B-139753, JUNE 19, 1959, 38 COMP. GEN. 851

B-139753: Jun 19, 1959

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CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - BID BOND SUFFICIENCY A LOW BID WHICH IS ACCOMPANIED BY A BID BOND IN AN AMOUNT WHICH IS LESS THAN THE AMOUNT REQUIRED BY THE INVITATION IS A BID WHICH CONTAINS A MATERIAL DEVIATION FROM THE REQUIREMENTS AND THEREFORE MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION. YOU HAVE REQUESTED OUR ADVICE REGARDING THE DISPOSITION OF THE LOW BID SUBMITTED BY THE HATCHER CONSTRUCTION COMPANY FOR THE INSTALLATION OF A RESEARCH CHEMISTRY LABORATORY IN BUILDING NO. 4. STATES IN PERTINENT PART: BID GUARANTY IS REQUIRED IN ACCORDANCE WITH ARTICLE 4 OF THE INSTRUCTIONS TO BIDDERS IN AN AMOUNT NOT LESS THAN 25 PERCENT OF THE AMOUNT OF THE BID.

B-139753, JUNE 19, 1959, 38 COMP. GEN. 851

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - BID BOND SUFFICIENCY A LOW BID WHICH IS ACCOMPANIED BY A BID BOND IN AN AMOUNT WHICH IS LESS THAN THE AMOUNT REQUIRED BY THE INVITATION IS A BID WHICH CONTAINS A MATERIAL DEVIATION FROM THE REQUIREMENTS AND THEREFORE MUST BE REJECTED AS NONRESPONSIVE TO THE INVITATION.

TO G. R. ENOS, VETERANS ADMINISTRATION HOSPITAL, JUNE 19, 1959:

BY LETTER OF MAY 25, 1959, REFERENCE 5224-134, YOU HAVE REQUESTED OUR ADVICE REGARDING THE DISPOSITION OF THE LOW BID SUBMITTED BY THE HATCHER CONSTRUCTION COMPANY FOR THE INSTALLATION OF A RESEARCH CHEMISTRY LABORATORY IN BUILDING NO. 4, SMALL ANIMAL LABORATORY, OF THE VETERANS ADMINISTRATION HOSPITAL UNDER PROJECT NO. M AND R 104-8264-2 IN ACCORDANCE WITH SPECIFICATION NO. 138-5224-S-4.

THE INVITATION ISSUED APRIL 21, 1959, STATES IN PERTINENT PART:

BID GUARANTY IS REQUIRED IN ACCORDANCE WITH ARTICLE 4 OF THE INSTRUCTIONS TO BIDDERS IN AN AMOUNT NOT LESS THAN 25 PERCENT OF THE AMOUNT OF THE BID.

ARTICLE 4 OF THE INSTRUCTIONS TO BIDDERS PROVIDES IN PART:

BID GUARANTY. WHERE SECURITY IS REQUIRED, FAILURE TO SUBMIT THE SAME WITH THE BID, OR OTHERWISE FURNISH IT PRIOR TO THE TIME SET FOR OPENING, WILL RESULT IN REJECTION OF THE BID AS NONRESPONSIVE.

THE LOW BID WAS SUBMITTED BY THE HATCHER COMPANY IN THE AMOUNT OF $6,425. THE OTHER BID AT $7,693.48 WAS SUBMITTED BY THE HARVEY PLUMBING COMPANY. THE BID BOND SUBMITTED BY THE LOW BIDDER WITH HIS BID IS IN THE AMOUNT OF " TWENTY PERCENT (20 PERCENT), NOT TO EXCEED ONE THOUSAND, FIVE HUNDRED AND NO/100 ($1,500.00) DOLLARS, OF THE AMOUNT OF THE BID.'

SINCE UNDER THE TERMS OF THE INVITATION A BID TO BE CONSIDERED FOR AWARD MUST BE ACCOMPANIED BY A BOND FOR NOT LESS THAN 25 PERCENT OF THE BID, WHILE THE BID BOND SUBMITTED BY THE LOW BIDDER IS FOR ONLY 20 PERCENT OF THE AMOUNT BID, YOU REQUEST OUR OPINION AS TO WHETHER THE LOW BID SHOULD BE REJECTED AS NONRESPONSIVE.

IN OUR DECISION, B-137319, FEBRUARY 5, 1959 (38 COMP. GEN. 532), WE HELD THAT BEGINNING WITH ANY INVITATION ISSUED MORE THAN 60 DAYS AFTER THE DATE OF SUCH DECISION NONCOMPLIANCE WITH A REQUIREMENT OF THE INVITATION THAT A BID BOND OR OTHER BID SECURITY BE SUBMITTED WITH THE BID WOULD BE HELD TO REQUIRE REJECTION OF THE BID AS NONRESPONSIVE. THE REASONS FOR THAT DECISION ARE FULLY STATED THEREIN AND NEED NOT BE REPEATED HERE.

WE HAVE NO INFORMATION AT THIS TIME WHETHER IN THE PRESENT INSTANCE THE FAILURE TO SUBMIT A BID BOND IN THE FORM REQUIRED WAS DUE TO INADVERTENCE OR OTHERWISE, IT IS OUR UNDERSTANDING, HOWEVER, THAT THE WILLINGNESS OF A SURETY TO GIVE A BID BOND IN THE AMOUNT OF 20 PERCENT OF THE TOTAL BID BUT NOT TO EXCEED $1,500 WOULD NOT NECESSARILY IMPORT A WILLINGNESS TO GIVE A LARGER BID BOND WHICH WAS NECESSARY TO RESPOND PROPERLY TO THE TERMS OF THE INVITATION. AS WE INDICATED IN OUR DECISION CITED ABOVE, A BID BOND REQUIREMENT CONSTITUTES A MATERIAL PART OF THE INVITATION, NONCOMPLIANCE WITH WHICH RENDERS THE BID NONRESPONSIVE. THEREFORE, WE MUST CONCLUDE THAT THE LOW BID SUBMITTED BY THE HATCHER COMPANY MAY NOT BE CONSIDERED FOR AWARD.