B-154792, SEP. 11, 1964

B-154792, SEP. 11, 1964

TO ROBERT E. HERZSTEIN:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 19 AND 28, 1964, REQUESTING RECONSIDERATION OF DECISIONS B-154792 OF AUGUST 3 AND 6, 1964, TO THE ARCHITECT OF THE CAPITOL, WHICH HELD THAT THE BID OF THE JOINT VENTURE OF BROOKFIELD CONSTRUCTION COMPANY, INC., AND BAYLOR CONSTRUCTION CORPORATION ON JOB 6409 SHOULD NOT BE CONSIDERED BECAUSE OF THE DEFICIENT BID BOND WHICH ACCOMPANIED THE BID.

THE FACTS UPON WHICH OUR DECISIONS WERE BASED ARE SET OUT IN THE AUGUST 3 DECISION AND THEREFORE DO NOT REQUIRE REPEATING.

YOU REPORT THAT PRIOR TO THE OPENING OF BIDS ON THE BID OPENING DAY THE BIDDER REALIZED THAT THE BID BOND ACCOMPANYING ITS BID WAS$73,500 LESS THAN THE AMOUNT PROVIDED FOR IN THE BIDDING CONDITIONS AND CONTACTED ITS BOND BROKER WHO WENT TO THE OFFICE OF THE BONDING COMPANY TO OBTAIN ADDITIONAL BOND COVERAGE FOR THE BIDDER. ACCORDING TO AN AFFIDAVIT OF THE ASSISTANT BOND SUPERINTENDENT OF THE SURETY COMPANY, A TELEGRAM TO THE ARCHITECT OF THE CAPITOL INCREASING THE BID BOND FROM $1,100,000 TO $1,200,000 WAS PREPARED BY HIM AND DELIVERED TO THE BONDING COMPANY'S COMMUNICATIONS DEPARTMENT FOR DISPATCH BY TELETYPE THROUGH WESTERN UNION AT 2:29 P.M., 31 MINUTES BEFORE BID OPENING TIME. YOU HAVE ALSO PRESENTED AN AFFIDAVIT FROM THE SUPERINTENDENT OF THE BOND DEPARTMENT OF THE SURETY COMPANY WHEREIN HE STATES THAT IT HAS ALWAYS BEEN THE INTENTION OF THE COMPANY TO ISSUE A BID BOND IN THE AMOUNT OF 10 PERCENT OF THE BID PRICE (THE REQUIREMENT IN THE BIDDING CONDITIONS) AND THAT WHEN HE EXECUTED THE BID BOND IN THE AMOUNT OF $1,100,000 HE BELIEVED THAT SUM TO BE 10 PERCENT OF THE BID PRICE.

THE FIRST AFFIANT HAS STATED THAT THE TELEGRAM INCREASING THE BOND COVERAGE WAS DELIVERED TO THE BONDING COMPANY'S COMMUNICATIONS DEPARTMENT AT 2:29 P.M. HOWEVER, THE TELEGRAM RECEIVED BY THE ARCHITECT OF THE CAPITOL BEARS A TIME STAMP WHICH SHOWS IT WAS FILED WITH WESTERN UNION AT :24 P.M., 24 MINUTES AFTER BID OPENING TIME, AND WESTERN UNION HAS CONFIRMED THE FILING TIME.

IT IS YOUR POSITION THAT SINCE FROM THE OUTSET THE BONDING COMPANY INTENDED TO ISSUE A BID BOND IN THE REQUIRED PENAL SUM AND THE ASSISTANT BOND SUPERINTENDENT OF THE COMPANY TOOK STEPS TO COMMUNICATE THAT INTENTION TO THE ARCHITECT OF THE CAPITOL PRIOR TO THE BID OPENING TIME, THE TRANSACTION WAS COMPLETED THEREBY AND THE BENEFIT OF THE TRANSACTION ACCRUED TO THE GOVERNMENT AS CONTEMPLATED BY THE INVITATION FOR BIDS.

HOWEVER, WE DO NOT AGREE WITH THIS RATIONALE. THE INVITATION FOR BIDS IS SPECIFIC THAT A GUARANTY OF NOT LESS THAN 10 PERCENT OF THE BID SHALL ACCOMPANY THE BID. AS THE INVITATION, AS AMENDED BY ADDENDUM 2, SET A BID OPENING TIME OF 3:00 P.M. ON JULY 15, 1964, WE BELIEVE THE REASONABLE INTERPRETATION OF THE INVITATION FOR BIDS IS THAT THE BID GUARANTY IN THE PRESCRIBED PENAL SUM IS COVERED BY THE SAME TIME LIMITATION. THEREFORE, SINCE THE NOTIFICATION FROM THE SURETY COMPANY WAS NOT RECEIVED AT THE TIME IN QUESTION AND IT WAS NOT SHOWN ON THE FACE OF THE BID BOND WHICH WAS RECEIVED TIMELY THAT THE SURETY INTENDED TO BE BOUND BY ANY MORE THAN THE PENAL SUM, I.E., $1,100,000, TYPEWRITTEN INWORDS AND FIGURES ON THE FACE OF THE BOND, WE DO NOT UNDERSTAND HOW IT CAN BE PROPERTY CONCLUDED THAT THE BENEFIT OF THE TRANSACTION ACCRUED TO THE GOVERNMENT AS CONTEMPLATED BY THE INVITATION FOR BIDS WHEN AT BID OPENING TIME THE CONSENT TO VARY THE SPECIFIC TERMS OF THE BOND WAS IN THE POSSESSION AND CONTROL OF THE SURETY AND HAD NOT BEEN COMMUNICATED TO THE ARCHITECT OF THE CAPITOL, OR EVEN WESTERN UNION. THAT THE BID BOND LIABILITY WAS LIMITED TO $1,100,000 IS MADE MANIFEST BY WORDS AND FIGURES IN THE SPACE PROVIDED FOR STATEMENT OF THE PENAL SUM ON THE STANDARD BID BOND FORM AND THE SUCCEEDING STATEMENT IN THE BODY OF THE BOND THAT THE PRINCIPAL AND SURETY ARE BOUND "IN THE PENAL SUM OF THE AMOUNT STATED OVE.'

ACTUALLY, THIS CASE IS ANALOGOUS TO THE CASE REPORTED IN 39 COMP. GEN. 827. THE BIDDER THERE SUBMITTED A BID BOND IN AN AMOUNT LESS THAN REQUIRED BY THE INVITATION DUE TO A PURPORTED CLERICAL ERROR BY THE SURETY. WE HELD THAT THE FAILURE TO COMPLY WITH THE BOND REQUIREMENT WAS A MATERIAL DEVIATION WHICH COULD NOT BE WAIVED.

IT IS YOUR FURTHER POSITION THAT THE $1,100,000 BID SECURITY FURNISHED BY THE JOINT VENTURE SHOULD BE CONSIDERED ACCEPTABLE, SINCE, IN THE EVENT THE JOINT VENTURE FAILED TO EXECUTE THE CONTRACT AND TO POST THE REQUIRED PERFORMANCE AND PAYMENT BONDS AFTER BEING AWARDED THE CONTRACT, THE AMOUNT OF THE SECURITY WOULD ENABLE THE GOVERNMENT TO MAKE AN AWARD UP THROUGH THE FOURTH LOW BIDDER WITHOUT THE TOTAL COST OF THE WORK COVERED BY THE INVITATION FOR BIDS EXCEEDING THE AMOUNT OF THE JOINT VENTURE'S LOW BID. HOWEVER, IN ARRIVING AT THE RESULT IN 39 COMP. GEN. 827, SUPRA, ATTENTION WAS DIRECTED TO ANOTHER DECISION, B-140624 OF NOVEMBER 23, 1959, WHEREIN THERE WAS CONSIDERED THE CASE OF A BIDDER WHO ALSO FURNISHED A DEFICIENT BID BOND WITH ITS BID AND WHEREIN IT WAS INDICATED THAT A DEFICIENCY IN THE AMOUNT OF THE BID BOND WAS JUST AS SIGNIFICANT AS FURNISHING NO BID BOND AT ALL. IN THAT CONNECTION, IT WAS SAID:

"* * * THE LANGUAGE OF THE INVITATION CLEARLY REQUIRES NOT MERELY THE SUBMISSION OF A BID BOND BUT A BID BOND IN NOT LESS THAN THE INDICATED AMOUNT. IF THE REQUIREMENT FOR SUBMISSION OF A BID BOND BY THE TERMS OF THE INVITATION IS TO BE REGARDED AS MATERIAL IT LOGICALLY FOLLOWS THAT THE REQUIREMENT AS TO THE AMOUNT OF THE BID IS EQUALLY MATERIAL.'

IN ADDITION TO THE FOREGOING CASES, THERE HAVE BEEN A NUMBER OF OTHERS WHEREIN THE BID SECURITY DID NOT MEET THE REQUIRED PENAL SUM BUT EXCEEDED THE DIFFERENCE BETWEEN THE LOW BID AND AT LEAST THE SECOND LOW BID AND OUR OFFICE HAS CONSIDERED THAT THE BID SHOULD BE REJECTED. 38 COMP. GEN. 851; B-140330, SEPTEMBER 30, 1959; B-145168, JANUARY 11, 1960; AND B-144040, NOVEMBER 10, 1960. IT IS TRUE THAT IN B-153288, MARCH 19, 1964, OUR OFFICE DID NOT DISAGREE WITH THE DETERMINATION OF A CONTRACTING OFFICER TO WAIVE THE DEFICIENCY IN THE AMOUNT OF A DISPOSAL SALE BID DEPOSIT WHICH EXCEEDED THE DIFFERENCE BETWEEN THE TWO HIGH BIDS WHERE THE CONTRACTING OFFICE NOTED THAT ASPR PERMITTED SUCH AN EXCEPTION IN PROCUREMENTS AND CONSIDERED THAT THE REGULATION SHOULD HAVE EQUAL APPLICATION TO THE CASE OF A SALE. WHILE, IN RECITING THE FACTS FOR THE RECORD, WE STATED IN THE DECISION THE RATIONALE USED BY THE CONTRACTING AGENCY IN ARRIVING AT ITS DETERMINATION TO AWARD THE CONTRACT, WE DID NOT MEAN TO IMPLY THAT WE ADOPTED THAT RATIONALE IN PERMITTING THE CONTRACT TO STAND. OUR DECISION WAS BASED ON THE FACT THAT THE GOVERNMENT WAS ADEQUATELY PROTECTED BY THE BID DEPOSIT. IN THAT CONNECTION, SEE B-144880, FEBRUARY 14, 1961, WHEREIN WE HELD THAT A CONTRACT AWARDED CONTRARY TO OUR HOLDING IN 38 COMP. GEN. 532 WAS ENFORCEABLE AGAINST THE CONTRACTOR. ON THE OTHER HAND, IN ANOTHER SALES CASE, B-152586, DECEMBER 23, 1963, WHERE THE ADMINISTRATIVE OFFICE REJECTED A BID NOT ACCOMPANIED BY THE REQUIRED BID GUARANTY, WE STATED THAT IT WOULD BE IMPROPER TO WAIVE THE REQUIREMENT THROUGH RELIANCE UPON PROCUREMENT REGULATIONS.

IN OTHER WORDS, IN THE ABSENCE OF A REGULATION PERMITTING THE WAIVER OF A REQUIREMENT FOR A BID BOND, IT HAS BEEN OUR POSITION THAT THE PROVISIONS OF 38 COMP. GEN. 532 SHOULD BE COMPLIED WITH AND THE BID BE REJECTED. HOWEVER, IN INSTANCES WHERE THE CONTRACTING OFFICER HAS WAIVED THE BID BOND DEFICIENCY CONTRARY TO THE CITED DECISION AND WE WERE NOT AWARE OF SUCH WAIVER UNTIL AFTER THE AWARD OF THE CONTRACT WE HAVE FELT THAT IN THE INTEREST OF THE GOVERNMENT IT WAS INCUMBENT UPON US TO SUSTAIN THE AWARD.

YOU CONTEND THAT REASONS WHICH GAVE RISE TO THE RULE IN 38 COMP. GEN. 532 ARE NOT PRESENT IN THIS CASE AND THE RULE THEREFORE SHOULD NOT APPLY. YOU SAY THAT THERE IS NO PREJUDICE TO OTHER BIDDERS BECAUSE THE BIDDER FURNISHED A BOND UNDER WHICH HE WOULD HAVE BEEN LIABLE IF HE REFUSED TO HONOR THE COMMITMENT IN HIS BID. YOU SAY FURTHER THAT A STRINGENT RULE WHICH REQUIRES REJECTION OF BID ANY TIME THE BID BOND IS DEFICIENT IN THE SLIGHTEST DEGREE IS TOTALLY INDEFENSIBLE. SUCH A RULE, YOU CONTEND, WOULD BE INCONSISTENT WITH THE LEGAL REQUIREMENT THAT ADVERTISED CONTRACTS OF THE GOVERNMENT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER.

WE DO NOT AGREE THAT NO PREJUDICE RESULTS TO OTHER BIDDERS WHERE A DEFICIENT BID BOND OF ANOTHER BIDDER IS CONSIDERED ACCEPTABLE. IN OUR VIEW IT IS UNFAIR TO THE OTHER BIDDERS BECAUSE IT AMOUNTS TO A CHANGE IN THE BID REQUIREMENTS AFTER THE OPENING OF BIDS. BIDDERS HAVE A RIGHT TO EXPECT THAT EVERYONE IS BIDDING ON THE SAME REQUIREMENTS. MOREOVER, SUCH PROCEDURE WOULD TEND TO WEAKEN THE COMPETITIVE BID SYSTEM FOR, AS WAS SAID IN 17 COMP. GEN. 554, 558, TO PERMIT PUBLIC OFFICERS TO ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS WOULD REDUCE TO A FARCE THE WHOLE PROCEDURE OF LETTING PUBLIC CONTRACTS ON AN OPEN COMPETITIVE BASIS. THUS, IT IS NECESSARY THAT THE SUCCESSFUL BIDDER BE SOMETHING MORE THAN THE LOWEST RESPONSIBLE BIDDER. THE SUCCESSFUL BIDDER ALSO MUST BE RESPONSIVE.

YOU POINT OUT THAT ANOTHER REASON FOR THE RULE IN 38 COMP. GEN. 532 IS THAT IT ELIMINATES THE NECESSITY FOR DETERMINING ON A CASE-BY-CASE BASIS WHETHER THE FAILURE TO SUBMIT A BOND WAS EXCUSABLE. YOU SUGGEST THAT THIS IS OBVIATED HERE SINCE A BOND WAS FURNISHED FULLY PROTECTING THE GOVERNMENT TO THE EXTENT OF $1,100,000. HOWEVER, THE FACT THAT A BOND IS DEFICIENT DOES CREATE A NEED FOR INQUIRY AS TO THE REASON FOR THE DEFICIENCY. PARAMOUNT IN SUCH A SITUATION IS THE QUESTION WHETHER THE SURETY CONSIDERS THAT THE BIDDER DOES NOT HAVE THE ABILITY TO QUALIFY FOR A LARGER BOND. THEREFORE, FURNISHING A DEFICIENT BOND, JUST AS FAILING TO FURNISH ANY BOND, RAISES THE QUESTION WHETHER THE INSUFFICIENCY IN THE PENAL SUM IS THE RESULT OF INADVERTENCE OR LACK OF QUALIFICATION. THOUGH IN THIS CASE THE DEFICIENCY IN THE PENAL SUM MAY HAVE RESULTED FROM INADVERTENCE, THE ARCHITECT OF THE CAPITOL WOULD HAVE HAD NO WAY OF KNOWING THAT WITHOUT EXPLORATION INTO THE SITUATION AFTER THE OPENING OF BIDS.

YOU STATE THAT BOTH MEMBERS OF THE JOINT VENTURE ARE ENGAGED IN A NUMBER OF SUBSTANTIAL PROJECTS FOR THE STATE AND FEDERAL GOVERNMENTS AND THE DISTRICT OF COLUMBIA AND HAVE SATISFACTORILY COMPLETED MANY SUCH PROJECTS IN THE PAST. HOWEVER, THE FACT THAT A BIDDER WHICH SUBMITTED A DEFICIENT BID BOND HAS BEEN ABLE TO DEMONSTRATE PARTICULAR CAPABILITY OR RESPONSIBILITY IS NOT A BASIS FOR CHANGING THE BID BOND REQUIREMENTS AFTER BIDS HAVE BEEN OPENED. B-140624, NOVEMBER 23, 1959.

FURTHER, IT IS YOUR POSITION THAT THE SECTIONS IN THE FPR AND ASPR, WHICH PROVIDES THAT A DEFICIENCY IN THE AMOUNT OF BID BOND MAY BE WAIVED WHEN THE AMOUNT OF THE BID BOND SUBMITTED IS GREATER THAN THE DIFFERENCE BETWEEN THE LOW AND THE NEXT HIGHER BID, ARE A RECOGNITION OF THE REQUIREMENTS OF LAW CONCERNING COMPETITIVE BIDDING AND THAT, THEREFORE, ALTHOUGH THOSE REGULATIONS ARE NOT SPECIFICALLY APPLICABLE TO THE ARCHITECT OF THE CAPITOL, THE RULE IN THOSE REGULATIONS SHOULD BE. HOWEVER, IT IS OUR VIEW THAT WHERE THE REQUIREMENT FOR BID SECURITY IS IMPOSED ONLY BY REGULATION, THE TERMS OF ITS APPLICABILITY AND THE EXCEPTIONS WHICH WILL BE PERMITTED ARE ALSO MATTERS TO BE ESTABLISHED BY REGULATION. 38 COMP. GEN. 827, 829; B-142614, JULY 18, 1960; AND B- 147468, NOVEMBER 7, 1961.

YOU STATE THAT THE REJECTION OF THE LOW BID IN THIS CASE WAS TANTAMOUNT TO REJECTING A BID BECAUSE IT IS SUBMITTED ON THE WRONG COLOR PAPER, CONTAINS A TYPOGRAPHICAL ERROR, OR FOR OTHER IRRELEVANT AND UNREASONABLE GROUNDS. YOU POINT OUT THAT IN NUMEROUS DECISIONS OUR OFFICE HAS RECOGNIZED THAT BIDS SHOULD NOT BE REJECTED FOR SUCH MINOR DEFECTS. IT IS TRUE THAT WHERE DEFICIENCIES HAVE RELATED TO FORM WE HAVE RECOGNIZED THEM AS BEING MINOR AND HAVE TREATED THE BIDS AS BEING RESPONSIVE. HOWEVER, WHEN THE DEFICIENCY GOES TO SUBSTANCE, WE HAVE RULED THAT THE BID IS NONRESPONSIVE. THIS IS THE POINT OF THE MATTER INVOLVED HERE. FEBRUARY 1959, IN 38 COMP. GEN. 532, OUR OFFICE ADOPTED THE VIEW THAT, WHERE AN ADMINISTRATIVE DETERMINATION IS MADE THAT BID BONDS SHOULD SUPPORT BIDS, THE FURNISHING OF SUCH BONDS SHOULD BE REGARDED AS A MATERIAL REQUIREMENT. OUR REASONS FOR THE RULE WERE STATED IN THE CITED DECISION AND HAVE BEEN REPEATED IN SUBSEQUENT DECISIONS, AND NEED NOT BE REPEATED HERE. SINCE IT IS NOW WELL SETTLED THAT THE BID BOND REQUIREMENT IS A MATERIAL PART OF THE INVITATION AND THE BID BOND OF THE JOINT VENTURE FAILED TO MEET THAT REQUIREMENT, THE GENERAL RULE APPLIES AND THE BID WHICH THE BOND ACCOMPANIED CANNOT BE REGARDED AS RESPONSIVE.

YOU HAVE CITED CASES WHICH YOU BELIEVE SHOULD REQUIRE A DIFFERENT RESULT. WE BELIEVE THOSE CASES ARE DISTINGUISHABLE. UNLIKE THE DECISION IN B-141791, FEBRUARY 19, 1960, 39 COMP. GEN. 595, THERE IS NO GENERAL FORMULA WHICH CAN BE APPLIED TO THE INFORMATION IN THE BID BOND ACCOMPANYING THE BID WHICH WILL MAKE IT COMPLIANT. THE AFFIDAVIT OF BUSINESS AFFILIATION CONSIDERED IN B-143073, JUNE 24, 1960, 39 COMP. GEN. 881, WAS FOR THE PURPOSE OF OBTAINING INFORMATION ABOUT THE BIDDER WHEREAS THE BID BOND IS OBTAINED AS SECURITY FOR THE BID. IN B 147303, OCTOBER 12, 1961, AND B-152589, NOVEMBER 18, 1963, THE BID BONDS WERE IN THE AMOUNTS REQUIRED BY THE INVITATIONS, WHICH IS NOT THE SITUATION HERE, AND THE ONLY QUESTION IN THE FORMER CASE, WHERE THE SIGNATURE BOX AND CERTIFICATE AS TO CORPORATE PRINCIPAL WERE UNEXECUTED BY THE BIDDER, AND THE LATTER CASE, WHERE ONLY ONE PARTNER SIGNED THE BOND, WAS WHETHER THE GOVERNMENT WAS PROTECTED TO THE REQUIRED EXTENT, THE BONDS HAVING BEEN PROPERLY EXECUTED IN ALL OTHER RESPECTS. IN B-148403, MAY 15, 1962, 41 COMP. GEN. 758, AND B 143404, SEPTEMBER 15, 1960, REFERRED TO BY YOU AS THE CASE REPORTED IN BROWN AND SON ELECTRIC CO. V. UNITED STATES, 325 F.2D 446, THE ONLY QUESTION WAS WHETHER THE AMOUNT OF THE BID BOND HAD TO BE A PERCENTAGE OF THE BASE BID OR THE BASE BID PLUS ADDITIONAL ITEMS. THAT QUESTION IS NOT INVOLVED HERE.

THE CASE IN B-144597, FEBRUARY 20, 1961, 40 COMP. GEN. 469, UNLIKE THE PRESENT CASE, INVOLVED A PROPER BID BOND WHICH WAS IN THE POSSESSION OF THE GOVERNMENT AT BID OPENING TIME, ALTHOUGH NOT WITH THE BID.

IN THE CASE OF B-144356, NOVEMBER 23, 1960, 40 COMP. GEN. 314, THE PENAL SUM WAS BLANK ON THE BOND BUT FROM A READING OF THE BOND AND THE BID TO WHICH IT WAS ATTACHED IT WAS MANIFEST THAT THE INTENTION WAS TO MEET THE INVITATION REQUIREMENT. THAT IS NOT THE CASE HERE, SINCE THE BOND IS NOT BLANK BUT IS SPECIFIC ON ITS FACE AS TO THE PENAL AMOUNT AND THAT AMOUNT IS LESS THAN THAT REQUIRED BY THE INVITATION.

THE STATEMENT IN B-152053, SEPTEMBER 17, 1963, 43 COMP. GEN. 268, INDICATING THAT THE BID GUARANTEE PROVISIONS SHOULD NOT BE ENFORCED WHEN WAIVER OF THOSE PROVISIONS WOULD NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS WHO HAVE SUBMITTED FULLY RESPONSIVE BIDS IS NOT APPLICABLE SINCE, AS ABOVE INDICATED, A WAIVER IN THE IMMEDIATE CASE WOULD BE UNFAIR TO OTHER BIDDERS.

WHILE IN B-140304, SEPTEMBER 21, 1959, 39 COMP. GEN. 209, OUR OFFICE AUTHORIZED CORRECTION OF AN ERROR IN BID PRICE AND ADJUSTMENT OF BID SECURITY ACCOMPANYING THE BID CONSISTENT WITH THE BID PRICE CORRECTION, THAT CONCLUSION WAS BASED ON THE PREMISE THAT THE BID BEING CORRECTED AND THE BOND BEING ADJUSTED TO CONFORM TO THE CORRECTION ACTUALLY WERE RESPONSIVE AS SUBMITTED. THE RULE IS THAT ONLY RESPONSIVE BIDS MAY BE CORRECTED. 38 COMP. GEN. 876, 878.

THE BIDDER IN B-141872, MARCH 7, 1960, 39 COMP. GEN. 619, WAS ALLOWED TO HAVE ITS LATE BID GUARANTEE CONSIDERED BECAUSE IT WAS ESTABLISHED THAT THE LATE RECEIPT WAS DUE TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS ENTITLED TO BE EXCUSED UNDER THE SPECIFIC TERMS OF THE BIDDING TERMS AND CONDITIONS IN THE INVITATION FOR BIDS. THE REASON WHICH WAS CONSIDERED WAS SPECIFICALLY PROVIDED FOR IN THE INVITATION FOR BIDS, BUT THE REASON WHICH YOU WOULD HAVE US CONSIDER IN YOUR CASE IS NOT PROVIDED FOR IN THE IMMEDIATE INVITATION.

THE CASE IN B-142869, MAY 27, 1960, 39 COMP. GEN. 796, IS DIFFERENT, OF COURSE, FROM THE IMMEDIATE CASE IN THAT IN THE CITED CASE THERE WAS ONLY ONE BIDDER. IN THOSE CIRCUMSTANCES NO OTHER BIDDER WAS PREJUDICED BY ACCEPTANCE OF THE BID ACCOMPANIED BY AN INSUFFICIENT BID DEPOSIT.

WE DO NOT FIND OUR DECISIONS IN THIS CASE AT VARIANCE WITH PRESTEX, INC. V. UNITED STATES, 320 F.2D 367, SINCE IT RECOGNIZES THAT FAILURE TO MEET A MATERIAL REQUIREMENT MAKES A BID NONRESPONSIVE. MOREOVER, WE BELIEVE THAT THE RATIONALE CONSIDERED IN 38 COMP. GEN. 532 REQUIRES A DIFFERENT VIEW WITH RESPECT TO THE WAIVER OF BID BOND REQUIREMENTS THAN THAT WHICH WAS FOLLOWED IN ADELHARDT CONSTRUCTION CO. V. UNITED STATES, 107 F.SUPP. 845.

YOU HAVE ALSO QUESTIONED WHETHER AN AWARD SHOULD HAVE BEEN MADE TO THE SUCCESSFUL BIDDER, SINCE, WHILE IT RESPONDED TO THE SOLICITATION FOR A PRINCIPAL BID, THERE WAS NO RESPONSE ON AN ALTERNATE ITEM SOLICITING A DEDUCTION IF THE TIME SCHEDULE SHOULD BE EXTENDED UPON AWARD OF THE CONTRACT. OUR OFFICE HAS BEEN ADVISED THAT BEFORE AN AWARD WAS MADE TO THE SUCCESSFUL BIDDER IT WAS DETERMINED THAT THE NEEDS OF THE GOVERNMENT WERE SUCH THAT COMPLETION OF THE WORK WOULD BE REQUIRED ACCORDING TO THE SCHEDULE COVERED BY THE PRINCIPAL BID. SINCE IT WAS DECIDED THAT THE AWARD WOULD BE MADE ON THE PRINCIPAL BID ONLY, THE FACT THAT THE SUCCESSFUL BIDDER OMITTED AN ALTERNATE BID WHICH WAS NOT NECESSARY TO THE EVALUATION OF BIDS WAS OF NO SIGNIFICANCE. B-147038, SEPTEMBER 7, 1961; B -148081, MARCH 5, 1962; AND B-149610, DECEMBER 11, 1962.

IN VIEW OF THE FOREGOING, THE DECISIONS OF AUGUST 3 AND 6, 1964, ARE AFFIRMED.