B-150459, MAR. 6, 1963

B-150459, MAR. 6, 1963

TO THE CASTLE TOOL SPECIALTY COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11, 1962, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AMC -20-113-63-254/T) ISSUED BY THE U.S. ARMY TANK AUTOMOTIVE CENTER, CENTER LINE, MICHIGAN, ON SEPTEMBER 17, 1962.

UNDER THE CITED INVITATION BIDS WERE SOLICITED--- TO BE OPENED OCTOBER 15, 1962--- FOR FURNISHING, ON AN F.O.B. DESTINATION BASIS, 336 PUMP ASSEMBLIES. BIDDERS WERE ADVISED THAT BIDS SUBMITTED ON AN F.O.B. ORIGIN BASIS WOULD BE CONSIDERED NONRESPONSIVE. ON PAGE 3B OF THE INVITATION FORM PROVISION WAS MADE FOR INDICATING THE F.O.B. POINT OF DELIVERY BY THE BIDDER INSERTING AN "X" IN THE BLOCK OPPOSITE (A) THE PHRASE "F.O.B. DESTINATION; " OR (B) OPPOSITE THE PHRASE "AT THE GOVERNMENT'S OPTION F.O.B. CARRIERS EQUIPMENT, WHARF OR FREIGHT STATION AT OR NEAR CONTRACTOR'S PLANT.' YOU PLACED AN "X" IN THE BLOCK OPPOSITE THE PHRASE "AT THE GOVERNMENT'S OPTION F.O.B. CARRIERS EQUIPMENT, WHARF OR FREIGHT STATION AT OR NEAR CONTRACTOR'S PLANT.' YOUR BID WAS THE LOWEST RECEIVED. ON NOVEMBER 29, 1962, THE SECOND LOW BIDDER, SZEMCO, INC., WAS AWARDED THE CONTRACT. ON DECEMBER 4, 1962, YOU WERE NOTIFIED THAT YOUR BID WAS CONSIDERED NONRESPONSIVE TO THE INVITATION FOR BIDS IN THAT YOU HAD QUOTED ON AN F.O.B. ORIGIN BASIS IN LIEU OF AN F.O.B. DESTINATION BASIS. IN YOUR LETTER OF DECEMBER 11, 1962, YOU INSIST THAT YOUR BID WAS ON AN F.O.B. DESTINATION BASIS WITH AN OPTION ON THE PART OF THE GOVERNMENT TO TAKE THE EQUIPMENT ON AN F.O.B. CARRIER'S FREIGHT STATION BASIS.

ALTHOUGH YOU STATE IN YOUR LETTER OF DECEMBER 11, 1962, THAT THERE WAS A TYPOGRAPHICAL ERROR ON YOUR PART IN PLACING AN "X" OPPOSITE THE PHRASE "AT THE GOVERNMENT'S OPTION F.O.B. CARRIERS EQUIPMENT, WHARF OR FREIGHT STATION AT OR NEAR CONTRACTOR'S PLANT" NEVERTHELESS IN CONSIDERING YOUR BID IN ITS ENTIRETY IT IS CLEAR THAT ON PAGE 3 OF THE INVITATION YOU HAD QUOTED A UNIT PRICE OF $28.94 "F.O.B. DESTINATION" AND ON PAGE 3B THERE WAS AN "X" IN THE BLOCK OPPOSITE THE PHRASE "F.O.B. DESTINATION.' AGREE WITH YOUR CONTENTION THAT THE REASONABLE INTERPRETATION OF YOUR BID AS SUBMITTED WAS THAT YOU QUOTED A UNIT PRICE OF $28.94, F.O.B. DESTINATION, LEAVING THE GOVERNMENT THE OPTION OR ALTERNATIVE TO TAKE THE MATERIAL F.O.B. YOUR PLANT. THE FACT THAT A BIDDER OFFERS THE GOVERNMENT AN ALTERNATIVE DOES NOT REQUIRE REJECTION OF BID WHICH IS OTHERWISE RESPONSIVE TO THE INVITATION. ACCORDINGLY, THIS MATTER CANNOT BE REGARDED AS HAVING BEEN SUFFICIENT BASIS FOR REJECTING YOUR BID. HOWEVER, YOUR BID PROPERLY COULD NOT BE ACCEPTED FOR THE FOLLOWING REASONS.

THE ADMINISTRATIVE OFFICE REPORTS THAT WHEN YOUR BID WAS RECEIVED IT WAS NOTED THAT THE BID HAD BEEN PREPARED FOR SIGNATURE OF MR. CARL S. ALESSI, ADMINISTRATIVE ASSISTANT TO THE PRESIDENT. MR. ALESSI'S SIGNATURE DID NOT APPEAR ON THE BID WHEN SUBMITTED. THE PLACE FOR SIGNATURE WAS, HOWEVER, STAMPED WITH A RUBBER FACSIMILE OF HIS SIGNATURE. AFTER THE OPENING OF BIDS MR. ALESSI WAS PERMITTED TO AFFIX HIS HANDWRITTEN SIGNATURE.

PARAGRAPH 2-405/III) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT A BIDDER SHALL BE GIVEN AN OPPORTUNITY TO CORRECT THE FAILURE TO SIGN HIS BID ONLY IF---

"/A) THE FIRM SUBMITTING THE BID HAS FORMALLY ADOPTED OR AUTHORIZED THE EXECUTION OF DOCUMENTS BY TYPEWRITTEN, PRINTED, OR RUBBER STAMPED SIGNATURE AND SUBMITS EVIDENCE OF SUCH AUTHORIZATION AND THE BID CARRIES SUCH A SIGNATURE, OR

"/B) THE UNSIGNED BID IS ACCOMPANIED BY OTHER MATERIAL INDICATING THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT SUCH AS THE SUBMISSION OF A BID GUARANTEE WITH BID, OR A LETTER SIGNED BY THE BIDDER WITH THE BID REFERRING TO AND CLEARLY IDENTIFYING THE BID ITSELF; "

THIS REGULATION IS IN ACCORD WITH THE DECISIONS OF OUR OFFICE IN WHICH WE HAVE HELD THAT THE ONLY MANUALLY UNSIGNED BIDS BEARING A TYPEWRITTEN, PRINTED OR RUBBER-STAMPED SIGNATURE THAT MAY BE CONSIDERED FOR AWARD ARE THOSE ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. 36 COMP. GEN. 523 AND 34 ID. 439. SEE IN THIS CONNECTION TABAS V. EMERGENCY FLEET CORPORATION, 9 F.2D 648.

THE TEST IN CASES WHERE THE BIDS ARE NOT MANUALLY SIGNED IS WHETHER THE BID AS SUBMITTED WILL RESULT IN A BINDING CONTRACT UPON THE ACCEPTANCE OF THE BID BY THE GOVERNMENT WITHOUT CONFIRMATION OF THE BIDDER'S INTENTION. IF THE BIDDER CHOOSES TO REMAIN SILENT AFTER THE OPENING OF BIDS HE COULD DISAVOW THE BID BECAUSE OF THE ABSENCE OF A SIGNATURE.

THIS WOULD PLACE HIM IN A POSITION TO MAKE AN ELECTION EITHER TO ABIDE BY HIS BID OR TO CLAIM THAT THE BID WAS SUBMITTED IN ERROR BY A PERSON WITHOUT AUTHORITY TO ENTER INTO CONTRACTS ON BEHALF OF THE BIDDER. THIS WOULD GIVE HIM MORE THAN ONE CHANCE UNDER THE SAME INVITATION. 40 COMP. GEN. 393, 394-395.

SINCE YOUR BID DID NOT CONTAIN A MANUAL SIGNATURE AND THE INTENTION TO SUBMIT A VALIDLY BINDING OFFER WAS NOT THEN OTHERWISE CLEAR, YOUR BID COULD NOT BE CONSIDERED FOR POSSIBLE AWARD.