B-141362, FEB. 19, 1960

B-141362: Feb 19, 1960

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A COPY OF WHICH WAS FURNISHED US. 446 SHOULD HAVE BEEN FURNISHED. YOUR BID WAS REJECTED FOR FAILURE TO CONFORM TO THE BID DEPOSIT REQUIREMENT. THAT THE GOVERNMENT WAS AMPLY PROTECTED BY THE $15. 000 ON WHICH YOU OTHERWISE WOULD HAVE BEEN THE SUCCESSFUL BIDDER. YOU NOTE FURTHER THAT THE ACCEPTANCE OF YOUR BID AS TO THE ITEMS ON WHICH YOU WERE HIGH WOULD HAVE RESULTED IN AN ADDITIONAL RETURN TO THE GOVERNMENT OF $1. WE HAVE NOT YET DECIDED WHETHER THE RULE SHOULD BE APPLIED IN INSTANCES SUCH AS HERE PRESENTED NOR DOES IT APPEAR NECESSARY TO DECIDE THE MATTER AT THIS TIME. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT YOUR FIRM HAS REPEATEDLY SUBMITTED BID SECURITY INSUFFICIENT TO MEET INVITATION REQUIREMENTS.

B-141362, FEB. 19, 1960

TO MARLENE BLOUSE CORPORATION:

WE REFER TO OUR LETTER OF NOVEMBER 25, 1959, TO THE COMMANDING OFFICER, NAVAL SUPPLY DEPOT, MECHANICSBURG, PENNSYLVANIA, A COPY OF WHICH WAS FURNISHED US, PROTESTING THE REJECTION OF YOUR BID SUBMITTED PURSUANT TO INVITATION NO. B-99-60-60038 ISSUED NOVEMBER 9, 1959, FOR THE SALE OF VARIOUS ITEMS OF SURPLUS PROPERTY.

THE INVITATION PROVIDES ON PAGE 1,"A BID DEPOSIT OF 20 PERCENT OF THE TOTAL AMOUNT BID * * * MUST ACCOMPANY THE BID.' AGAINST A BID DEPOSIT IN THE FORM OF A $15,000 ANNUAL BID BOND, YOU BID ON 33 ITEMS IN THE INVITATION AT A TOTAL BID PRICE OF APPROXIMATELY $167,230. UNDER THE CLEAR LANGUAGE OF THE INVITATION, THEREFORE, A DEPOSIT OF NOT LESS THAN $33,446 SHOULD HAVE BEEN FURNISHED. YOUR BID WAS REJECTED FOR FAILURE TO CONFORM TO THE BID DEPOSIT REQUIREMENT.

YOU CONTEND, HOWEVER, THAT THE GOVERNMENT WAS AMPLY PROTECTED BY THE $15,000 ANNUAL BID BOND AS TO THE 50 UNITS AT A TOTAL PRICE OF $10,000 ON WHICH YOU OTHERWISE WOULD HAVE BEEN THE SUCCESSFUL BIDDER. YOU NOTE FURTHER THAT THE ACCEPTANCE OF YOUR BID AS TO THE ITEMS ON WHICH YOU WERE HIGH WOULD HAVE RESULTED IN AN ADDITIONAL RETURN TO THE GOVERNMENT OF $1,250.

IN OUR DECISION AT 38 COMP. GEN. 532, WE HELD THAT A BID SECURITY REQUIREMENT STATED IN AN INVITATION MUST BE REGARDED AS MATERIAL, NONCOMPLIANCE WITH WHICH RENDERS THE BID NONRESPONSIVE. WE HAVE NOT YET DECIDED WHETHER THE RULE SHOULD BE APPLIED IN INSTANCES SUCH AS HERE PRESENTED NOR DOES IT APPEAR NECESSARY TO DECIDE THE MATTER AT THIS TIME.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT YOUR FIRM HAS REPEATEDLY SUBMITTED BID SECURITY INSUFFICIENT TO MEET INVITATION REQUIREMENTS. IT HAS ALWAYS BEEN OUR POSITION THAT THE HABITUAL FAILURE OF A BIDDER TO COMPLY WITH SUCH BID SECURITY REQUIREMENTS JUSTIFIES, AND INDEED NECESSITATES, THE REJECTION OF HIS BID. 16 COMP. GEN. 493. REGARD THE RULE AS APPLICABLE IN THIS CASE.

ACCORDINGLY, WE SEE NO LEGAL BASIS UPON WHICH TO QUESTION THE ACTION OF THE CONTRACTING OFFICER IN THIS INSTANCE.