B-148560, APR. 10, 1962

B-148560, APR. 10, 1962

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER R1.1 OF MARCH 30, 1962, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION WHETHER THE FAILURE OF ARDELL MARINE CORPORATION TO INITIAL ERASURES IN THE LOW BID SUBMITTED ON ITEM 2 UNDER IFB600 899-62 CAN BE WAIVED AS A MINOR INFORMALITY.

THE UNIT AND TOTAL PRICES TYPED BESIDE THE DESCRIPTION OF ITEM 2 IN THE BID OF THE ARDELL MARINE CORPORATION, MANUALLY SIGNED BY C. D. JOHNSON, PRESIDENT OF THE FIRM, WERE ERASED AND NEW PRICES WERE TYPED OVER THE ERASURES, BUT THE PRICE CHANGES THAT WERE MADE WERE NOT INITIALED.

UPON THE BASIS OF PARAGRAPH 1 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS WHICH STATES THAT "ERASURES OR OTHER CHANGES MUST BE INITIALED BY THE PERSON SIGNING THE BID," AND THE RULE THAT DEVIATIONS AFFECTING PRICE USUALLY CANNOT BE WAIVED, THE NEXT LOW BIDDER, INGERSOLL- RAND COMPANY, CONTENDS THAT THE FAILURE OF THE LOW BIDDER TO INITIAL THE CHANGE IS A DEVIATION THAT GOES TO THE SUBSTANCE OF THE BID SO AS TO REQUIRE ITS REJECTION. THE CONTRACTING OFFICER, ON THE OTHER HAND, IS OF THE OPINION THAT THE FAILURE TO INITIAL THE CHANGE SHOULD BE WAIVED AS A MINOR INFORMALITY. IN SUPPORT OF THAT POSITION HE STATES:

"* * * IT SHOULD BE NOTED THAT THE ARDELL BID WAS A SEALED BID WHICH WAS, AS ARE ALL SEALED BIDS, SUBMITTED IN RESPONSE TO INVITATIONS FOR BIDS, CAREFULLY GUARDED BY GOVERNMENT PERSONNEL UNTIL IT WAS PUBLICLY OPENED AND THE BID PRICES DISCLOSED AND RECORDED. THE ERASURES AND CORRECTIONS OBVIOUSLY WERE MADE PRIOR TO THE TIME THE BID WAS MAILED BY THE BIDDER.'

IN B-148081, MARCH 5, 1962, THERE WERE CONSIDERED A SIMILAR SITUATION. THE BID SUBMITTED BY THE LOW BIDDER IN THAT CASE SHOWED THAT TWO OTHER PRICES HAD BEEN WRITTEN AND CROSSED OUT ON THE BID FORM AND THAT NONE OF THE PRICE CHANGES WERE INITIALED. NOTWITHSTANDING THE INCLUSION IN THE INSTRUCTIONS TO BIDDERS OF THE SAME PROVISION PERTAINING TO ERASURES AND CHANGES AS IS INCLUDED IN PARAGRAPH 1 (B) OF THE TERMS AND CONDITIONS OF THE IMMEDIATE INVITATION AND THE OBVIOUS BEARING THE CHANGES HAD ON PRICE, IN THE CITED DECISION IT WAS STATED:

"IT IS CLEAR FROM THE TERMS ON THE BID FORM--- THAT THE UNDERSIGNED PROPOSES TO PERFORM THE CONTRACT AT THE STATED PRICE--- THAT THE BIDDER HAS MADE A LEGALLY BINDING OFFER, ACCEPTANCE OF WHICH WOULD CONSUMMATE A VALID CONTRACT WHICH THE BIDDER WOULD BE OBLIGED TO PERFORM AT THE OFFERED PRICE. THEREFORE, IN OUR OPINION, THE REQUIREMENT FOR THE INITIALING OF CHANGES IS A MATTER OF FORM THAT COULD BE WAIVED AS AN INFORMALITY IN THIS CASE, SINCE THE BIDDER BY THE TERMS OF THE BID IS OTHERWISE BOUND TO THE OFFER CONTAINED IN THE BID.'

ACCORDINGLY, IN THE CIRCUMSTANCES OF THIS CASE, AN AWARD TO THE LOW BIDDER WOULD BE PROPER.