B-143132, AUG. 10, 1960

B-143132, AUG. 10, 1960

TO JONES EVERETT DAVIS, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1960, WITH ENCLOSURES, RELATIVE TO THE PROTEST OF MR. EDWIN DAVIS AGAINST THE REJECTION OF HIS BID ON STAR ROUTE NO. 12235, ATLANTA, GEORGIA, BECAUSE OF THE FAILURE OF MR. J. E. DAVIS TO SUBMIT PROOF WITH SUCH BID OF HIS AUTHORITY TO SIGN THE BID ON BEHALF OF MR. EDWIN DAVIS.

BY ADVERTISEMENT FOR MAIL SERVICE DATED APRIL 18, 1960, THE REGIONAL TRANSPORTATION MANAGER FOR THE STATE OF GEORGIA, REQUESTED SEALED PROPOSALS FOR CARRYING THE MAIL FROM JULY 1, 1960, TO JUNE 30, 1961, FROM ATLANTA, GEORGIA, TO OCOSE, TENNESSEE, AND RETURN. PROPOSALS WERE OPENED ON JUNE 3, 1960, AND IT APPEARS FROM THE ABSTRACT OF PROPOSALS RECEIVED THAT EDWIN DAVIS AND CLYDE DAVIS SUBMITTED THE LOWEST JOINT PROPOSAL IN THE AMOUNT OF $10,980, AND THAT J. W. MOORE AND MORRIS S. WINKLES SUBMITTED THE NEXT LOWEST JOINT PROPOSAL IN THE AMOUNT OF $10,990. THE SIGNATURES ON THE LOW PROPOSAL WERE AS FOLLOWS:

"CLYDE DAVIS

(BIDDER AND PRINCIPAL)

"EDWIN DAVIS BY J. E. DAVIS

(BIDDER AND PRINCIPAL)

THE BID ALSO CONTAINED THE SIGNATURE OF THE ATTORNEY IN FACT OF THE SURETY COMPANY ON THE BID AND PERFORMANCE BOND. ATTACHED TO THE BID WAS A "CERTIFICATE OF POSTAL OFFICIAL AS TO BIDDER" WHICH WAS EXECUTED ON MAY 26, 1960, BY THE POSTMASTER AT ATHENS, GEORGIA, ATTESTING TO THE QUALIFICATIONS OF "CLYDE AND EDWIN DAVIS, BIDDER AND PRINCIPAL IN THE FOREGOING BOND * * *.' THE BID OF CLYDE AND EDWIN DAVIS WAS REJECTED BECAUSE "EDWIN DAVIS DID NOT SIGN PERSONALLY AND POWER OF ATTORNEY NOT FURNISHED WITH BID.' AWARD WAS MADE TO THE SECOND LOW BIDDER WHO CURRENTLY IS PERFORMING THE SERVICES.

WHILE THE INVOLVED ADVERTISEMENT FOR PROPOSALS DID NOT REQUIRE THAT EVIDENCE OF AN AGENT'S AUTHORITY TO SIGN MUST ACCOMPANY THE BID, WE HAVE HELD THAT EVIDENCE OF AN AGENT'S AUTHORITY TO EXECUTE A BID ON BEHALF OF HIS PRINCIPAL MUST ACCOMPANY THE BID. 15 COMP. GEN. 566. THE GENERAL RULES OF AGENCY REFERRED TO IN YOUR LETTER DO NOT NECESSARILY APPLY TO THE SOLICITATION OF BIDS BY THE GOVERNMENT UNDER STATUTORY COMPETITIVE PROCEDURES. IN THE CASE OF BIDS BY AGENTS, IT IS IMPERATIVE THAT IT BE KNOWN, PRIOR TO AWARD, THAT ACCEPTANCE OF SUCH A BID BY THE GOVERNMENT WILL RESULT IN A VALID CONTRACT. IF SATISFACTORY EVIDENCE OF AN AGENT'S AUTHORITY TO ACT IS NOT FURNISHED WITH THE EXECUTED BID, THE GOVERNMENT AGENCY NECESSARILY MUST CALL UPON THE BIDDER TO FURNISH PROOF THAT THE AGENT HAD THE REQUISITE AUTHORITY. AT THAT TIME, THE BIDDER, IN EFFECT, COULD BE SAID TO HAVE AN OPTION. IF HE WISHES TO ACCEPT THE AWARD, HE WILL PRODUCE THE EVIDENCE. ON THE OTHER HAND, IF HE DECIDES TO REJECT THE AWARD, HE CAN DO SO VERY SIMPLY BY NOT FURNISHING THE EVIDENCE OR BY REPUDIATING THE AUTHORITY OF THE AGENT. THUS, THE BIDDER WILL BE IN THE POSITION TO MAKE AN ELECTION EITHER TO ABIDE BY ITS BID OR TO CLAIM THAT IT WAS SUBMITTED IN ERROR BY A PERSON WITHOUT AUTHORITY TO ENTER INTO CONTRACTS ON ITS BEHALF. SEE 34 COMP. GEN. 439.

WE HAVE CONSISTENTLY TAKEN THE POSITION THAT A BIDDER MAY NOT HAVE MORE THAN ONE CHANCE UNDER THE SAME ADVERTISEMENT. FOR EXAMPLE, AS WE HELD IN 34 COMP. GEN. 82,"CONDITIONS OR RESERVATIONS WHICH GIVE A BIDDER A CHANCE TO SECOND-GUESS HIS COMPETITORS AFTER BID OPENING MUST BE REGARDED AS FATAL TO THE BID.'

WHILE, AS YOU CONTEND, IT MAY BE THAT RECOURSE COULD BE HAD AGAINST THE SURETY IN THE EVENT ONE OR BOTH OF THE JOINT BIDDERS REFUSED TO PERFORM AFTER AN AWARD WAS MADE TO THEM, IT IS NONETHELESS TRUE THAT EDWIN DAVIS COULD DISAFFIRM ANY OBLIGATION TO PERFORM ON THE BASIS THAT THE AGENT LACKED AUTHORITY TO EXECUTE THE BID AND BOND IN HIS NAME. WE DO NOT BELIEVE THAT IT WOULD HAVE BEEN IN THE BEST INTERESTS OF THE GOVERNMENT TO MAKE AN AWARD TO SUCH JOINT BIDDERS UNDER THE CIRCUMSTANCES.

REGARDING YOUR CONTENTION THAT A BID WAS PREVIOUSLY SUBMITTED WHICH WAS NOT ACCOMPANIED BY EVIDENCE OF THE AGENT'S AUTHORITY AND THE POST OFFICE DEPARTMENT FAILED IN ITS DUTY TO ADVISE YOU THAT SUCH A BID WAS DEFECTIVE, THAT DEPARTMENT HAS INFORMED US THAT, ALTHOUGH YOUR STATEMENT IS CORRECT, THE BID IN THAT CASE WAS NOT THE LOWEST RESPONSIVE BID AND, HENCE, WAS NOT FOR CONSIDERATION. THE POST OFFICE DEPARTMENT TAKES THE POSITION, WITH WHICH WE AGREE, THAT WHERE A PERSON HAS NOT SUBMITTED THE LOWEST RESPONSIVE BID, THERE IS NO LEGAL REQUIREMENT THAT THE DEPARTMENT MUST ADVISE HIM THAT HIS BID IS UNACCEPTABLE FOR OTHER REASONS ALSO.