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B-166190, MARCH 25, 1969, 48 COMP. GEN. 648

B-166190 Mar 25, 1969
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WHICH WAS HAND DELIVERED BY THE PRESIDENT WHO SIGNED THE SEALED ENVELOPE TO SHOW DELIVERY BY HIM. THE ENVELOPE ALSO REFLECTING THE TIME AND DATE THE BID WAS RECEIVED AND BY WHOM. IS FOR CONSIDERATION PURSUANT TO PARAGRAPH 2 405 (III) (B) OF THE ARMED SERVICES PROCUREMENT REGULATION PRESCRIBING THAT AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY DOCUMENTARY EVIDENCE SHOWING CLEAR INTENT TO SUBMIT A BINDING BID. 1969: REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 14. THE LOWEST BID OPENED WAS ONE BEARING THE NAME "TRENTON TEXTILE ENG. & MFG. " WAS BLANK AND NO WRITTEN SIGNATURE APPEARED ELSEWHERE ON THE BID FORM. WAS REMOVED AT THE BID OPENING FROM A SEALED ENVELOPE (WHICH HAS BEEN PRESERVED WITH THE BID) ADDRESSED TO THE PROCURING ACTIVITY.

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B-166190, MARCH 25, 1969, 48 COMP. GEN. 648

BIDS--UNSIGNED--EVIDENCE OF BIDDER'S INTENT TO BE BOUND A LOW UNSIGNED BID EVIDENCING IN TYPE THE NAME OF THE CORPORATION PRESIDENT AS THE PERSON AUTHORIZED TO SIGN THE BID, WHICH WAS HAND DELIVERED BY THE PRESIDENT WHO SIGNED THE SEALED ENVELOPE TO SHOW DELIVERY BY HIM, THE ENVELOPE ALSO REFLECTING THE TIME AND DATE THE BID WAS RECEIVED AND BY WHOM, IS FOR CONSIDERATION PURSUANT TO PARAGRAPH 2 405 (III) (B) OF THE ARMED SERVICES PROCUREMENT REGULATION PRESCRIBING THAT AN UNSIGNED BID MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY DOCUMENTARY EVIDENCE SHOWING CLEAR INTENT TO SUBMIT A BINDING BID, AND THE PRESIDENT'S SIGNATURE ON THE BID ENVELOPE CONSTITUTES EVIDENCE OF SUCH INTENT. IDENTIFICATION OF THE PRESIDENT AS THE PERSON AUTHORIZED TO SIGN THE BID, PERSONAL DELIVERY OF THE BID BY HIM, TOGETHER WITH HIS SIGNATURE ON THE BID ENVELOPE PRECLUDE THE POSSIBILITY OF BID REPUDIATION OR AVOIDANCE OF LIABILITY ON A CONTRACT.

TO THE INTERSTATE MANUFACTURING COMPANY, MARCH 25, 1969:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 14, 1969, AND SUBSEQUENT CORRESPONDENCE IN WHICH YOU PROTEST AGAINST ANY AWARD TO TRENTON TEXTILE ENGINEERING AND MANUFACTURING COMPANY, INC; UNDER INVITATION FOR BIDS (IFB) NO. DSA-100-69-B-1145, ISSUED ON JANUARY 22, 1969, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA. TRENTON TEXTILE SUBMITTED THE LOWEST BID OF THE NINE COMPANIES RESPONDING TO THE INVITATION.

THE LOWEST BID OPENED WAS ONE BEARING THE NAME "TRENTON TEXTILE ENG. & MFG. CO; INC." TYPED IN BOX 17 OF THE FIRST PAGE OF THE BID FORM, HEADED "OFFEROR NAME & ADDRESS," AND THE NAME "MARIO R. D'ANTONIO, PRESIDENT" TYPED IN BOX 18, HEADED "NAME AND TITLE OF PERSON AUTHORIZED TO SIGN OFFER." BLOCK 19, "SIGNATURE," WAS BLANK AND NO WRITTEN SIGNATURE APPEARED ELSEWHERE ON THE BID FORM. THIS BID, HOWEVER, WAS REMOVED AT THE BID OPENING FROM A SEALED ENVELOPE (WHICH HAS BEEN PRESERVED WITH THE BID) ADDRESSED TO THE PROCURING ACTIVITY, BEARING IN THE UPPER LEFT HAND CORNER THE NAME "TRENTON TEXTILE ENGINEERING & MANUFACTURING CO; INC." AND ITS ADDRESS, AND IN THE LOWER LEFT HAND CORNER THE WORDS "RE: IFB DSA 100-69-B -1145 OPENING DATE: 11 FEBRUARY 1969 CLOSING TIME: 2:00 P.M. EST."

ACROSS THE FACE OF THE ENVELOPE THERE APPEARED THE FOLLOWING:

TIME REC'D 11:00

DATE REC'D 11 FEB-69

REC'D BY AMY SOLIPACA

DELIVERED BY M. R. D'ANTONIO

THE TIME, DATE, AND NAMES WERE HANDWRITTEN ON THE LINES INCLUDED ON WHAT APPEARS TO HAVE BEEN A RUBBER STAMP IMPRESSION OF THE REST OF THE QUOTED INSCRIPTION. THE NAMES ARE ESTABLISHED AS HANDWRITTEN SIGNATURES BY THE STATEMENT OF MRS. SOLIPACA, WHO WAS A PROCUREMENT SERVICES REPRESENTATIVE AT THE CENTER, ON DUTY AT THE TIME SHOWN AT THE PLACE DESIGNATED IN THE SOLICITATION FOR RECEIPT OF HAND-CARRIED BIDS---NAMELY, "RECEPTIONIST'S DESK, 2ND FLOOR, BLDG. 12." HER STATEMENT IS THAT THE SEALED ENVELOPE WAS HANDED TO HER BY MR. D'ANTONIO AS A BID, THAT SHE STAMPED IT AS QUOTED ABOVE, FILLED IN THE HOUR AND DATE AND HER SIGNATURE, HAD MR. D'ANTONIO SIGN HIS NAME, AND DEPOSITED THE ENVELOPE IN THE BID BOX.

SOLICITATION INSTRUCTIONS AND CONDITIONS NO. 2 (B) PROVIDED AS FOLLOWS:

EACH OFFEROR SHALL FURNISH THE INFORMATION REQUIRED BY THE SOLICITATION. THE OFFEROR SHALL SIGN THE SOLICITATION AND PRINT OR TYPE HIS NAME ON THE SCHEDULE AND EACH CONTINUATION SHEET THEREOF ON WHICH HE MAKES AN ENTRY. ERASURES OR OTHER CHANGES MUST BE INITIALED BY THE PERSON SIGNING THE OFFER. OFFERS SIGNED BY AN AGENT ARE TO BE ACCOMPANIED BY EVIDENCE OF HIS AUTHORITY UNLESS SUCH EVIDENCE HAS BEEN PREVIOUSLY FURNISHED TO THE ISSUING OFFICE. YOU MAINTAIN THAT MR. D'ANTONIO'S FAILURE TO SIGN THE OFFER SHOULD REQUIRE REJECTION OF THE COMPANY'S BID AS A MATERIAL DEVIATION RENDERING THE OFFER NONRESPONSIVE.

TRENTON TEXTILE MAINTAINS THAT THE PERSONAL DELIVERY OF ITS BID BY MR. D'ANTONIO TO THE PROCURING ACTIVITY AND HIS SIGNATURE ON THE BID ENVELOPE, AS WITNESSED BY THE INSTALLATION'S PROCUREMENT SERVICES REPRESENTATIVE, CONSTITUTES SUFFICIENT EVIDENCE UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 (III) (B), QUOTED AS FOLLOWS, TO ALLOW THE COMPANY TO CORRECT ITS FAILURE TO SIGN THE BID:

MINOR INFORMALITIES OR IRREGULARITIES IN BIDS. A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM OR IS SOME IMMATERIAL VARIATION FROM THE EXACT REQUIREMENTS OF THE INVITATION FOR BIDS, HAVING NO EFFECT OR MERELY A TRIVIAL OR NEGLIGIBLE EFFECT ON PRICE, AND NO EFFECT ON QUALITY, QUANTITY, OR DELIVERY OF THE SUPPLIES OR PERFORMANCE OF THE SERVICES BEING PROCURED, AND THE CORRECTION OR WAIVER OF WHICH WOULD NOT AFFECT THE RELATIVE STANDING OF, OR BE OTHERWISE PREJUDICIAL TO, BIDDER. THE CONTRACTING OFFICER SHALL EITHER GIVE TO THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID, OR, WAIVE ANY SUCH DEFICIENCY WHERE IT IS TO THE ADVANTAGE OF THE GOVERNMENT. EXAMPLES OF MINOR INFORMALITIES OR IRREGULARITIES INCLUDE:

(III) FAILURE OF A BIDDER TO SIGN HIS 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 ABOVE CITED ADMINISTRATIVE REGULATION IS IN ACCORD WITH THE DECISIONS OF OUR OFFICE IN WHICH WE HAVE HELD THAT UNSIGNED BIDS MAY NOT BE CONSIDERED FOR AWARD UNLESS ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BINDING BID, SO THAT A VALID CONTRACT WOULD BE EFFECTED UPON THE GOVERNMENT'S ACCEPTANCE OF THE OFFER WITHOUT RESORT TO THE BIDDER FOR CONFIRMATION OF HIS INTENTION. 17 COMP. GEN. 497; 36 ID. 523. ADDITIONALLY, WE HAVE IMPLIED THAT THERE MAY BE CIRCUMSTANCES WHERE THE ACT OF THE INDIVIDUAL SUBMITTING THE BID UNACCOMPANIED BY DOCUMENTARY EVIDENCE WOULD CONSTITUTE AN ADEQUATE INDICATION OF AN INTENT TO OFFER A FIRM BID. B-148235, MARCH 23, 1962. THE SUBJECT CASE WE BELIEVE MR. D'ANTONIO'S SIGNATURE ON THE BID ENVELOPE CONSTITUTES SUFFICIENT DOCUMENTARY EVIDENCE UNDER ASPR 2-405 (III) (B) TO ALLOW CONSIDERATION OF THE COMPANY'S BID. SINCE MR. D'ANTONIO WAS IDENTIFIED IN BLOCK 18 AS THE CORPORATE OFFICIAL AUTHORIZED TO SIGN TRENTON'S BID, HIS PERSONAL DELIVERY OF THE BID TO THE PROCURING ACTIVITY, TOGETHER WITH HIS SIGNATURE ON THE ENVELOPE, WOULD APPEAR TO BE ADEQUATE EVIDENCE TO PRECLUDE ANY POSSIBILITY OF THE CORPORATION BEING ABLE TO REPUDIATE THE BID OR TO AVOID LIABILITY ON THE CONTRACT CONSUMMATED BY ITS ACCEPTANCE.

WITH RESPECT TO THE RECENT RULING OF THE COURT OF APPEALS IN SUPERIOR OIL COMPANY ET AL. V. UDALL AND UNION OIL COMPANY OF CALIFORNIA, C.A.D.C.NOS. 22,192 AND 22,194, CONCERNING THE EFFECT OF THE UNION OIL COMPANY'S FAILURE TO SIGN ITS BID, WE BELIEVE THIS DECISION IS INAPPOSITE TO THE CIRCUMSTANCES OF THE INSTANT CASE. IN THE SUPERIOR OIL CASE THE COURT HELD THAT AN INTERIOR DEPARTMENT PROCUREMENT REGULATION GOVERNING THE SALE IN QUESTION AND REQUIRING THE MANUAL SIGNING OF ALL BIDS PREVENTED CONSIDERATION OF THE COMPANY'S OFFER, NOTWITHSTANDING THE PRESENCE OF OTHER EVIDENCE INDICATING UNION OIL'S INTENTION TO SUBMIT A FIRM BID. THE COURT REJECTED THE SECRETARY OF INTERIOR'S ARGUMENT THAT CERTAIN DECISIONS OF THE FEDERAL COURTS AND OUR OFFICE PERMITTED CONSIDERATION OF SUCH EVIDENCE, ON THE GROUND THAT THE DEPARTMENTAL REGULATION DID NOT CONTAIN A PROVISION AUTHORIZING ADMISSION OF SUCH DATA, UNLIKE THE REGULATIONS GOVERNING THE CASES CITED BY THE SECRETARY. FURTHERMORE,THE PRINCIPAL THESIS OF THE COURT'S DECISION APPEARS TO HAVE BEEN THAT THE CONTRACTING OFFICER'S REJECTION OF THE UNSIGNED BID WAS FINAL AND NOT SUBJECT TO REVIEW BY THE SECRETARY, AND THE GOVERNMENT'S DEPOSIT AND RETENTION OF THE NEXT BIDDER'S BID DEPOSIT COMMITTED THE GOVERNMENT TO AWARD TO THAT BIDDER. IN THE PRESENT CASE THE CONTRACTING OFFICER HAS NOT REJECTED THE TRENTON BID, BUT PROPOSES TO WAIVE THE DEFECT AND ACCEPT IT.

SINCE IN OUR VIEW THE FACTS FALL WITHIN THE TERMS OF ASPR 2-405 (III) (B), WE FIND NO BASIS TO DISAPPROVE THE CONTRACTING OFFICER'S PROPOSED ACTION, YOUR PROTEST MUST BE DENIED.

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