B-153112, FEB. 13, 1964

B-153112, FEB. 13, 1964

TO MR. NOAH GOLDSTEIN:

BY LETTER DATED DECEMBER 18, 1963, YOU PROTESTED, ON BEHALF OF THE LEN- AIR SHEET METAL WORKS, INC., AGAINST THE AWARD MADE TO MORRIS PARK CONTRACTING CO., INC., UNDER SPECIFICATION NO. 50860/63, DATED NOVEMBER 5, 1963, COVERING SHEET METAL WORK AT THE NEW YORK NAVAL BASE.

TEN BIDS WERE RECEIVED AND OPENED ON NOVEMBER 21, 1963, AND IT APPEARED THAT MORRIS PARK SUBMITTED THE LOWEST BID IN THE AMOUNT OF $19,700. LEN- AIR SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $19,990. PARAGRAPH 1.22 ON PAGE 10 OF THE SPECIFICATION PROVIDED:

"1.22 PERFORMANCE OF WORK BY CONTRACTOR.--- THE CONTRACTOR SHALL PERFORM ALL THE SHEET METAL FABRICATION AND INSTALLATION WORK WITH HIS OWN ORGANIZATION. THE CONTRACTOR SHALL PRODUCE EVIDENCE OF HAVING SUCCESSFULLY MADE SHEET METAL INSTALLATIONS OF SIMILAR TYPE, EXCEPT FOR SIZE, FOR A PERIOD OF 5 YEARS UNDER SIMILAR CONDITIONS.'

HOWEVER, MORRIS PARK ADVISED IN ITS QUESTIONNAIRE THAT 80 PERCENT OF THE WORK WOULD BE SUBCONTRACTED TO NU-ART SHEET METAL AND ROOFING CO., INC. YOU THEREFORE CONTEND THAT MORRIS PARK'S BID WAS NONRESPONSIVE AND THAT AWARD TO THIS BIDDER WAS IMPROPER. THE CONTRACTING AGENCY HAS ADVISED US THAT THE USE OF ABOVE CLAUSE WAS UNAUTHORIZED AND WAS INCLUDED IN THE INVITATION THROUGH INADVERTENCE BECAUSE THERE WAS NO BASIS FOR CONCLUDING THAT THE SHEET METAL WORK HAD TO BE PERFORMED BY THE CONTRACTOR RATHER THAN BY A SUBCONTRACTOR.

SINCE MORRIS PARK INDICATED IN ITS BID ITS INTENTION NOT TO COMPLY WITH PARAGRAPH 1.22 OF THE SPECIFICATIONS, WE AGREE THAT ITS BID WAS NONRESPONSIVE TO THE INVITATION. HOWEVER, AS ABOVE INDICATED, THE CLAUSE WAS INCLUDED IN THE INVITATION THROUGH ERROR, AND ITS INCLUSION THEREIN DOES NOT APPEAR TO HAVE SUBSTANTIALLY RESTRICTED COMPETITION SINCE 10 BIDS WERE RECEIVED. IN VIEW THEREOF AND SINCE THE PROCUREMENT AGENCY ADVISES THAT MORRIS PARK HAS SUBSTANTIALLY PERFORMED ITS CONTRACT TO THE SATISFACTION OF THE AGENCY, IT WOULD NOT BE IN THE INTEREST OF THE GOVERNMENT TO CANCEL THE CONTRACT. WE ARE, HOWEVER, ADVISING THE PROCUREMENT AGENCY THAT APPROPRIATE STEPS SHOULD BE TAKEN TO PRECLUDE A RECURRENCE OF THIS SITUATION.

WHILE NOT PERTINENT TO THE PROTEST OF LEN-AIR, WE BELIEVE THAT IT IS PROPER TO POINT OUT THAT ITS BID COULD NOT HAVE BEEN CONSIDERED FOR AWARD IN ANY EVENT. NOT ONLY DID LEN-AIR FAIL TO SIGN ITS BID, THE BID DOES NOT CONTAIN EITHER THE PRINTED OR TYPEWRITTEN NAME OF THE BIDDER. NEITHER WERE THE TWO CASHIER'S CHECKS ACCOMPANYING THE BID AS GUARANTEE SIGNED OR OTHERWISE ENDORSED BY LEN-AIR TO INDICATE ITS INTENTION TO SUBMIT A VALID BID. 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 THE BID, BUT 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; "

THE ACTUAL TEST IN CASES LIKE THIS IS WHETHER THE BID AS SUBMITTED WILL EFFECT A BINDING CONTRACT UPON ITS ACCEPTANCE WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. 36 COMP. GEN. 523; B 148235, MARCH 23, 1962; B-144185, JANUARY 25, 1961; B-131767, JUNE 20, 1957; B-124029, JUNE 1, 1955.