B-143479, SEP. 8, 1960

B-143479, SEP. 8, 1960

TO MR. M. F. BERG, PRESIDENT, BERG PIPE AND STEEL CORPORATION:

WE REFER TO YOUR TELEFAX OF JULY 12, 1960, PROTESTING AN AWARD TO ANOTHER FIRM UNDER SALES INVITATION NO. B-37-60-60050, WHICH MATTER IS THE SUBJECT OF A REPORT, DATED AUGUST 9, 1960, FORWARDED TO THIS OFFICE BY THE DEPARTMENT OF THE NAVY.

THE SALES INVITATION WAS ISSUED ON JUNE 16, 1960, BY THE UNITED STATES MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, AND IT OFFERED FOR SALE 400 LANDING MATS, ASSEMBLED, AND 2,000 AMMUNITION BOXES. THE INVITATION STATES THAT "A BID DEPOSIT OF 20 PERCENT OF THE TOTAL AMOUNT BID, IN THE FORM OF POSTAL OR EXPRESS MONEY ORDER, OR CASHIER'S OR CERTIFIED CHECK, OR SUCH OTHER FORM OF SECURITY AS MAY BE ACCEPTABLE TO THE CONTRACTING OFFICER, MADE PAYABLE TO THE TREASURER OF THE UNITED STATES, MUST ACCOMPANY THE BID.'

BIDS WERE OPENED ON JUNE 30, 1960, AND IT WAS FOUND THAT THE HIGH BID, IN THE TOTAL AMOUNT OF $20,880, WAS SUBMITTED BY THE DALTON PIPE COMPANY. WAS NOTICED, HOWEVER, THAT THE BID DEPOSIT OF $4,200 FROM THIS FIRM WAS IN THE FORM OF A PERSONAL CHECK AND WAS NOT CERTIFIED. THE ASSISTANT CONTRACTING OFFICER, WHO CONDUCTED THE SALE IN THE ABSENCE OF THE CONTRACTING OFFICER, NOTIFIED DALTON THAT THE GOVERNMENT COULD NOT ACCEPT THE BID IN ITS PRESENT FORM. DALTON THEREUPON OFFERED TO IMMEDIATELY CASH THE CHECK AT THE BANK AND PRESENT THE REQUIRED DEPOSIT IN CASH. UPON CONSIDERATION, IT WAS ADMINISTRATIVELY DETERMINED THAT THE CONTRACTING OFFICER COULD ACCEPT THE DALTON BID IF HE CONSIDERED IT TO BE IN THE BEST INTERESTS OF THE GOVERNMENT. ON JULY 7, 1960, THE CONTRACTING OFFICER AWARDED THE ITEMS OF THE SUBJECT SALE TO DALTON.

THE SECOND HIGH BIDDER, BERG PIPE AND STEEL CORPORATION, SUBMITTED A TOTAL BID OF $20,708. IT PROTESTS ON THE BASIS THAT SINCE THE SUCCESSFUL BIDDER OFFERED A PERSONAL CHECK AS HIS BID DEPOSIT, HE WAS UNQUALIFIED FOR AWARD.

IN OUR DECISION OF FEBRUARY 5, 1959, B-137319 (38 COMP. GEN. 532), WE CONCLUDED THAT A WAIVER OF A MANDATORY BID BOND REQUIREMENT IN AN INVITATION FOR BIDS SHOULD NOT BE PERMITTED. THE PURPOSE OF THE RULE IS TO PRECLUDE CONSIDERATION FOR AWARD OF A BID UNACCOMPANIED BY A VALID BID BOND, UPON WHICH THE GOVERNMENT WOULD HAVE RECOURSE IF THE BIDDER FAILED TO GO FORWARD WITH FAITHFUL PERFORMANCE OF THE CONTRACT. SEE B-140081, SEPTEMBER 9, 1959. IN THIS CASE THE INVITATION SPECIFICALLY PERMITTED A BID DEPOSIT IN SUCH FORM AS MIGHT BE ACCEPTABLE TO THE CONTRACTING OFFICER AND IT WAS ADMINISTRATIVELY DETERMINED THAT THE BID DEPOSIT IN THE FORM OFFERED DID NOT REQUIRE REJECTION OF THE BID. ON THIS BASIS THE BID OF DALTON PIPE COMPANY WAS ACCEPTED. THE BID DEPOSIT OFFERED HERE WAS IN THE REQUIRED AMOUNT AND THE ONLY QUESTION CONCERNS THE FORM OF THE DEPOSIT. THE DEPOSIT OFFERED BY DALTON WAS DETERMINED TO SUFFICIENTLY PROTECT THE GOVERNMENT'S INTERESTS AS PERMITTED BY THE INVITATION. SEE B-139406, SEPTEMBER 18, 1959, COPY ENCLOSED.