A-84238, MARCH 4, 1937, 16 COMP. GEN. 809

A-84238: Mar 4, 1937

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ADVERTISING - BIDS - FURNISHING OF BID BOND IN LIEU OF GUARANTEE REQUIRED - WAIVER AS AN INFORMALITY WHILE IT IS DESIRABLE THAT ALL BIDDERS BE ON AN EQUAL FOOTING IN THE MATTER OF BID GUARANTEES. " IS AN IRREGULARITY NOT GOING TO THE SUBSTANCE OF THE CONTRACT OR ITS PERFORMANCE AND MAY BE WAIVED AS AN INFORMALITY WHERE IN THE INTEREST OF THE UNITED STATES. 1937: I HAVE YOUR LETTER OF FEBRUARY 26. AS FOLLOWS: ENCLOSED IS LETTER OF FEBRUARY 11. WAS THE LOWEST RECEIVED FOR THIS WORK. THIS FORM OF GUARANTEE IS SATISFACTORY TO THE LIGHTHOUSE SERVICE. SINCE IT WAS FURNISHED FOR THE PROTECTION OF THE INTERESTS OF THE UNITED STATES AND NOT FOR THE BENEFIT OF THE COMPETING BIDDERS. IT IS THE DEPARTMENT'S OPINION THAT THE FORM OF GUARANTEE FURNISHED BY MR.

A-84238, MARCH 4, 1937, 16 COMP. GEN. 809

ADVERTISING - BIDS - FURNISHING OF BID BOND IN LIEU OF GUARANTEE REQUIRED - WAIVER AS AN INFORMALITY WHILE IT IS DESIRABLE THAT ALL BIDDERS BE ON AN EQUAL FOOTING IN THE MATTER OF BID GUARANTEES, THE FURNISHING OF A GUARANTY BOND WITH A BID, IN LIEU OF A CERTIFIED CHECK OR UNITED STATES BONDS AS REQUIRED BY SPECIFICATIONS RESERVING THE RIGHT TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY INFORMALITY IN BIDS "AS THE INTEREST OF THE GOVERNMENT MAY REQUIRE," IS AN IRREGULARITY NOT GOING TO THE SUBSTANCE OF THE CONTRACT OR ITS PERFORMANCE AND MAY BE WAIVED AS AN INFORMALITY WHERE IN THE INTEREST OF THE UNITED STATES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, MARCH 4, 1937:

I HAVE YOUR LETTER OF FEBRUARY 26, 1937, AS FOLLOWS:

ENCLOSED IS LETTER OF FEBRUARY 11, 1937, FROM THE SUPERINTENDENT OF LIGHTHOUSES, PHILADELPHIA, PA., AND ITS ENCLOSURES REGARDING THE PROTEST OF THE GENERAL CONTRACTING COMPANY TO THE AWARD OF CONTRACT TO S. D. COLLINS, PORT PENN, DELAWARE, FOR INSTALLING NEW FENDER PILES, INCLUDING TWO CLUSTERS, AND REPLACING BANDS ON SOUTH WHARF AT THE EDGEMOOR LIGHTHOUSE DEPOT, EDGEMOOR, DELAWARE.

THE BID OF S. D. COLLINS IN THE AMOUNT OF $1,887.50, WAS THE LOWEST RECEIVED FOR THIS WORK, BUT THIS BIDDER FURNISHED A GUARANTY BOND WITH HIS BID INSTEAD OF A CERTIFIED CHECK OR U.S. BONDS AS REQUIRED BY THE INVITATION FOR BIDS. HOWEVER, THIS FORM OF GUARANTEE IS SATISFACTORY TO THE LIGHTHOUSE SERVICE, AND SINCE IT WAS FURNISHED FOR THE PROTECTION OF THE INTERESTS OF THE UNITED STATES AND NOT FOR THE BENEFIT OF THE COMPETING BIDDERS, IT IS THE DEPARTMENT'S OPINION THAT THE FORM OF GUARANTEE FURNISHED BY MR. COLLINS SHOULD BE ACCEPTED AND THE CONTRACT AWARDED TO HIM AS THE LOWEST AND MOST ADVANTAGEOUS BID RECEIVED FOR THIS WORK.

IN VIEW OF THE PROTEST THAT HAS BEEN FILED IN THIS CASE, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THE FORM OF GUARANTEE FURNISHED BY S. D. COLLINS MAY BE ACCEPTED AND THE CONTRACT AWARDED TO HIM. SINCE IT IS DESIRED TO PREPARE THE CONTRACT FOR THE EXECUTION OF THIS WORK AT THE EARLIEST PRACTICABLE DATE, IT IS REQUESTED THAT YOUR DECISION IN THE MATTER BE EXPEDITED.

IN DECISION OF JANUARY 26, 1933, A-46606, TO THE SECRETARY OF THE TREASURY, IT WAS SAID:

IT APPEARS THAT FOUR BIDS WERE RECEIVED FOR THE FURNISHING OF THE ELEVATORS AND THAT THE BID OF THE WARSAW ELEVATOR COMPANY IN THE SUM OF $1,944 WAS THE LOWEST BID RECEIVED. THE RECORD DISCLOSES, HOWEVER, THAT THE SAID LOW BID WAS REJECTED FOR THE STATED REASON THAT "THE LOW BIDDER SUBMITTED A BID BOND, AND SPECIFICATION REQUIREMENTS SPECIFICALLY STATED THE GUARANTEE SHOULD BE CERTIFIED CHECK OR MONEY ORDER.' PARAGRAPH 16 OF THE STANDARD INSTRUCTIONS TO BIDDERS PROVIDES THAT THE CONTRACT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER COMPLYING WITH THE CONDITIONS OF THE INVITATION FOR BIDS, PROVIDED HIS BID IS REASONABLE AND IT IS IN THE INTEREST OF THE UNITED STATES TO ACCEPT IT, AND THE GOVERNMENT RESERVED THE RIGHT TO WAIVE INFORMALITIES IN BIDS RECEIVED.

THE FACTS IN THIS CASE CLEARLY SHOW THAT THE REJECTION OF THE LOW BID WAS BASED UPON MATTERS OF FORM NOT AFFECTING THE QUANTITY, QUALITY, CHARACTER, OR DESCRIPTION OF THE WORK TO BE PERFORMED, THE PRICE TO BE CHARGED, OR ANY OTHER TERMS OR CONDITIONS OF PERFORMANCE. THE ADMINISTRATIVE ACTION IN REJECTING THE LOW BID IN THIS CASE MERELY BECAUSE THE LOW BIDDER SUBMITTED WITH ITS BID A BID BOND INSTEAD OF A CERTIFIED CHECK OR MONEY ORDER, WAS NOT AUTHORIZED.

IT APPEARS IN THE PRESENT CASE THAT THE BID OF THE GENERAL CONTRACTING COMPANY, THE PROTESTING BIDDER, WAS $267.50 MORE THAN THE BID OF S. D. COLLINS. THE INVITATION FOR BIDS CONTAINED THE USUAL RESERVATION "AS THE INTEREST OF THE GOVERNMENT MAY REQUIRE" TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY INFORMALITY IN BIDS RECEIVED. NOTHING APPEARS TO INDICATE THAT S. D. COLLINS IS NOT A RESPONSIBLE BIDDER OR THAT IT WOULD BE IN THE INTEREST OF THE UNITED STATES TO REJECT HIS BID. THE REQUIREMENT FOR THE SUBMISSION OF BID GUARANTEES IS MAINLY FOR THE PROTECTION OF THE UNITED STATES TO INSURE THAT THE SUCCESSFUL BIDDER WILL EXECUTE A CONTRACT AND FURNISH A PERFORMANCE BOND. THE CHARACTER OF SUCH GUARANTEE IS A MATTER OF FORM AND NOT OF SUBSTANCE, IF THE INTERESTS OF THE UNITED STATES IN THIS RESPECT ARE ADEQUATELY PROTECTED. WHILE IT IS DESIRABLE THAT ALL BIDDERS BE PLACED ON AN EQUAL FOOTING IN THE MATTER OF BID GUARANTEES, IT IS SETTLED THAT OTHER BIDDERS HAVE NO SUCH INTEREST AS TO REQUIRE THE REJECTION OF A BID ADVANTAGEOUS TO THE UNITED STATES BECAUSE OF THE FORM OF THE BID GUARANTEE SUBMITTED. THE IRREGULARITY DOES NOT GO TO THE SUBSTANCE OF THE CONTRACT OR ITS PERFORMANCE, AND MAY BE WAIVED AS THE INTERESTS OF THE UNITED STATES MAY REQUIRE. SEE 7 COMP. GEN. 568; 14 ID. 305; ID. 559, 16 ID. 65; ID. 493.

ACCORDINGLY, ON THE FACTS SUBMITTED, YOU ARE ADVISED THAT AN AWARD OF THE CONTRACT TO S. D. COLLINS IS AUTHORIZED.