Matter of: Caldwell & Santmyer, Inc. File: B-260628 Date: July 3, 1995
Highlights
Bid which is ambiguous with respect to the identity of the bidding entity is nonresponsive. Inc." is indicated to be the nominal bidder. Inc. is) and includes the Taxpayer Identification Number (TIN) of Caldwell & Santmyer. The protester contends that it is clear from the bid documentation that the actual bidder is Caldwell & Santmyer. Caldwell as the bidder on the SF 1442 was a waivable clerical error. Uncertainty as to the identity of the bidder is a circumstance that renders a bid nonresponsive. Since ambiguity as to the offeror's identity could result in there being no party that is bound to perform the obligations of the contract. The bid materials or other information reasonably available must show that the differently identified entities are in fact exactly the same concern.
Matter of: Caldwell & Santmyer, Inc. File: B-260628 Date: July 3, 1995
Bid which is ambiguous with respect to the identity of the bidding entity is nonresponsive.
Attorneys
DECISION
Caldwell & Santmyer, Inc. protests the rejection of a bid by the Naval Facilities Engineering Command under invitation for bids (IFB) No. N62477- 93-B-0307, for the demolition of an existing building and construction of a dormitory at Andrews Air Force Base, Maryland.
We deny the protest.
The protester's bid identified the nominal bidder as "Thomas P. Caldwell" in block 14 (name and address of offeror) of the standard form (SF) 1442 (solicitation, offer and award). On this same page, Thomas P. Caldwell signed the bid as Secretary/Treasurer. On the other pages of the bid,
e.g., the Certificate of Procurement Integrity, "Caldwell & Santmyer,
Inc." is indicated to be the nominal bidder. The bid represents the
bidding entity as a Virginia corporation (which Caldwell & Santmyer, Inc.
is) and includes the Taxpayer Identification Number (TIN) of Caldwell &
Santmyer, Inc. The accompanying bid bond designates Caldwell & Santmyer,
Inc. as the principal.
The Navy rejected the protester's bid as nonresponsive because of the
discrepancy between the nominal bidder and the principal on the bid bond,
and made award to the next low bidder. The protester contends that it is
clear from the bid documentation that the actual bidder is Caldwell &
Santmyer, Inc., and that its entry of Thomas P. Caldwell as the bidder on
the SF 1442 was a waivable clerical error.
A contract cannot be awarded to any entity other than the one which
submitted the bid. 41 Comp.Gen. 61 (1961); Mark II, Inc., B-203694, Feb.
8, 1982, 82-1 CPD Para. 104. Uncertainty as to the identity of the bidder
is a circumstance that renders a bid nonresponsive, since ambiguity as to
the offeror's identity could result in there being no party that is bound
to perform the obligations of the contract. Sunrise Int'l Group, Inc.;
Eagle III Knoxville, Inc., B-252735; B-252735.2, July 27, 1993, 93-2 CPD
Para. 58. Although the name of the bidding entity need not be exactly the
same in all of the bid documents, the bid materials or other information
reasonably available must show that the differently identified entities
are in fact exactly the same concern. Jack B. Imperiale Fence Co., Inc.,
B-203261, Oct. 26, 1981, 81-2 CPD Para. 339; see Goss Fire Protection,
Inc., B-253036, Aug. 13, 1993, 93-2 CPD Para. 97 (different name on bid
bond).
Here, on the one hand, the bid could reasonably be considered a bid from
Thomas P. Caldwell since that is the name of the bidder identified in the
appropriate blank on the face of the bid. On the other hand, the other
information contained in the bid identifies Caldwell & Santmyer, Inc. as
the bidder. While it appears likely that Caldwell & Santmyer, Inc. was
intended to be the nominal bidder, given that the bid indicates that the
bidding entity is a Virginia corporation with Caldwell & Santmyer, Inc.'s
TIN, the fact remains that two different legal entities, Thomas P.
Caldwell and Caldwell & Santmyer, Inc., are identified as the nominal
bidder in the bid, so that the contracting officer had reason to be
uncertain as to who was the actual bidder. See Sunrise Int'l Group, Inc.;
Eagle III Knoxville, Inc., supra; The Scotsman Group, Inc., B-245634, Jan.
13, 1992, 92-1 CPD Para. 57. It is the bidder's responsibility to prepare
its bid properly so as to ensure that the contracting officer is able to
accept the bid in full confidence that an enforceable contract will
result. Id.
As noted by the protester, in certain cases, we have found bids to be
responsive, even though they designated the intended bidder by different
names. See, e.g., Coonrod & Assoc., 67 Comp.Gen. 117 (1987), 87-2 CPD
Para. 549; Best Western Conference Center, B-255425, Feb. 28, 1994, 94-1
CPD Para. 156; Sunrise Int'l Group, Inc., B-251956, Feb. 8, 1993, 93-1 CPD
Para. 114; Mark II, Inc., supra; Jack B. Imperiale Fence Co., supra;
Protectors, Inc., B-194446, Aug. 17, 1979, 79-2 CPD Para. 128 (a bid that
designates as the bidder a recognized trade name or an alternate name of a
corporation is sufficient to bind the corporation as the bidder).
However, where, as here, more than one legal entity--Thomas P. Caldwell
and Caldwell & Santmyer, Inc.--are designated in the bid as the potential
nominal bidder, there is insufficient certainty as to the identity of the
actual bidder to be bound by the bid to allow it to be considered
responsive. Sunrise Int'l Group, Inc.; Eagle III Knoxville, Inc., supra;
Syllor Inc. and Ease Chemical, B-234723; B-234724, June 6, 1989, 89-1 CPD
Para. 530; Future Elec. Co., B-212938, Feb. 22, 1984, 84-1 CPD 216; Ebsco
Interiors, B-205526, Aug. 16, 1982, 82-2 CPD Para. 130. Thus, the
agency's rejection of the protester's bid as nonresponsive is not legally
objectionable.
The protest is denied.