B-175990, JUN 1, 1972

B-175990, JUN 1, 1972

BID PROTEST - UNSIGNED BID - WAIVER DENIAL OF PROTEST BY KEUFFEL & ESSER COMPANY AGAINST THE PROPOSED AWARD OF A CONTRACT TO RIPCO, INC; UNDER AN IFB ISSUED BY THE U.S. NAVY PURCHASING OFFICE, WASHINGTON, D.C; FOR MICROFILMING AND PHOTOGRAPHIC SERVICES, WHERE RIPCO'S BID WAS UNSIGNED AT OPENING. THE FACT THAT THE PRESIDENT OF RIPCO WAS PRESENT AT BID OPENING AND EXPRESSED A STRONG DESIRE TO SIGN THE BID PRIOR TO DISCLOSURE OF THE OTHER BIDS WILL BRING THIS CASE WITHIN THE EXCEPTIONS OF ASPR 2 405(III). SEE 48 COMP. GEN. 801 (1969). ACCORDINGLY, THE PROTEST IS DENIED.

TO KEUFFEL & ESSER COMPANY:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE PROPOSED AWARD OF A CONTRACT TO RIPCO, INCORPORATED, FOR LOT I UNDER INVITATION FOR BIDS NO. N00600-72-B-0201, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 3, 1972, FOR BIDS ON MICROFILMING AND PHOTOGRAPHIC SERVICES, COVERING 77 ITEMS IN FIVE LOTS AND PROVIDED FOR AWARD ON A LOT BASIS. THE CONTRACT WILL BE PERFORMED WITHIN ONE YEAR. EIGHT BIDS WERE RECEIVED AND OPENED AS SCHEDULED AT 11:00 A.M. ON APRIL 18, 1972. RIPCO WAS THE APPARENT LOW BIDDER ON LOT I AND YOU WERE SECOND LOW. HOWEVER, RIPCO'S BID WAS NOT SIGNED AT THE TIME OF OPENING AND YOU CONTEND IT MAY NOT PROPERLY BE ACCEPTED.

THE NAVY REPORTS THAT IMMEDIATELY PRIOR TO THE BID OPENING TIME, MR. DOUGLAS D. RITTER, PRESIDENT OF RIPCO, HAND CARRIED ITS BID TO THE NPO, DEPOSITED IT IN THE BID BOX AND PROCEEDED TO THE BID OPENING ROOM. AFTER 11:00 A.M. THE BID OPENING OFFICER AND HIS STAFF PROCEEDED TO OPEN AND RECORD BIDS. IT IS REPORTED THAT IMMEDIATELY UPON OPENING RIPCO'S BID THE BID OPENING OFFICER NOTICED THAT IT WAS UNSIGNED AND SO INFORMED MR. RITTER. ACCORDING TO THE CONTRACTING OFFICER'S REPORT, NONE OF THE BIDDERS' NAMES OR BID PRICES HAD BEEN REVEALED TO OTHER THAN THE NAVY STAFF RESPONSIBLE FOR OPENING AND RECORDING THE BIDS. UPON BEING INFORMED OF THE UNSIGNED BID, AND PRIOR TO LEARNING THE NAMES OR PRICES OF THE OTHER BIDDERS, MR. RITTER EXPRESSED CONCERN AND A STRONG DESIRE TO SIGN THE BID. BEFORE REVEALING ANY INFORMATION TO MR. RITTER OR THE OTHER BIDDERS, LEGAL COUNSEL WAS CONSULTED AND MR. RITTER WAS INFORMED THAT HE WOULD NOT BE PERMITTED TO SIGN THE BID AND IT WOULD BE CONSIDERED NONRESPONSIVE. ON MAY 1, 1972, LEGAL COUNSEL RECONSIDERED AND MR. RITTER WAS ADVISED THAT HE COULD SIGN THE BID. IT WAS SIGNED THE FOLLOWING DAY. NO AWARD HAS BEEN MADE PENDING OUR DECISION.

UNDER ARMED SERVICES PROCUREMENT REGULATION 2-405(III), THE CONTRACTING OFFICER SHALL GIVE THE BIDDER AN OPPORTUNITY TO CORRECT THE FAILURE TO SIGN A BID OR WAIVE SUCH DEFICIENCY, 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 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 THE BID IS ACCOMPANIED BY DOCUMENTARY OR OTHER EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. THE REASON FOR THIS REQUIREMENT IS THAT WHEN A BID IS NOT SIGNED, AND THERE IS NO OTHER CLEAR INDICATION IN THE BID SUBMISSION THAT THE PURPORTED BIDDER INTENDED TO SUBMIT THE BID, THE CONTRACTING OFFICER CANNOT BE SURE THAT THE BID WAS SUBMITTED BY SOMEONE WITH AUTHORITY TO BIND THE BIDDER, AND THE ACCEPTANCE OF SUCH A BID MAY NOT AUTOMATICALLY OBLIGATE THE NAMED BIDDER. THE REGULATION AND OUR DECISIONS ARE DIRECTED TO PRECLUDING A BIDDER FROM ELECTING, AFTER BIDS HAVE BEEN OPENED AND PRICES HAVE BEEN REVEALED, WHETHER HE WILL ACKNOWLEDGE OR DENY THE BID, SINCE SUCH AN OPTION WOULD GIVE THE BIDDER AN UNFAIR ADVANTAGE OVER OTHER BIDDERS WHOSE BID PRICES WERE REVEALED AT THE OPENING AND WOULD SOON REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS.

HOWEVER, AS WE STATED IN 48 COMP. GEN. 801 (1969), THERE MAY BE CIRCUMSTANCES WHERE THE FAILURE OF A BIDDER TO SIGN A BID MAY BE WAIVED. IN THAT CASE, ONLY ONE BID WAS RECEIVED AT THE TIME OF BID OPENING BUT THE BID WAS UNSIGNED. A REPRESENTATIVE OF THE COMPANY PRESENT AT THE BID OPENING PROMPTLY OFFERED TO SIGN THE BID. WHILE THIS REQUEST WAS BEING CONSIDERED, ANOTHER BID WAS RECEIVED. IT WAS DETERMINED THAT THIS LATE BID COULD BE CONSIDERED FOR THE AWARD BUT THE UNSIGNED BID WAS LOWER, AND THE CONTRACTING OFFICER PROPOSED TO ACCEPT THE UNSIGNED LOW BID. STATED THAT SINCE THE LOW BIDDER'S REPRESENTATIVE HAD INDICATED AN INTENT TO SIGN THE BID AT A TIME WHEN IT WAS THE ONLY BID RECEIVED, THE QUESTION OF PREJUDICE TO OTHER BIDDERS WAS NOT INVOLVED, AND THE LOW BIDDER SHOULD HAVE BEEN PERMITTED TO SIGN THE BID AT THAT TIME. WE CONCLUDED THAT THE UNSIGNED BID SHOULD BE TREATED AS IF PERMISSION TO SIGN HAD BEEN GRANTED AND, THEREFORE, THE BID SHOULD BE CONSIDERED FOR AWARD.

ALSO, IN B-171618, FEBRUARY 17, 1971, WE CONCLUDED THAT THE BIDDER SHOULD HAVE BEEN PERMITTED TO SIGN THE BID WHERE AT THE BID OPENING THE PRESIDENT OF THE BIDDING FIRM EXPRESSED HIS INTENTION TO BE BOUND BY THE UNSIGNED BID PRIOR TO HAVING HEARD THE PRICES OF THE OTHER BIDDERS. WE HELD IN THAT CASE THAT THE DEPOSITING OF THE UNSIGNED BID BY THE FIRM'S PRESIDENT EVIDENCED A CLEAR INTENT OF THE BIDDER TO BE BOUND BY THE BID. SIMILARLY, WE BELIEVE THAT THE DEPOSITING OF THE BID IN THE BID BOX BY RIPCO'S PRESIDENT EVIDENCED RIPCO'S CLEAR INTENT TO BE BOUND, ELIMINATING ANY OPTION TO AVOID LIABILITY FOR PERFORMANCE IN ACCORDANCE WITH THE BID, WHICH THE GENERAL RULE IS DESIGNED TO PREVENT.

ACCORDINGLY, YOUR PROTEST IS DENIED.