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B-231534, Jun 7, 1988, 88-1 CPD 542

B-231534 Jun 07, 1988
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Hirt argues that its hid nevertheless was responsive by referring to the Miller Act. A bid bond may be required only when payment and/or performance bonds are mandated. The protester maintains that since its bid is below the threshold amount it therefore did not have to supply a bid guarantee. There is no legal merit to the protest. Bid guarantees are requirements promulgated under the procurement regulations. Are not mandated by statute. While providing a dollar threshold when the use of performance an payment bonds is mandatory. The protest is dismissed.

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B-231534, Jun 7, 1988, 88-1 CPD 542

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Bid guarantees - Omission DIGEST: The failure to furnish a bid guarantee required in the invitation renders the bid nonresponsive.

Hirt Telecom Co:

Hirt Telecom Co., the low bidder, protests the rejection of its bid of 824,987 as nonresponsive for failure to submit a bid guarantee under invitation for bids (IFB) No. 88-13, issued by the Federal Communications Commission (FCC) for cable installation.

We dismiss the protest.

The IFB clearly required a bid guarantee. Hirt argues that its hid nevertheless was responsive by referring to the Miller Act, 40 U.S.C. Sec. 270a (1982), as implemented by Federal Acquisition Regulation (FAR) Sec. 28.102-1 (FAC 84-32), which requires that performance and payment bonds be posted for construction contracts that exceed $25,000. Under FAR Sec. 28.101-l(a), a bid bond may be required only when payment and/or performance bonds are mandated. The protester maintains that since its bid is below the threshold amount it therefore did not have to supply a bid guarantee.

There is no legal merit to the protest. Bid guarantees are requirements promulgated under the procurement regulations, and are not mandated by statute. Therefore, the contracting activity does not derive its authority to require them from the Miller Act. This being true, an agency may condition bid acceptance, for contracts of less than $25,000, upon the furnishing of a bid bond by the time of bid opening, and the protester's failure to furnish the bond here thus properly caused the rejection of the bid as nonresponsive. LTT Constructors, Inc., B-229062, Nov. 13, 1987, 87-2 Para. 484. We further point out that the Miller Act itself, while providing a dollar threshold when the use of performance an payment bonds is mandatory, does not preclude requiring the for contracts below the statutory limit. Id.

The protest is dismissed.

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