B-178540, MAY 8, 1974

B-178540, MAY 8, 1974

MARTIN COMPANY, SOLE PROPRIETORSHIP, COULD NOT PROPERLY BE SUBSTITUTED FOR "MARTIN CO., INC.," IN WHOSE NAME LOW BID WAS EXECUTED, SINCE AWARD TO ANYONE OTHER THAN BIDDER NAMED IN BID WOULD BE IMPROPER SUBSTITUTION OF ENTITIES.

TO MARTIN COMPANY:

INVITATION FOR BIDS (IFB) F41608-73-B-0808 WAS ISSUED BY THE DEPARTMENT OF THE AIR FORCE, DIRECTORATE OF PROCUREMENT AND PRODUCTION, SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, FOR FLIGHT CHECKLIST HOLDERS.

THE LOW BID, EXECUTED BY "TERRY L. MARTIN, VICE PRESIDENT," WAS SUBMITTED IN THE NAME OF THE "MARTIN CO., INC." THE BID CERTIFIED THAT THE FIRM WAS A CORPORATION INCORPORATED IN THE STATE OF OKLAHOMA. A PREAWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO), OKLAHOMA CITY, OKLAHOMA. THE PREAWARD SURVEY REPORT CONCLUDED THAT THERE WAS NO "MARTIN CO., INC.," AT THE ADDRESS INDICATED IN THE BID AND THAT THE "MARTIN CO., INC.," WHICH SUBMITTED THE BID DID NOT LEGALLY EXIST AS A CORPORATION, BUT WAS, IN FACT, A SOLE PROPRIETORSHIP. CORPORATION DID EXIST AS "MARTIN CO., INC.," AT A DIFFERENT ADDRESS. HOWEVER, MR. TERRY MARTIN WAS NOT AUTHORIZED TO BID FOR SUCH CORPORATION. CONSIDERATION WAS GIVEN AS TO WHETHER AN AWARD COULD BE MADE TO MARTIN COMPANY IN ITS NON-CORPORATE STATUS. A DETERMINATION WAS MADE THAT THE BID OF MARTIN COMPANY WAS NOT ENFORCEABLE AND THAT AN AWARD TO THAT FIRM WOULD BE AN IMPROPER SUBSTITUTION OF BIDDERS. CONSEQUENTLY, NO AWARD WAS MADE TO THAT FIRM. THE MARTIN COMPANY PROTESTED TO OUR OFFICE THE REFUSAL OF THE AIR FORCE TO MAKE AN AWARD TO IT.

THE ISSUE RAISED IS WHETHER AN AWARD SHOULD HAVE BEEN MADE TO MARTIN COMPANY EVEN THOUGH THE BID WAS SIGNED SHOWING A CORPORATE STATUS RATHER THAN A SOLE PROPRIETORSHIP. A CORPORATION IS A DIFFERENT ENTITY THAN A SOLE PROPRIETORSHIP. IN 33 COMP. GEN. 549, 550 (1954), IT WAS POINTED OUT THAT THE ADVERTISING STATUTES REQUIRE THAT AN "AWARD BE MADE 'TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'," AND THAT AN AWARD TO ANYONE OTHER THAN THE BIDDER NAMED IN THE BID WOULD BE AN IMPROPER SUBSTITUTION OF ENTITIES. AS STATED IN 41 COMP. GEN. 61 (1961), A CONTRACT CANNOT BE AWARDED TO AN ENTITY OTHER THAN THAT WHICH SUBMITTED THE BID. THEREFORE, THE CONTRACTING OFFICE ACTED PROPERLY WHEN IT REFUSED TO PERMIT THE SUBSTITUTION OF THE MARTIN COMPANY FOR THE BIDDER NAMED IN THE BID, THE "MARTIN CO., INC."

ACCORDINGLY, THE PROTEST IS DENIED.