B-164040, JUN. 26, 1968

B-164040, JUN. 26, 1968

TO ARMSTRONG, TEASDALE, KRAMER AND VAUGHN:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 11, 1968, WITH ENCLOSURE, AND JUNE 3, 1968, PROTESTING ON BEHALF OF FLEX-O-LITE DIVISION OF GENERAL STEEL INDUSTRIES, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO POTTERS BROS., INCORPORATED, UNDER INVITATION FOR BIDS NO. FPNGP-S- 70085-A-3-26-68, ISSUED MARCH 5, 1968, BY THE FEDERAL SUPPLY SERVICE.

THE INVITATION AS MODIFIED BY AMENDMENT NO. 1, SOLICITED BIDS TO MEET THE REQUIREMENTS COVERING STOCK REPLENISHMENT FOR THE FEDERAL SUPPLY SCHEDULE, CATALOG GROUP 8010-BEADS; RETRO-REFLECTIVE, GLASS SPHERES, FOR AIRFIELD RUNWAY MARKING PAINT. THE INVITATION CONTEMPLATED THE AWARD OF A TERM CONTRACT (WITH GUARANTEED PURCHASE QUANTITIES) FOR THE PERIOD APRIL 14, 1968, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH DECEMBER 15, 1968. UPON BID OPENING ON MARCH 26, 1968, IT WAS FOUND THAT THE LOW BID OF POTTERS BROS. WAS NOT SIGNED AND THE FIRST PAGE OF THE INVITATION DID NOT CONTAIN THE FIRM'S NAME OR OTHER BIDDER IDENTIFICATION. HOWEVER, AMENDMENT NO. 1, WHICH WAS STAPLED ON TOP OF THE SOLICITATION, OFFER, AND AWARD FORM, SHOWED THE NAME AND ADDRESS OF POTTERS BROS., AND WAS SIGNED BY JOHN P. MANLEY, VICE PRESIDENT. ALSO, ON PAGE 11 OF THE FORM, THE PRODUCTION AND SHIPPING POINTS WERE IDENTIFIED AS "POTTERS BROS., INC., CARLSTADT, N.J.'. FURTHER ON THE SAME PAGE IN ITEM 16, THE CONTACT FOR CONTRACT ADMINISTRATION WAS IDENTIFIED AS "T. H. O-LEARY" , "SALES MANAGER" AT THE SAME ADDRESS SHOWN FOR POTTERS BROS. ON THE FACE OF THE AMENDMENT.

THE INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, JULY 1966, PAGES 3 AND 4 OF THE INVITATION REQUIRE UNDER SECTION 2 (B), THAT THE OFFEROR SHALL SIGN THE SOLICITATION, AND UNDER SECTION 4, THAT RECEIPT OF THE AMENDMENT BY THE OFFEROR MUST BE ACKNOWLEDGED IN THE PRESCRIBED MANNER PRIOR TO THE HOUR AND DATE SPECIFIED FOR RECEIPT OF OFFERS.

IN YOUR LETTER OF APRIL 11, 1968, YOU CONTEND THAT AN AWARD TO POTTERS BROS. IS INVALID FOR THE FOLLOWING REASONS:

"1. THE SPECIFICATIONS CONTAINED IN THE SOLICITATION, OFFER AND AWARD OF ORDER AS OUTLINED ABOVE REQUIRE UNDER INSTRUCTIONS AND CONDITIONS, SECTION 2 (B), THAT "THE OFFEROR SHALL SIGN THE SOLICITATION ...'. THE SOLICITATION, OFFER AND AWARD WAS NOT SIGNED BY AN AUTHORIZED OFFICER OF POTTERS BROS., INC. -- IN FACT, WAS NOT SIGNED AT ALL -- IN BOX 19 AS REQUIRED UNDER THE INSTRUCTIONS AND CONDITIONS AND THEREBY THE BID OF POTTERS BROS., INC. FAILED TO COMPLY WITH THE REQUIREMENTS AND WAS NOT AN ACCEPTABLE BID AND, THEREFORE, SHOULD BE CONSIDERED A NON-PERFORMING BID.

"2. MR. PETER BONK, CHIEF, PAINT AND FUELS SECTION, GENERAL PRODUCTS BRANCH, PROCUREMENT OPERATIONS DIVISION, GENERAL SERVICES ADMINISTRATION, HAS STATED IN A LETTER TO THE PROTESTOR (A COPY OF WHICH IS ATTACHED HERETO, AND INCORPORATED HEREIN) THAT A SIGNED ACKNOWLEDGMENT OF AN AMENDMENT TO SPECIFICATIONS CURES THE DEFECT IN THE FAILURE TO SIGN THE BIDDING DOCUMENT. UNDER SECTION 4 OF THE INSTRUCTIONS AND CONDITIONS, HOWEVER, IT IS CLEAR THAT ACKNOWLEDGMENT OF AN AMENDMENT IS MERELY TO INSURE THAT THE BIDDER HAS NOTICE OF ANY CHANGE IN THE SPECIFICATIONS AND DOES NOT RELATE IN ANY MANNER TO THE OFFER MADE BY EXECUTING THE SOLICITATION, OFFER, AND AWARD IN BOX 19.

"3. NO MUTUALITY EXISTS BETWEEN THE GOVERNMENT AND POTTERS BROS., INC. SINCE, AT THE TIME OF THE BID OPENING, AND THEREAFTER, IT WOULD HAVE BEEN IMPOSSIBLE TO ENFORCE THE SOLICITATION OFFER AND ACCEPTANCE AGAINST POTTERS BROS., INC. SINCE THEY HAD FAILED TO SIGN THE OFFER AS REQUIRED. SINCE THERE IS NO MUTUALITY, THE GOVERNMENT CANNOT NOW ACCEPT THE BID OF POTTERS BROS., INC.'

THE CONTRACTING OFFICER HAS INDICATED HIS INTENTION TO MAKE AWARD TO THE LOW BIDDER PURSUANT TO THE FEDERAL PROCUREMENT REGULATIONS (FPR) WHICH HAVE THE FORCE AND EFFECT OF LAW. SECTION 1-2.405 (C), THEREUNDER, 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 DECISIONS OF OUR OFFICE GENERALLY HAVE FOLLOWED THE RULE THAT MANUALLY UNSIGNED BIDS BEARING A TYPEWRITTEN NAME MAY BE CONSIDERED FOR AWARD IF ACCOMPANIED BY SOME DOCUMENTARY EVIDENCE SHOWING A CLEAR INTENT TO SUBMIT A BID. 36 COMP. GEN. 523; 34 ID. 439; 17 ID. 497. IT HAS ALSO BEEN HELD THAT DEVIATION FROM EXACT REQUIREMENTS OF AN INVITATION IN REGARD TO THE SIGNING OF A BID DOES NOT REQUIRE REJECTION OF THE BID AND IT WOULD BE IMPROPER TO REJECT IF THE INTENTION OF THE CORPORATE BIDDER TO SUBMIT A BINDING BID IS SHOWN. DALY V O-BRIEN, ET AL., 112 N.Y.S. 304. IN THIS CASE THE BIDDER'S NAME WAS NOT TYPED IN ON BLOCK NO. 17 OF THE FIRST PAGE OF S.F. 33, JULY 1966. HOWEVER, AS NOTED EARLIER, POTTERS BROS. WAS IDENTIFIED AS THE PRODUCTION AND SHIPPING POINT OF THE PRODUCT, THE ADDRESS OF THE CONTACT FOR CONTRACT ADMINISTRATION WAS SHOWN ON THE SAME PAGE AS THE POTTERS BROS. ADDRESS INDICATED ON THE AMENDMENT AND, ON PAGE 2 OF S.F. 33, THE BIDDER WAS IDENTIFIED AS A MANUFACTURER OF THE SUPPLIES OFFERED. IN OUR JUDGMENT VOLUNTARY SUBMISSION OF THE LOW BID IN THE FORM DESCRIBED, ACCOMPANIED BY AN EXECUTED AND DATED AMENDMENT TO THE INVITATION AS A COVER SHEET, BOTH HAVING BEEN RECEIVED IN THE SAME ENVELOPE, SATISFACTORILY ESTABLISHED THE BIDDER'S INTENTION TO BE BOUND BY ITS UNSIGNED BID, AND AS SUBMITTED, CONSTITUTED A VALID OFFER BY THE CORPORATION WHICH UNDER THE LAW PERTAINING TO GOVERNMENT CONTRACTS IT COULD NOT DISAVOW AND WHICH, UPON ACCEPTANCE WITHIN THE PROPER TIME, WOULD RIPEN INTO A CONTRACT BINDING UPON THE CORPORATION NOTWITHSTANDING ANY ACTION OR LACK THEREOF ON THE PART OF ITS OFFICERS OR DIRECTORS. CF. B- 148176, APRIL 19, 1962; B-124029, JUNE 1, 1955.

IN ACCORDANCE WITH THE FOREGOING, WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF AN AWARD ON THE LOW BID.