERE APPEARED THE NAME AND ADDRESS OF THE COMPANY WRITTEN BY HAND. ALSO, INSTEAD OF THE CERTIFIED CHECK OR EQUIVALENT REQUIRED BY THE NOTICE OF SALE, A PERSONAL CHECK FOR $6,000 EXECUTED BY A. E. HERVEY, THE OWNER OF THE COMPANY, WAS SUBMITTED WITH THE BID.

BY LETTERS DATED JUNE 12 AND 18, 1957, KENNARD LUMBER COMPANY WAS REQUESTED TO HAVE THE BID SIGNED BY AN AUTHORIZED OFFICIAL OF THE COMPANY AND TO SUBMIT THE REQUIRED SECURITY DEPOSIT AS A SUBSTITUTE FOR THE PERSONAL CHECK WHICH WAS SUBMITTED WITH THE BID. BY LETTER DATED JUNE 20, 1957, THE COMPANY, BY A. E. HERVEY, REPLIED:

"WITH REFERENCE TO THE SALE OF JUNE 11, 1957, I WISH TO ADVISE THAT THE BID SUBMITTED BY MYSELF WAS NOT IN ORDER AND SHOULD BE REJECTED, VIZ NO CASHIERS (SIC) CHECK OR CERTIFIED CHECK ENCLOSED WITH BID, NO SIGNATURE ON BID.

"IN THE EVENT MY BID IS RULED AS CORRECT, I WISH THE PRIVILEGE (SIC) OF COMPLETING THE PURCHASE IN PROPER FORM.'

BY LETTER DATED JUNE 17, 1957, EDENS-BIRCH LUMBER COMPANY, THE NEXT HIGHEST BIDDER, PROTESTED AGAINST THE SALE TO THE HIGH BIDDER ON THE GROUNDS THAT THE HIGH BIDDER DID NOT MEET THE REQUIREMENTS AND RULES FOR BIDDING ON THE SALE.

ON JUNE 27, 1957, THE BID DEPOSIT OF KENNARD LUMBER COMPANY WAS DEPOSITED FOR COLLECTION. WE HAVE ASCERTAINED INFORMALLY THAT THE BID DEPOSIT CHECK WAS DISHONORED FOR PAYMENT BY REASON OF A STOP ORDER ISSUED BY THE COMPANY.

IN VIEW OF THE CIRCUMSTANCES, YOU REQUEST A DECISION ON THE FOLLOWING QUESTIONS:

"1. WAS IT PROPER FOR THE CONTRACTING OFFICER TO CONSIDER THE IMPROPER BID DEPOSIT OF KENNARD LUMBER COMPANY TO BE BID IMPERFECTIONS WHICH COULD BE WAIVED PROVIDING THEY WERE CORRECTED BY THE BIDDER, AND AWARD WITHHELD UNTIL CORRECTED?

"2. IF ANSWER TO NO. 1 IS IN THE AFFIRMATIVE, SHOULD BID OF KENNARD LUMBER COMPANY BE CONSIDERED AN INVALID BID AND THEREFORE DISREGARDED, SINCE THIS BIDDER DID NOT CORRECT HIS BID BY FURNISHING A DEPOSIT OF ACCEPTABLE TYPE, ALTHOUGH GIVEN OPPORTUNITY TO DO SO?

"3. WHAT ACTION SHOULD BE TAKEN ON PROTEST BY EDENS-BIRCH LUMBER COMPANY WHO SUBMITTED HIGHEST BID IN PROPER FORM?

IT IS ESTABLISHED THAT AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY A LETTER, BOND OR OTHER DOCUMENT SIGNED BY THE BIDDER CLEARLY EVINCING HIS INTENT TO SUBMIT THE BID. SEE 36 COMP. GEN. 523, 525. THE BIDDER'S PERSONAL DEPOSIT CHECK IN THE REQUIRED AMOUNT OF $6,000 SATISFIES THE REQUIREMENT FOR A "DOCUMENT SIGNED BY THE BIDDER CLEARLY EVINCING HIS INTENT TO SUBMIT THE BID.' ACCORDINGLY, THE FIRM SIGNATURE ON THE BID SHOULD BE TREATED AS AN AUTHENTICATION OF THE INSTRUMENT AND AS THE INTENDED SIGNATURE OF THE BIDDER.

THE SUBMISSION OF AN UNCERTIFIED DEPOSIT CHECK WHEN A CERTIFIED DEPOSIT CHECK IS REQUIRED IS NOT A MATERIAL DEFICIENCY IN THE BID BUT RATHER IS AN INFORMALITY WHICH MAY BE WAIVED WHEN SUCH ACTION IS IN THE PUBLIC INTEREST. B-124333, JULY 14, 1955. SEE ALSO UNITED STATES V. N.Y. AND PORTO RICO S.S. CO., 239 U.S. 88, 93. ACCORDINGLY, IN ANSWER TO YOUR FIRST QUESTION, IT IS PROPER FOR YOU TO CONSIDER THE UNCERTIFIED DEPOSIT CHECK A BID IMPERFECTION WHICH CAN BE WAIVED EVEN THOUGH IT IS NOT CORRECTED BY THE BIDDER PRIOR TO AWARD.

IT HAS BEEN HELD THAT THE GOVERNMENT IS EMPOWERED TO ACCEPT A BID NOTWITHSTANDING IT WAS SUBMITTED WITHOUT THE REQUIRED BID BOND. ADELHARDT CONSTRUCTION CO. V. UNITED STATES, 123 C.CLS. 456, 459. A FORTIORI THE GOVERNMENT IS EMPOWERED TO ACCEPT A BID NOTWITHSTANDING THE BID DEPOSIT WAS NOT SUBMITTED IN THE REQUIRED FORM. ACCORDINGLY, THE BID OF KENNARD LUMBER COMPANY SHOULD BE CONSIDERED VALID.

IN REGARD TO YOUR THIRD QUESTION, EDENS-BIRCH LUMBER COMPANY SHOULD BE ADVISED THAT SINCE THE KENNARD BID IS A VALID BID, THE INTERESTS OF THE GOVERNMENT REQUIRE THAT IT BE CONSIDERED ALONG WITH THE OTHER BIDS RECEIVED IN AWARDING THE CONTRACT.