B-243582, Aug 7, 1991, 91-2 CPD ***
B-243582: Aug 7, 1991
The facsimile portion of the bid was submitted by a person and not transmitted via electronic equipment. Tomahawk alleges that Slates' apparent low bid should have been rejected as nonresponsive. The solicitation was issued on January 30. Were timely received on March 27. Asked the bid opening officer if facsimile bids were acceptable and stated that if they were not. "I might as well withdraw my bid right now." /1/ While this discussion was occurring bid opening time arrived. Slates was the apparent low bidder with a bid of $3. Tomahawk was the apparent second low bidder with a bid of $3. The government estimate was $3. Slates' hand-carried bid was contained in a sealed envelope marked and identified with the bidder's name.
B-243582, Aug 7, 1991, 91-2 CPD ***
PROCUREMENT - Bid Protests - GAO procedures - Interested parties DIGEST: 1. Protester has no standing to assert that agency improperly refused to permit a competitor to withdraw its bid, and competitor's expressions of concern that its proposal might be nonresponsive did not constitute withdrawal of its bid. PROCUREMENT - Sealed Bidding - Invitations for bids - Amendments - Acknowledgment - Waiver 2. A bidder's submission of photocopies and facsimile copies of portions of its bid does not render its bid nonresponsive and may be waived as a minor informality where accompanying amendments, a letter and a bid bond contained original signatures clearly evidencing an intent to be bound, and the facsimile portion of the bid was submitted by a person and not transmitted via electronic equipment.
Tomahawk Construction Co.:
Tomahawk Construction Co. protests the award of a contract to Slates Construction Co. under invitation for bids (IFB) No. DACW41-90-B-0021 issued by the Department of the Army for construction of an alternate water supply system. Tomahawk alleges that Slates' apparent low bid should have been rejected as nonresponsive.
We dismiss the protest in part and deny it in part.
The solicitation was issued on January 30, 1991, for the construction of an alternative water supply system in Cherokee County, Kansas. Three bids, including Slates' hand-carried bid, were timely received on March 27. Shortly before the time set for bid opening, an individual, later identified as the president of Slates, asked the bid opening officer if facsimile bids were acceptable and stated that if they were not, "I might as well withdraw my bid right now." /1/ While this discussion was occurring bid opening time arrived. Since the bid opening officer did not construe the remarks of Slates' representative as withdrawing Slates' bid, she proceeded to open all the bids and prepare a bid abstract. Slates was the apparent low bidder with a bid of $3,164,694; Tomahawk was the apparent second low bidder with a bid of $3,575,000. The government estimate was $3,651,558,000.
At the time of bid opening, Slates' hand-carried bid was contained in a sealed envelope marked and identified with the bidder's name, address, and solicitation number. The bid package contained: original signed copies of Parts A and B of the solicitation; /2/ an original signed acknowledgment of solicitation amendments No. 1 and 2; an original of Slates' signed and executed bid bond; and a signed letter dated March 27, 1991, from Slates agreeing to furnish an industrial hygienist and a safety officer on the project. Slates' bid package also contained a photocopied acknowledgement of solicitation amendment No. 3 and facsimile copies of signed Standard Forms 1442. /3/
The Army reviewed Slates' bid to determine whether it was responsive since Slates had not provided original signatures on every bid document. The agency determined that Slates' bid clearly evidenced its intent to be bound due to the original signatures on two of the amendments, the bid bond and the March 27 letter and concluded that Slates' submission of nonoriginal copies of the other portions of the bid could be waived as a minor informality.
Tomahawk orally informed the agency on April 1 that it intended to protest any award to Slates on the ground that Slates' bid should be rejected as nonresponsive. On April 2, the agency formally awarded the contract to Slates, and on April 9, Tomahawk filed this protest in our Office.
Tomahawk protests that the agency improperly awarded the contract to Slates in the face of Tomahawk's threat to file a formal protest, that the agency improperly denied Slates the right to withdraw its bid, and that Slates' bid should have been rejected as nonresponsive for submitting photocopies and facsimile documents as part of its bid.
Tomahawk's allegation that the agency improperly awarded the contract in the face of Tomahawk's "intent" to protest is without foundation in law. The automatic stay provisions of the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3553(c) (1988), are not triggered by a potential protester's threat of protest. Rather, the agency must receive notice from the General Accounting Office (GAO) that a written protest has been received at the GAO. Federal Acquisition Regulations (FAR) Sec. 33.101 and 33.104(b).
With respect to the protester's allegation that the agency improperly denied Slates the right to withdraw its bid, we dismiss its protest. Tomahawk has no standing to claim the agency acted improperly towards Slates with respect to its alleged attempt to withdraw its bid; it is Slates' responsibility to assert its own rights in this regard. See Esilux Corp., B-234689, June 8, 1989, 89-1 CPD Para. 538. To the extent Tomahawk alleges that Slates did withdraw its bid, we disagree. The IFB provided that "A bid may be withdrawn in person by a bidder or its authorized representative if, before the exact time set for receipt of bids, the identity of the person requesting withdrawal is established and the person signs a receipt for the bid." Here, the Slates representative did not request that Slates' bid be returned to him and, accordingly, did not sign a receipt for the bid. Essentially, all that individual did was express concern over the potential that Slates' bid might be nonresponsive because parts of it were facsimile copies of the original. Under these circumstances, the bid was not with-drawn, nor was the agency required to return the bid to Slates' representative and eliminate Slates from the competition. See Satellite Servs., B-207631.2, Apr. 5, 1983, 83-1 CPD Para. 357.
Tomahawk next argues that Slates' bid must be rejected as nonresponsive because it was not a complete original as required by the solicitation. The protester argues that not only did Slates submit portions of its bid as facsimile copies, which is specifically prohibited by the IFB, but also portions of its bid were photocopies, also prohibited by the IFB. Tomahawk argues that Slates' failure to submit a complete original bid creates uncertainty as to Slates' intent to be bound to the IFB terms because the bid does not contain an original signature.
The IFB did prohibit submission of bids by facsimile and required submission of an original bid. However, Slates' bid was not submitted via a facsimile machine, and its failure to provide a complete set of original signatures was properly waived as a minor informality. A bid that does not contain an original signature is considered an unsigned bid and, as a general rule, must be rejected as nonresponsive because the bidder would not be obligated upon the government's acceptance of the bid. There is, however, an exception, which allows for waiver of the failure to properly sign a bid when the bid is accompanied by other documentation signed by the bidder (such as a properly executed bid bond or amendment bearing the bidder's signature), which clearly evidences the bidder's intent to be bound by the bid submitted. FAR Sec. 14.405(c)(1); Wilton Corp., 64 Comp.Gen. 233 (1985) 85-1 CPD Para. 128; Bonded Maintenance Co., Inc., B-235207, July 14, 1989, 89-2 CPD Para. 51.
Here, Slates signed and returned two amendments, properly signed and executed a bid bond, and submitted a signed letter promising to comply with certain terms of the solicitation. Accordingly, Slates' failure to submit an originally signed bid was a minor informality since its signature on the amendments, letter, and bid bond clearly evidenced its intent to be obligated upon the government's acceptance of the bid. Bonded Maintenance Co., Inc., B-235207, supra.
With respect to Slates' submission of part of its bid on facsimile paper, this does not constitute a prohibited facsimile bid under the terms of the solicitation. The FAR defines a facsimile bid as "a bid, modification of a bid, or withdrawal of a bid that is transmitted to and received by the Government via electronic equipment that communicates and reproduces both printed and handwritten material." FAR Sec. 52.214-31(a). Thus, the IFB clause in question prohibits submission of a bid via a facsimile machine directly to the government, and does not pertain to submission in person of a bid package in which certain parts are submitted on facsimile paper, as is the case here.
The protest is dismissed in part and denied in part.
/1/ There is some dispute as to the exact words spoken. However, even accepting the protester's version, Slates' representative merely expressed concern regarding the potential that its bid might be nonresponsive and indicated a desire to withdraw its bid if that were the case.
/2/ The representations and certifications section and the solicitation provisions.
/3/ The solicitation, offer, and award cover sheets and the bid schedules.