B-139895, AUGUST 21, 1959, 39 COMP. GEN. 122

B-139895, AUGUST 21, 1959, 39 COMP. GEN. 122

CONTRACTS - BID BONDS - FAILURE TO EXTEND EFFECTIVE DATE OF BOND - PROPRIETY OF AWARD A BID BOND ON WHICH THE EFFECTIVE DATE WAS NOT EXTENDED WHEN THE LOW BIDDER--- ALONG WITH OTHER BIDDERS--- WAS REQUESTED TO AND DID EXTEND THE TIME FOR BID ACCEPTANCE MAY BE DISTINGUISHED FROM A CASE WHERE FAILURE TO COMPLY WITH A BID BOND REQUIREMENT RENDERS THE BID NONRESPONSIVE OR WHERE A WAIVER OF THE BOND REQUIREMENTS WOULD BE PREJUDICIAL TO OTHER BIDDERS; THEREFORE, AN AWARD TO A LOW BIDDER WHO WAS NOT REQUESTED TO EXTEND HIS BID BOND OR TO SUBMIT PROOF OF FORMAL EXTENSION OF THE BID BOND IS NOT IMPROPER.

TO THE WISE CONTRACTING COMPANY, INCORPORATED, AUGUST 21, 1959:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 11, 1959, PROTESTING THE AWARD OF A CONTRACT TO VIRGINIA ENGINEERING COMPANY, INC., BY THE GENERAL SERVICES ADMINISTRATION, FOR THE CONSTRUCTION OF A POST OFFICE BUILDING AT PORTSMOUTH, VIRGINIA. YOU CONTEND THAT SINCE THE ACCEPTANCE DATE WAS EXTENDED AT THE REQUEST OF THE CONTRACTING OFFICIALS BY THE ABOVE-NAMED BIDDER WITHOUT OBTAINING A CORRESPONDING EXTENSION OF ITS BID BOND SUCH BID BECAME INVALID AND, THEREFORE, MAY NOT LEGALLY BE ACCEPTED BY THE GOVERNMENT.

IN CONNECTION WITH YOUR PROTEST A FACTUAL REPORT DATED JULY 30, 1959, FROM THE ACTING COMMISSIONER, PUBLIC BUILDINGS SERVICE, GENERAL SERVICES ADMINISTRATION, HAS BEEN FURNISHED US WHICH DISCLOSES THAT SUCH AN EXTENSION OF TIME FOR THE ACCEPTANCE OF THE BIDS WAS OBTAINED FROM THE THREE BIDDERS WHO APPEARED TO BE THE LOWEST. HOWEVER, THE AGENCY DID NOT REQUEST THOSE BIDDERS TO OBTAIN OR TO SUBMIT PROOF OF FORMAL EXTENSIONS OF BID BOND COVERAGES, AND IT WAS NOT ASCERTAINED WHETHER THE SURETY OF VIRGINIA ENGINEERING COMPANY, INC., EXTENDED THE EFFECTIVE DATE OF ITS ORIGINAL BID BOND.

BIDDERS WERE REQUIRED UNDER THE TERMS OF THE INVITATION TO SUBMIT A BID GUARANTY IN THE AMOUNT OF TWO PERCENT OF THEIR BIDS TO INDEMNIFY THE GOVERNMENT IN THE EVENT THE SUCCESSFUL BIDDER REFUSED TO EXECUTE A CONTRACT UPON ACCEPTANCE OF ITS BID. THE LOW BIDDER COMPLIED WITH THAT STIPULATION. THE EXTENSION OF THE TIME FOR ACCEPTANCE WAS REQUESTED BY AND FOR THE BENEFIT OF THE GOVERNMENT. THERE WAS NOTHING IN THE BID FORM STIPULATIONS THAT REQUIRED AN EXTENSION OF THE BID BOND. THE LOW BIDDER IN THIS INSTANCE FULLY COMPLIED WITH ALL OF THE PREREQUISITES NECESSARY TO CONSTITUTE THE FILING OF A COMPLETE AND RESPONSIVE BID.

IN A RECENT DECISION DATED FEBRUARY 5, 1959, 38 COMP. GEN. 532, WE HELD THAT THE BID BOND REQUIREMENT OF AN INVITATION IS A MATERIAL PART THEREFOR WHICH MAY NOT BE WAIVED, AND NONCOMPLIANCE REQUIRES THE REJECTION OF SUCH BID AS NONRESPONSIVE. HOWEVER, THERE IS A CLEAR DISTINCTION BETWEEN THAT CASE AND THE INSTANT MATTER IN THAT HERE THE INVITATION DID NOT REQUIRE THAT PROSPECTIVE BIDDERS OBTAIN AN EXTENSION OF THEIR ORIGINAL BID BOND, OR FURNISH AN ADDITIONAL BOND IN THE EVENT THE ACCEPTANCE PERIOD WAS EXTENDED BEYOND THE DATE FIXED BY THE TERMS OF THE INVITATION. IN OTHER WORDS, THERE IS NOT INVOLVED HERE A FAILURE TO COMPLY WITH A REQUIREMENT OF THE INVITATION WHICH RENDERED THE BID NONRESPONSIVE; NOR IS THERE INVOLVED HERE THE WAIVER OF A MATERIAL REQUIREMENT OF THE INVITATION TO THE PREJUDICE OF OTHER BIDDERS.

UNDER THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR DISTURBING THE ACTION TAKEN BY THE GENERAL SERVICES ADMINISTRATION IN ACCEPTING THE LOW BID RECEIVED IN THIS PROCUREMENT.