B-178559, JUN 25, 1973

B-178559, JUN 25, 1973

PROTEST ON BEHALF OF EDWARD M. CROUGH, INC., UNDER IFB NO. C-73113-B, ISSUED BY THE DEPARTMENT OF GENERAL SERVICES, GOVERNMENT OF THE DISTRICT OF COLUMBIA, DENIED.

TO RHODES, HOGUE & ROSS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1973, ON BEHALF OF EDWARD M. CROUGH, INCORPORATED, IN REGARD TO ITS PROTEST AGAINST AN AWARD TO BALTIMORE CONTRACTORS UNDER INVITATION FOR BIDS (IFB) NO. C-73113-B, ISSUED BY THE DEPARTMENT OF GENERAL SERVICES, GOVERNMENT OF THE DISTRICT OF COLUMBIA.

THE IFB WAS FOR THE CONSTRUCTION OF AN ELEMENTARY AND JUNIOR HIGH SCHOOL. THE FOLLOWING BIDS WERE RECEIVED FOR THE PROJECT:

BALTIMORE CONTRACTORS$10,035,000

EDWARD M. CROUGH, INC. 10,353,000

J. W. BATESON COMPANY, INC. 10,446,000

THE PROTEST OF CROUGH IS BASED ON THE ALLEGATION THAT THE BID OF BALTIMORE CONTRACTORS WAS NONRESPONSIVE FOR FAILURE TO USE THE BID FORM SUPPLIED WITH ADDENDUM NO. 3 ISSUED APRIL 5, 1973. BALTIMORE CONTRACTORS USED A SUPERSEDED BID FORM. BOTH BID FORMS CONTAINED THE FOLLOWING STATEMENTS:

ENCLOSED IS BID GUARANTY, AS REQUIRED, 5% OF TOTAL BID AMOUNT, CONSISTING OF , AND THE UNDERSIGNED AGREES THAT, IN THE EVENT THE CONTRACT IS AWARDED TO HIM WITHIN SIXTY (60) DAYS AFTER DATE OF OPENING OF THE BIDS AND HE IS THEREAFTER NOTIFIED THEREOF, HE WILL WITHIN TEN (10) DAYS AFTER THE PRESCRIBED FORMS ARE FORWARDED TO HIM FOR EXECUTION (OR WITHIN ANY EXTENSION OF TIME WHICH MAY BE GRANTED BY THE OFFICER TO WHOM THIS BID IS ADDRESSED), EXECUTE AND DELIVER A CONTRACT ON THE STANDARD DISTRICT FORM IN ACCORDANCE WITH THE TERMS OF THE BID AS ACCEPTED, AND WILL FURNISH PERFORMANCE AND PAYMENT BOND WITH GOOD AND SUFFICIENT SURETY OR SURETIES IN THE FULL AMOUNT OF THE CONTRACT PRICE AS REQUIRED BY THE STANDARD DISTRICT INSTRUCTIONS TO BIDDERS, AND THAT, IF HE FAILS OR REFUSES SO TO DO, SAID BID GUARANTY SHALL BE APPLIED BY THE DISTRICT OF COLUMBIA IN THE MANNER SPECIFIED IN THE STANDARD DISTRICT INSTRUCTIONS TO BIDDERS.

THE UNDERSIGNED (HAS) (HAS NOT) PARTICIPATED IN A PREVIOUS CONTRACT SUBJECT TO THE PROVISIONS OF THE NONDISCRIMINATION IN EMPLOYMENT CLAUSE OF THE DISTRICT OF COLUMBIA.

IN THE REVISED BID FORM, THE STATEMENTS APPEARED ABOVE THE SPACE PROVIDED FOR THE BIDDER'S SIGNATURE. IN THE SUPERSEDED BID FORM, THE STATEMENTS FOLLOWED THE SIGNATURE BLOCKS. YOU HAVE CONTENDED THAT THE BID SHOULD BE REJECTED BECAUSE, ALTHOUGH BALTIMORE CONTRACTORS PROVIDED THE INFORMATION CALLED FOR BY THE SUBSTITUTE BID FORM, IT WAS NOT PROVIDED OVER THE SIGNATURE OF THE BIDDER AS A PART OF ITS BID COMMITMENT.

THE D.C. GOVERNMENT HAS INDICATED THAT IT DOES NOT CONSIDER THE USE OF THE SUPERSEDED BID FORM TO BE A MATERIAL DEVIATION.

YOU HAVE ATTACHED SIGNIFICANCE TO THE FACT THAT BALTIMORE CONTRACTORS DID NOT USE THE REVISED BID FORM. HOWEVER, OUR OFFICE HAS RULED THAT A BID TO BE CONSIDERED FOR AWARD NEED NOT BE SUBMITTED ON THE OFFICIAL BID FORM PROVIDED WITH THE IFB, BUT MAY BE SUBMITTED ON THE COMPANY'S LETTERHEAD OR OTHER CORRESPONDENCE AS LONG AS ALL OF THE TERMS AND CONDITIONS OF THE CONTRACT ARE ACCEPTED. B-147711, JANUARY 4, 1962. ALSO, IN B-159528, OCTOBER 3, 1966, OUR OFFICE UPHELD THE RESPONSIVENESS OF A BID WHERE THE BIDDER BID ON THE ORIGINAL BID FORM INSTEAD OF THE FORM FURNISHED BY AN ADDENDUM.

FURTHERMORE, THE FEDERAL PROCUREMENT REGULATIONS PROVIDE FOR THE USE OF OTHER THAN THE SUPPLIED BID FORM IN SECTION 1-2.303.1 WHICH READS, IN PART, AS FOLLOWS:

*** IF A BIDDER USES ITS OWN BID FORM OR A LETTER TO SUBMIT A BID, THE BID MAY BE CONSIDERED ONLY IF (1) THE BIDDER ACCEPTS ALL THE TERMS AND CONDITIONS OF THE INVITATION, AND (2) AWARD ON THE BID WOULD RESULT IN A BINDING CONTRACT, THE TERMS AND CONDITIONS OF WHICH DO NOT VARY FROM THE TERMS AND CONDITIONS OF THE INVITATION.

IN REVIEWING OUR RECORDS, WE HAVE FOUND THAT THE DIRECTOR OF GENERAL SERVICES, D.C. GOVERNMENT, ADVISED OUR OFFICE BY LETTER OF NOVEMBER 16, 1971, THAT IN THE FUTURE, D.C. PROCUREMENTS WOULD BE GUIDED BY THE FEDERAL PROCUREMENT REGULATIONS WHERE THE DISTRICT OF COLUMBIA LACKED ITS OWN POLICIES AND PROCEDURES. THUS, THE FPR WOULD PROVIDE GUIDANCE TO THE D.C. GOVERNMENT ON THE IMMEDIATE MATTER AND FUTURE SITUATIONS OF THIS KIND.

YOU CONSIDER IT IMPORTANT THAT THE CLAUSES QUOTED ABOVE REFER TO THE "UNDERSIGNED," BUT THAT ON THE FORM USED BY BALTIMORE CONTRACTORS THE CLAUSES APPEAR AFTER THE SIGNATURE BLOCK. YOU SUGGEST THAT FOR THAT REASON THERE IS AN ABSENCE OF COMMITMENT BY BALTIMORE CONTRACTORS TO THE REQUIREMENTS OF THE CLAUSES. HOWEVER, AS YOU HAVE NOTED, BALTIMORE CONTRACTORS DID FURNISH THE INFORMATION REQUIRED BY THE CLAUSES. TO THE EXTENT THAT THE CLAUSES MIGHT REQUIRE SOME ADDITIONAL COMMITMENT BY THE MANIFESTATION OF A SIGNATURE, THAT IS DEEMED TO HAVE BEEN ACCOMPLISHED BY THE SIGNATURE APPEARING IMMEDIATELY ABOVE THE CLAUSES. IN THAT REGARD, CONTRACTS, 17 C.J.S. SEC. 62B, STATES THAT IT IS NOT NECESSARY THAT THE SIGNATURE OF A PARTY SHOULD APPEAR AT THE END OF THE CONTRACT AND THAT IF HIS NAME IS WRITTEN BY HIM IN ANY PART OF THE CONTRACT WITH THE INTENTION TO SIGN THAT IS SUFFICIENT TO BIND HIM.

IN THE CIRCUMSTANCES, THE BID OF BALTIMORE CONTRACTORS IS CONSIDERED TO HAVE OFFERED COMPLIANCE WITH ALL THE TERMS OF THE IFB AND THE FAILURE TO USE THE LATEST BID FORM IS ONLY A MATTER OF FORM RATHER THAN OF SUBSTANCE AND IS NOT A SUFFICIENT BASIS TO REJECT THE BID. THEREFORE, WE AGREE WITH THE D.C. GOVERNMENT THAT THE BID SHOULD BE CONSIDERED FOR AWARD.

ACCORDINGLY, THE PROTEST IS DENIED.