B-155049, AUG. 31, 1964

B-155049, AUG. 31, 1964

TO MR. OSBORNE KEORNER, DIRECTOR, GENERAL SERVICES DIVISION, FEDERAL HOUSING ADMINISTRATION:

BY LETTER DATED AUGUST 21, 1964, WITH ENCLOSURES, YOU REQUESTED OUR DECISION AS TO WHETHER THE LOW BID OF ASSOCIATED BROKERS OF YUBA SUTTER COUNTIES MAY BE CONSIDERED FOR AWARD UNDER INVITATION FOR BIDS NO. 65-35 DATED AUGUST 4, 1964.

THE INVITATION REQUESTED BIDS FOR THE MANAGEMENT, OPERATION, REPAIR, MAINTENANCE, AND RENTAL OF FEDERAL HOUSING ADMINISTRATION PROPERTIES IDENTIFIED AS MARYSVILLE-YUBA CITY AREA, MARYSVILLE, CALIFORNIA. YOU REPORT THAT WHEN BIDS WERE OPENED ON AUGUST 18, 1964, IT WAS NOTED THAT THE BID FORM, FHA FORM 2, OF THE LOW BIDDER WAS NOT SIGNED. THE NAME AND ADDRESS OF THE BIDDER WAS TYPED ON THE BID FORM, TOGETHER WITH THE TITLE OF THE PERSON AUTHORIZED TO SIGN AS CO-PARTNER FOR THE BIDDER WHICH IS STATED TO BE A PARTNERSHIP. HOWEVER, THE COVER SHEET OF THE INVITATION WHICH BEARS THE EQUAL OPPORTUNITY REPRESENTATION REQUIRED BY EXECUTIVE ORDER NO. 10925 AND THE INVITATION FOR BID NUMBER WAS EXECUTED AND DATED BY MR. N. PAUL HANSEN WHO IS A PARTNER IN THE FIRM OF THE LOW BIDDER.

SECTION 1-2.405 (C) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES THAT A BIDDER MAY BE GIVEN AN OPPORTUNITY TO CURE A DEFICIENCY RESULTING FROM A FAILURE TO SIGN ITS BID "ONLY IF THE UNSIGNED BID IS ACCOMPANIED BY OTHER MATERIAL INDICATING THE BIDDER'S INTENTION TO BE BOUND BY THE UNSIGNED BID DOCUMENT, SUCH AS A BID GUARANTEE, OR A LETTER SIGNED BY THE BIDDER REFERRING TO AND CLEARLY IDENTIFYING THE BID ITSELF.'

THE ACTUAL TEST IN CASES LIKE THIS IS WHETHER THE BID AS SUBMITTED WILL RESULT IN A BINDING CONTRACT UPON ACCEPTANCE OF THE BID WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF ITS INTENTION. 36 COMP. GEN. 523; B- 153112, FEBRUARY 13, 1964. IN OTHER WORDS, THE QUESTION IS WHETHER THE DOCUMENTS OR CIRCUMSTANCES ACCOMPANYING THE SUBMISSION OF THE UNSIGNED BID WOULD CLEARLY AND CONVINCINGLY OVERCOME ANY ATTEMPT BY THE BIDDER TO DISAVOW THE BID AND TO UPSET THE AWARD MADE TO IT ON THE GROUND THAT AN AUTHORIZED SIGNATURE ON THE BID WAS ABSENT.

IN THE CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT THE VOLUNTARY SUBMISSION OF THE LOW BID ACCOMPANIED BY THE EXECUTED AND DATED EQUAL EMPLOYMENT OPPORTUNITY REPRESENTATION, WHICH NOT ONLY CLEARLY IDENTIFIES THE SUBJECT INVITATION BUT IS ATTACHED THERETO AS THE COVER SHEET, SATISFACTORILY ESTABLISHES THE LOW BIDDER'S INTENTION TO BE BOUND BY ITS UNSIGNED BID. B-148176 DATED APRIL 19, 1962.

ACCORDINGLY, THE LOW UNSIGNED BID OF ASSOCIATED BROKERS OF YUBA SUTTER COUNTIES MAY BE CONSIDERED FOR AWARD IF OTHERWISE PROPER. WHILE WE NOT THAT THE LOW BIDDER FAILED ALSO TO GIVE THE FULL NAMES OF ALL PARTNERS AS REQUIRED BY THE NOTE OF FHA FORM 2, THIS OMISSION APPEARS TO BE AN INFORMALITY WHICH MAY BE WAIVED UNDER PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION. SEE FPR 1-2.405.