B-144470, MAR. 14, 1961

B-144470, MAR. 14, 1961

TO TECHNER, RUBIN AND SHAPIRO:

ON BEHALF OF THE GOODWAY PRINTING COMPANY, INC., YOU HAVE BY LETTER DATED NOVEMBER 15, 1960, WITH ENCLOSURES, PROTESTED THE REJECTION OF THAT FIRM'S LOW BID SUBMITTED IN RESPONSE TO INVITATION NO. 19-604-60 241, ISSUED JUNE 17, 1960, BY AIR FORCE COMMAND AND CONTROL DEVELOPMENT DIVISION, LAURENCE G. HANSCOM FIELD, BEDFORD, MASSACHUSETTS.

THE REFERRED-TO INVITATION REQUESTED BIDS FOR PERFORMING CLASSIFIED AND UNCLASSIFIED GRAPHIC ART WORK AND RELATED SERVICES. THE RECORD SHOWS THAT THE GOODWAY PRINTING COMPANY, INC., SUBMITTED THE LOWEST BID BUT THAT IT WAS REJECTED BECAUSE IT HAD NOT BEEN SIGNED BY AN AUTHORIZED OFFICER OF THE CORPORATION AND BECAUSE IT WAS INCOMPLETE AS TO THE LISTING OF THE UNIT PRICES.

IT IS REPORTED THAT WHEN THE BIDS WERE OPENED IT WAS NOTED THAT THE SPACE FOR THE SIGNATURE OF THE BIDDER ON THE FACE SHEET OF THE BID OF THE GOODWAY PRINTING COMPANY, INC., WAS BLANK AND THAT THE TYPEWRITTEN NAME OF "B. J. WOLK--- VICE PRESIDENT" APPEARED IN THE NAME AND TITLE BOX; THAT THE OMISSION OF THE SIGNATURE OF MR. WOLK ON THE CORPORATION'S BID WAS BROUGHT TO THE ATTENTION OF MR. POLLOCK, A REPRESENTATIVE OF THE GOODWAY PRINTING COMPANY, INC., WHO WAS PRESENT AT THE BID OPENING; AND THAT MR. POLLOCK WAS ADVISED THAT SINCE THE CORPORATION'S BID WAS NOT ACCOMPANIED BY A SIGNED TRANSMITTAL LETTER OR SIGNED AMENDMENT, THE CORPORATION'S BID COULD NOT BE ACCEPTED. IT IS FURTHER REPORTED THAT SINCE THE FAILURE OF THE CORPORATION TO SIGN ITS BID APPEARED FATAL, NO MENTION WAS MADE AT THAT TIME TO MR. POLLOCK OF THE CORPORATION'S FAILURE TO COMPLY WITH OTHER CONDITIONS OF THE INVITATION. THE RECORD INDICATES THAT AFTER MR. SHAPIRO OF YOUR FIRM HAD SPOKEN TO THE CONTRACTING OFFICER, MR. WOLK WAS PERMITTED TO SIGN THE CORPORATION'S BID. SUBSEQUENTLY, AFTER REVIEW OF THE BID OF THE CORPORATION BY THE CHIEF, BASE PROCUREMENT, LAURENCE G. HANSCOM FIELD, IT WAS ADMINISTRATIVELY DETERMINED THAT THE BID OF THE GOODWAY PRINTING COMPANY, INC., SHOULD BE CONSIDERED AS NONRESPONSIVE TO THE INVITATION AND, THEREFORE, REJECTED. MR. SHAPIRO WAS ADVISED BY TELEPHONE OF THE REJECTION OF THE CORPORATION'S BID.

BY LETTER DATED AUGUST 10, 1960, MR. SHAPIRO PROTESTED THE ADMINISTRATIVE DETERMINATION THAT THE BID OF THE CORPORATION SHOULD BE REJECTED. IN A LETTER DATED AUGUST 31, 1960, THE CONTRACTING OFFICER ADVISED THE CORPORATION THAT A FURTHER AND MORE COMPLETE REVIEW OF THE MATTER HAD DISCLOSED THAT ITS BID WAS NONRESPONSIVE IN NOT MEETING THE ESSENTIAL REQUIREMENTS OF THE INVITATION AS ISSUED; THAT IN PARTICULAR, ON PAGE 12 OF THE INVITATION, A STATEMENT "IN SCHEDULE PRICE" HAD BEEN INSERTED IN LIEU OF A REQUIRED UNIT PRICE AND THAT ON PAGE 16 THERE WERE TWO ITEMS ON WHICH THE WORDS "NO QUOTE" HAD BEEN ENTERED; AND THAT THESE DEFICIENCIES, WHICH ARE SUBSTANTIVE IN NATURE BECAUSE THEY AFFECT PRICE, QUALITY, AND QUANTITY, COULD OT BE WAIVED BY THE CONTRACTING OFFICER. IT WAS ALSO POINTED OUT TO THE CORPORATION THAT ITS BID COULD NOT BE CONSIDERED RESPONSIVE SINCE THE INVITATION CONTAINED A METHOD OF AWARD PROVISION WHICH STATED IN PART,"AWARD SHALL BE MADE TO BUT ONE RESPONSIBLE BIDDER WHO BIDS ON ALL ITEMS AND WHOSE PRICES ARE LOWEST AS DETERMINED BY THE FOLLOWING * * *.'

WE HELD IN 34 COMP. GEN. 439 THAT THE FAILURE OF A BIDDER TO SIGN A BID WHICH BORE ONLY A TYPEWRITTEN NAME BUT WAS NOT ACCOMPANIED BY ANY DOCUMENTARY 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. IT WAS ALSO HELD IN 17 COMP. GEN. 497 THAT A TYPEWRITTEN SIGNATURE MAY BE ADOPTED OR AUTHORIZED, AND THAT UNSIGNED BIDS MAY BE CONSIDERED IF ACCOMPANIED BY A LETTER, BOND OR OTHER DOCUMENT SIGNED BY THE BIDDER CLEARLY EVIDENCING HIS INTENTION TO SUBMIT THE BID IN QUESTION.

IN YOUR LETTER OF NOVEMBER 15, 1960, TO THE CONTRACTING OFFICER, YOU QUOTE SUBPARAGRAPH (B) OF AIR FORCE PROCUREMENT INSTRUCTION 2-404 (1957 EDITION) ENTITLED,"BIDS--- LACK OF SIGNATURE," AND YOU SPECIFICALLY REFER TO THAT PORTION OF THE SUBPARAGRAPH WHICH READS THAT "AN UNSIGNED BID MAY BE ACCOMPANIED BY OTHER MATERIAL WHICH CLEARLY INDICATES THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT, IN WHICH CASE THE FAILURE TO SIGN THE BID MAY BE TREATED AS A MERE INFORMALITY.' YOU CONTEND THAT THE PRESENCE AT THE BID OPENING OF THE CORPORATION'S REPRESENTATIVE, MR. POLLOCK, FALLS INTO THE CATEGORY OF MATERIAL ACCOMPANYING THE UNSIGNED BID AND THAT IT CLEARLY INDICATES THE CORPORATION'S INTENTION TO BE BOUND BY THE UNSIGNED DOCUMENT. YOU ALSO STRESS THE FACT THAT THE CORPORATION'S VICE PRESIDENT AFFIRMED THE CORPORATION'S INTENTION TO BE BOUND BY FORMALLY AFFIXING HIS SIGNATURE TO THE BID AT THE SPECIFIC REQUEST OF GOVERNMENT OFFICIALS. WE DO NOT AGREE WITH THE ABOVE CONTENTION FOR THE REASON THAT AT THE TIME OF THE BID OPENING THERE WAS NO INDICATION THAT MR. POLLOCK, THE PERSON WHO ACCOMPANIED THE CORPORATION'S BID TO THE OPENING, WOULD HAVE HAD AUTHORITY TO BIND THE CORPORATION. ON THE CONTRARY, THE FACT THAT MR. WOLK, THE VICE PRESIDENT OF THE CORPORATION, WAS REQUIRED TO TRAVEL TO THE CONTRACTING OFFICE AT BOSTON, MASSACHUSETTS, FOR THE PURPOSE OF SIGNING THE CORPORATION'S BID APPEARS TO INDICATE THAT THE PERSON WHO HAND-CARRIED IT WAS NOT AUTHORIZED TO DO SO. WHILE MR. WOLK, THE VICE PRESIDENT, DID AFFIRM THE CORPORATION'S INTENTION TO BE BOUND BY SIGNING THE CORPORATION'S BID, SUCH ACT TOOK PLACE AFTER HE HAD HAD THE OPPORTUNITY OF CONSIDERING THE REVEALED BIDS OF COMPETITORS. THUS, AT THE TIME HE SIGNED THE BID, MR. WOLK WAS IN THE POSITION TO MAKE AN ELECTION EITHER TO ABIDE BY THE CORPORATION'S BID OR TO CLAIM THAT IT WAS SUBMITTED IN ERROR BY A PERSON WITHOUT AUTHORITY TO ENTER INTO CONTRACTS ON ITS BEHALF.

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.'

IN ANY EVENT, ASIDE FROM THE FACT THAT AN AUTHORIZED OFFICIAL OF THE CORPORATION FAILED TO SIGN THE CORPORATION'S BID PRIOR TO THE BID OPENING, THE CORPORATION'S BID WAS INCOMPLETE IN THAT IT DID NOT CONTAIN A UNIT PRICE FOR EVERY ITEM AS REQUIRED BY THE INVITATION.

SECTION 2305, TITLE 10, U.S. CODE, WHICH IS A BASIC AUTHORITY FOR AGENTS OF THE GOVERNMENT TO ENTER INTO CONTRACTS, PROVIDES "AWARDS SHALL BE MADE * * * TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.'

UNDER THE LAW A BID IS REQUIRED TO BE COMPLETE AND RESPONSIVE TO THE INVITATION IN ALL MATERIAL RESPECTS AT THE TIME FIXED IN THE INVITATION FOR THE OPENING OF THE BIDS. AFTER THE OPENING, BIDS MAY NOT BE CHANGED OR MODIFIED. THE GOVERNMENT PURCHASING OFFICERS ARE REQUIRED TO GIVE ALL INTERESTED BIDDERS AN EQUAL OPPORTUNITY TO BID AND THE GOVERNMENT IS DESIROUS OF OBTAINING THE BEST PRICE POSSIBLE. IT IS FOR THESE REASONS THAT THE INVITATION FOR BIDS SHOULD BE DRAWN IN SUCH A MANNER TO FACILITATE BIDDERS IN GIVING THE REQUIRED INFORMATION SO THAT THERE MAY BE NO QUESTION OF FAVORITISM OR FRAUD AND THAT ALL BIDS MAY BE CONSIDERED FOR AWARD. THE REASON WHY THE CONTRACTING OFFICER DID NOT TAKE ADVANTAGE OF THE CORPORATION'S LOWER PRICE WAS DUE ENTIRELY TO THE CORPORATION'S OWN ACTIONS IN FAILING TO QUOTE A UNIT PRICE FOR EVERY ITEM AS SPECIFICALLY REQUIRED BY THE INVITATION.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.