B-144040, NOV. 10, 1960

B-144040: Nov 10, 1960

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IT WAS FOUND THAT YOURS. WAS THE LOWEST OF THREE BIDS SUBMITTED ON THE PROJECT. THE OTHER TWO BID PRICES WERE $49. WAS ACCOMPANIED BY A BID DEPOSIT IN THE AMOUNT OF ONLY $2. WHICHEVER IS THE LESSER AMOUNT WILL BE REQUIRED WITH EACH BID IF THE BID PRICE IS IN EXCESS OF $2. FAILURE TO SUBMIT BID BOND WITH BID WILL CAUSE BID TO BE REJECTED.'. SINCE YOUR BID DEPOSIT WAS NOT 20 PERCENT OF THE BID AS REQUIRED BY THE TERMS OF THE QUOTED PROVISION. IT WAS PROPOSED THAT YOUR BID SHOULD BE REJECTED AS NOT CONFORMING TO THE TERMS OF THE INVITATION. YOU WERE SO ADVISED. IT IS YOUR POSITION THAT SINCE THE ERROR WAS MADE IN GOOD FAITH AND YOU OFFERED TO SUPPLY THE REMAINDER IMMEDIATELY AFTER BEING INFORMED OF THE DEFICIENCY.

B-144040, NOV. 10, 1960

TO M. HEFFRON AND SON:

BY LETTER OF SEPTEMBER 17, 1960, YOU PROTESTED AGAINST THE PROPOSED REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO INVITATION NO. ENG 19- 016-61-10, ISSUED SEPTEMBER 1, 1960, BY THE CORPS OF ENGINEERS, FOR THE PAVING OF SERVICE ROADS AT THE SATELLITE TRACKING STATION AT NEW BOSTON, NEW HAMPSHIRE.

UPON OPENING OF BIDS AS SCHEDULED ON SEPTEMBER 15, 1960, IT WAS FOUND THAT YOURS, AT $47,350, WAS THE LOWEST OF THREE BIDS SUBMITTED ON THE PROJECT. THE OTHER TWO BID PRICES WERE $49,587 AND $49,883. YOUR BID, HOWEVER, WAS ACCOMPANIED BY A BID DEPOSIT IN THE AMOUNT OF ONLY $2,500, NOTWITHSTANDING THE FOLLOWING PROVISION OF THE INVITATION:

"5. BID BOND ON U.S. STANDARD FORM NO. 24 IN A PENAL SUM OF NOT LESS THAN 20 PERCENT OF THE BID PRICE OR IN A PENAL SUM OF $3,000,000, WHICHEVER IS THE LESSER AMOUNT WILL BE REQUIRED WITH EACH BID IF THE BID PRICE IS IN EXCESS OF $2,000. FAILURE TO SUBMIT BID BOND WITH BID WILL CAUSE BID TO BE REJECTED.'

SINCE YOUR BID DEPOSIT WAS NOT 20 PERCENT OF THE BID AS REQUIRED BY THE TERMS OF THE QUOTED PROVISION, IT WAS PROPOSED THAT YOUR BID SHOULD BE REJECTED AS NOT CONFORMING TO THE TERMS OF THE INVITATION, AND YOU WERE SO ADVISED. IT IS YOUR POSITION THAT SINCE THE ERROR WAS MADE IN GOOD FAITH AND YOU OFFERED TO SUPPLY THE REMAINDER IMMEDIATELY AFTER BEING INFORMED OF THE DEFICIENCY, THE FAILURE TO CONFORM SHOULD BE WAIVED AS AN INFORMALITY PURSUANT TO ARTICLE 11 (B) OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22).

BY LETTER OF OCTOBER 26, 1960, THE DEPARTMENT OF THE ARMY HAS REPORTED THAT IT HAS BEEN DETERMINED TO BE IN THE GOVERNMENT'S BEST INTERESTS TO REJECT ALL BIDS AND READVERTISE THE WORK IN THE SPRING FOR THE FOLLOWING REASONS, AMONG OTHERS:

"C. THE ORIGINAL PROJECT CONTEMPLATED THAT AWARD AND NOTICE TO PROCEED UNDER THIS INVITATION WOULD BE SUCH THAT THE CONTRACTOR WOULD BE ABLE TO START WORK ON OR BEFORE 3 OCTOBER 1960. THIS IS NOT NOW POSSIBLE DUE TO A DELAY IN THE INSTALLATION OF COMMUNICATION CABLE BY THE USING AGENCY AND ALSO BECAUSE AWARD AND NOTICE TO PROCEED WOULD BE DELAYED FOR RESOLUTION OF THE PROTEST OF THE APPARENT LOW BIDDER. THESE DELAYS WOULD PREVENT PERFORMANCE OF THE WORK UNDER PROPER CLIMATIC CONDITIONS FOR ROAD SURFACING.

"D. THE CONDITION OF THE EXISTING ROAD SURFACE HAS CHANGED DURING THE PERFORMANCE OF THE CABLE INSTALLATION SO THAT AN EXCESSIVE NUMBER OF POTHOLES AND EDGE RAVELING HAS OCCURRED WHICH WILL REQUIRE A HEAVY OVERRUN IN THE PATCHING ITEM OF THE BID SCHEDULE.'

THE RIGHT TO REJECT ALL BIDS IS SPECIFICALLY RESERVED TO THE GOVERNMENT BY PARAGRAPH 12 OF THE INSTRUCTIONS TO BIDDERS. IN ADDITION, THE STATUTE GOVERNING PROCUREMENTS OF THIS TYPE PROVIDES AT 10 U.S.C. 2305 (C) THAT ALL BIDS MAY BE REJECTED UPON A DETERMINATION BY THE HEAD OF THE AGENCY THAT SUCH ACTION IS IN THE PUBLIC INTEREST. IN OUR VIEW, THE REASONS GIVEN IN THE ADMINISTRATIVE REPORT AMPLY SUPPORT THE DETERMINATION TO WITHDRAW THE PROCUREMENT AT THE PRESENT TIME.

IN THE CIRCUMSTANCES, THE QUESTION RAISED AS TO THE RESPONSIVENESS OF YOUR BID FOR FAILURE TO CONFORM TO THE BID DEPOSIT REQUIREMENT IS NO LONGER MATERIAL AND NEED NOT BE DECIDED. IN THIS CONNECTION, HOWEVER, IT SHOULD BE NOTED THAT WE HAVE TAKEN THE POSITION THAT THE FAILURE OF A BID TO CONFORM TO A BID DEPOSIT REQUIREMENT IMPOSED BY THE TERMS OF THE INVITATION MAY NOT BE WAIVED AS AN INFORMALITY. SEE 38 COMP. GEN. 532.