December 30, 1996
Appeal of
REGIONAL TRUCKING, INC.
Under Contract No. HCR 02360
PSBCA No. 3918
APPEARANCE FOR APPELLANT:
M. C. Johnson
APPEARANCE FOR RESPONDENT:
Mark T. Corbly, Esq.
OPINION OF THE BOARD
Appellant, Regional Trucking, Inc., has filed a timely appeal of the decision of the contracting officer to terminate for default its mail transportation contract. This appeal is being decided on the record in accordance with 39 C.F.R. §955.12.
FINDINGS OF FACT
1. Solicitation No. 060-117-95, for temporary transportation services between Mansfield Annex and Middleboro Talbot’s, Massachusetts, was issued by Respondent on September 8, 1995. The solicitation advised prospective bidders that sealed bids would be received until 3:00 p.m., October 10, 1995. Section I.C of Postal Service Form 7469, HIGHWAY OR DOMESTIC WATER TRANSPORTATION CONTRACT INFORMATION AND INSTRUCTIONS (July 1992), a copy of which was included as a part of the solicitation, provides that late bids, bid modifications or withdrawals will not be considered unless it can be demonstrated that the document was mailed prior to bid closing. (Appeal File Tab (AF) 1).
2. Postal Service Form 7469 also provides, at Section II.C, that bids shall remain available for acceptance for a period of 60 days from the date of bid closing. When the lowest responsible, responsive bid “is accepted and signed by the contracting officer, it shall be recognized as the contract for the specified service at the rate stated therein.” (AF 1).
3. Appellant submitted the low bid, in the amount of $18,166.64, on Solicitation No. 060-117-95 (AF 2, 3). In the signature block on the submitted bid, Appellant hand printed “Regional Trucking” on the signature line. Appellant hand printed “M.C. Johnson President” on the line calling for the name and title of the bidder. Appellant hand signed, however, as “M.C. Johnson” on the Bid or Renewal Worksheet, the Fuel Purchase Plan and the Representations and Certifications form, all of which also referred to Solicitation No. 060-117-95, and/or the Highway Route No. 02360, and were submitted as a part of Appellant’s bid. (AF 2).
4. By letter dated October 12, 1995, Respondent informed Appellant that its bid was one of several low bids being considered for award, but that, before an award could be made, Appellant had to complete the enclosed pre-award questionnaires (AF 4).
5. Appellant completed and signed the pre-award questionnaires and returned them to Respondent on October 22, 1995. These documents indicated Appellant owned the necessary equipment to perform the required services and that it had a positive net worth of $192,700. (AF 5).
6. On November 6, 1995, Appellant notified Respondent it would be unable to “perform this contract’s [Solicitation No. 060-117-95] duties due to unforeseen equipment failures/capabilities at this time” (AF 6).
7. Appellant was informed by Respondent on November 15, 1995, that the request for withdrawal of its bid was not in accordance with the terms of the solicitation and could not be allowed (AF 7). Thereafter, on November 17, 1995, Appellant’s bid of $18,166.64 per year was determined to be the lowest responsible and responsive bid received, and was accepted by the contracting officer[1] (AF 8, 10).
8. A representative of Respondent contacted Appellant by telephone on November 17, 1995, and informed Appellant that a contract based on its low bid had been awarded. Appellant argued that the award would be invalid because it was unable to perform the contract due to a lack of equipment (Appellant no longer had a truck). (AF 9).
9. Under the terms of this contract either party could terminate the contract with 30 days written notice to the other party. The contract also contained General Provision 16, TERMINATION BY THE POSTAL SERVICE FOR DEFAULT, (PS Form 7407, July 1992), which authorized the contracting officer to terminate the contract for default in the event the contractor failed to perform according to the terms of the contract. (AF 1).
10. By letter dated November 25, 1995, Appellant once again advised Respondent that it could not perform the duties of the contract, and further argued that the awarded contract was invalid because Appellant had not signed the bid it submitted (AF 14).
11. Performance under the contract was to begin on December 2, 1995, and run through November 28, 1997 (AF 2, 10). Appellant, however, did not perform any of the contract services, and by final decision dated December 7, 1995, the contracting officer terminated the contract for default, effective December 2, 1995, for failure to perform according to the terms of the contract. The contracting officer found that Appellant’s letter of November 25, 1995, constituted an anticipatory breach of the contract. (AF 16). Appellant timely appealed that decision (AF 17).
DECISION
Appellant claims[2] that no contract was formed because it failed to sign the bid submission and also because it informed Respondent prior to award that it would be unable to perform.
Appellant’s arguments lack merit. Appellant’s hand printed name and title was sufficient to bind it to the bid it submitted. Courts, as well as the General Accounting Office, have long indicated a willingness to accept other than a handwritten signature on executory documents such as bid proposals. See Ohl & Co. v. Smith Iron Works, 288 U.S. 170, 176 (1932) (initials); Benedict v. Lebowitz, 346 F.2d 120 (2nd Cir. 1965) (typed name); Tabas v. Emergency Fleet Corporation, 9 F.2d 648, 649 (E.D. Penn., 1926) (typed, printed or stamped signatures); See also, National Institute of Standards and Technology, 71 Comp. Gen. 109 (1991) (use of electronic data interchange technology to create valid obligations). What is necessary is evidence of an intent to be bound. Benedict v. Lebowitz, supra; see also, Peter J. O’Brien, 96-2 CPD ¶ 91, (Aug 29, 1996). In this case, Appellant hand printed the title of the corporation on the signature line, and hand printed “M.C. Johnson President” on the line calling for the name and title of the bidder. Mr Johnson also hand signed three other documents which were submitted as a part of its bid, all of which either referred to the solicitation or highway route number. (Finding of Fact No. (FOF) 3). These actions constitute sufficient evidence of an intent to be bound by the bid documents. Furthermore, the fact that Appellant subsequently completed, signed and returned to Respondent the pre-award surveys (FOF 5), resolve any doubt of Appellant’s intent to be bound by the bid it submitted.
As of the date it submitted its pre-award questionnaires, Appellant represented that it had the necessary equipment to perform the route (FOF 5). In its later repudiation of its obligation to perform, Appellant claimed to no longer have the equipment necessary to perform the required transportation services. Nevertheless, nothing in the solicitation required that the bidder have the specified equipment prior to award, only that the equipment be present at the beginning of contract performance. Cf. Robert E. Davis, PSBCA No. 3400, 94-3 BCA ¶ 27,164. Accordingly, Appellant’s pre-award lack of equipment neither invalidates the contract award, nor does it constitute an excusable cause for defaulting on contract performance. See The Four Roses Painting Co., PSBCA No. 1013, 83-1 BCA ¶ 16,541, (“Appellant’s argument that it was not a responsive or responsible bidder cannot void its contract responsibilities”).
Appellant quite clearly stated its intent not to perform the contract (FOF 10). In the absence of any excusability, this is sufficient to constitute an anticipatory repudiation of the contract. The contracting officer’s decision to terminate the contract for default for failure to perform was appropriate under these circumstances, especially in view of Appellant’s actual failure to begin work on December 2, 1995 (FOF 11). Gerald M. Davy, PSBCA No. 3270, 94-2 BCA ¶ 26,690.
This appeal is denied.[3]
William K. Mahn
Administrative Judge
Board Member
I concur:
James A. Cohen
Administrative Judge
Chairman
I concur:
David I. Brochstein
Administrative Judge
Vice Chairman
[1] In making this determination, Respondent considered the fact that Appellant possessed a DOT Safety Rating and had previous experience as a sub-contractor carrying mail for the Postal Service. In addition, responses in Appellant’s pre-award questionnaires indicated substantial positive net worth. (AF 8).
[2] Appellant did not take advantage of the opportunity to submit evidence or file a brief. Nevertheless, Appellant’s arguments are contained in its letters and records of telephone conversations with Respondent. (Finding of Fact Nos. (FOF) 6, 8, 10).
[3] We note that in the contracting officer’s final decision, he indicated that Respondent might hold Appellant liable for the full term of the contract. Although we uphold the default, the issue of excess costs was not before us and this Opinion should not be read as necessarily agreeing with the contracting officer’s assertion concerning the extent of those costs.