B-146272, AUG. 18, 1961

B-146272: Aug 18, 1961

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TO GLUCK CONSTRUCTION COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 28. THE RECORD BEFORE US SHOWS THAT THE SUBJECT INVITATION WAS ISSUED ON MAY 25. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND UPON BID OPENING YOUR BID WAS LOW BUT IT WAS NOT ACCOMPANIED BY THE REQUIRED BID BOND. IT IS ADMINISTRATIVELY REPORTED THAT YOUR ORIGINAL BID WAS IN THE AMOUNT OF $235. NO MENTION OF THE BID BOND WAS MADE IN THIS TELEGRAM. IT IS FURTHER REPORTED THAT ON JUNE 22. GLUKLICK OF YOUR COMPANY ADVISED THE CHICAGO REGIONAL OFFICE THAT THE BID BOND WAS NOT SUBMITTED DUE TO AN ERROR IN HIS OFFICE. GLUKLICK STATED HE WAS REMITTING THE BID BOND UNDER SEPARATE COVER. THE BOND WAS RECEIVED BY THE GENERAL SERVICES ADMINISTRATION IN CHICAGO ON JUNE 23.

B-146272, AUG. 18, 1961

TO GLUCK CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1961, PROTESTING AGAINST THE REJECTION OF YOUR BID TO FURNISH MASONRY AND ROOF WORK ON A UNITED STATES POST OFFICE AND COURTHOUSE IN DETROIT, MICHIGAN, UNDER INVITATION FOR BIDS NO. D AND C NO. 669 ISSUED BY THE CHICAGO REGIONAL OFFICE OF THE GENERAL SERVICES ADMINISTRATION.

THE RECORD BEFORE US SHOWS THAT THE SUBJECT INVITATION WAS ISSUED ON MAY 25, 1961, AND CALLED FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING ALL WORK FOR MASONRY AND ROOF WORK AT THE POST OFFICE AND COURTHOUSE IN DETROIT WITH THE BID OPENING DATE SET AT 2 P.M., .S.T., JUNE 22, 1961. THE INVITATION REQUIRED A BID BOND IN THE AMOUNT OF 20 PERCENT OF THE BID ON BIDS IN EXCESS OF $2,000 AND ALSO PROVIDED IN PARAGRAPH 2-14 (A) OF THE SPECIAL CONDITIONS THAT THE FAILURE TO FURNISH A REQUIRED BID GUARANTEE IN THE PROPER AMOUNT, BY THE TIME SET FOR OPENING OF BIDS, MAY BE CAUSE FOR REJECTION OF THE BID.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND UPON BID OPENING YOUR BID WAS LOW BUT IT WAS NOT ACCOMPANIED BY THE REQUIRED BID BOND. IT IS ADMINISTRATIVELY REPORTED THAT YOUR ORIGINAL BID WAS IN THE AMOUNT OF $235,300 BUT ON THE BID OPENING DATE THE CHICAGO REGIONAL OFFICE RECEIVED A TELEGRAM FROM YOUR COMPANY STAMPED AT 1:46 P.M. REDUCING YOUR BID BY THE SUM OF $76,600. NO MENTION OF THE BID BOND WAS MADE IN THIS TELEGRAM. IT IS FURTHER REPORTED THAT ON JUNE 22, AFTER THE BID OPENING, MR. GLUKLICK OF YOUR COMPANY ADVISED THE CHICAGO REGIONAL OFFICE THAT THE BID BOND WAS NOT SUBMITTED DUE TO AN ERROR IN HIS OFFICE. BY WIRE FILED AT 4:28 P.M. AND RECEIVED IN CHICAGO AT 6:36 P.M., MR. GLUKLICK STATED HE WAS REMITTING THE BID BOND UNDER SEPARATE COVER. THE BOND WAS RECEIVED BY THE GENERAL SERVICES ADMINISTRATION IN CHICAGO ON JUNE 23, 1961, AT 8 A.M., AND RECEIVED IN THE BUSINESS SERVICE CENTER AT 8:30 A.M. THE ADMINISTRATIVE REPORT ALSO STATES THAT THE ROYAL OAK, MICHIGAN, POST OFFICE STAMP ON THE ENVELOPE CONTAINING THE BID BOND IS NOT COMPLETELY CLEAR BUT IT DOES NOT SHOW CANCELLATION IN TIME TO HAVE BEEN RECEIVED BEFORE THE BID OPENING. IT IS FURTHER REPORTED THAT MR. GLUKLICK STATED, AFTER THE BID OPENING, THAT THE BOND WAS STILL IN HIS POSSESSION AT THE TIME OF THE BID OPENING. ON THE BASIS OF THESE FACTS THE CONTRACTING OFFICER CONSIDERED YOUR BID NONRESPONSIVE TO THE INVITATION AND AWARDED THE CONTRACT TO WILLIAM H. KELLY COMPANY, THE SECOND LOW BIDDER, ON JUNE 30.

IN YOUR LETTER OF JUNE 28 YOU STATE THAT THE FAILURE TO ENCLOSE THE BID BOND WAS DUE TO INADVERTENCE AND WAS AN UNINTENTIONAL INFORMALITY AND UPON DISCOVERY OF THE DISCREPANCY IT WAS IMMEDIATELY CORRECTED. YOU FURTHER CONTEND THAT THE CONTRACTING AGENCY POSSESSES DISCRETIONARY AUTHORITY TO WAIVE IRREGULARITIES OR INFORMALITIES IN BIDS AND THAT THE REJECTION OF YOUR BID INVOKES A PENALTY THAT IS UNREASONABLY HARSH AND UNFAIR.

WE HELD IN 38 COMP. GEN. 532 THAT UNDER INVITATIONS FOR BIDS WHICH REQUIRE BIDDERS TO SUBMIT BID BONDS PRIOR TO THE BID OPENING, THE BID BOND REQUIREMENT IS A MATERIAL PART OF THE INVITATION WHICH CANNOT BE WAIVED AND NONCOMPLIANCE WITH THE BID BOND PROVISION REQUIRES THE REJECTION OF THE BID AS NONRESPONSIVE. THE BASIS FOR THIS RULE WAS STATED IN THE DECISION AS FOLLOWS:

"* * * PERMITTING WAIVER OF A BID BOND REQUIREMENT STATED IN AN INVITATION FOR BIDS WOULD HAVE A TENDENCY TO COMPROMISE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM BY (1) MAKING IT POSSIBLE FOR A BIDDER TO DECIDE AFTER OPENING WHETHER OR NOT TO TRY TO HAVE HIS BID REJECTED, (2) CAUSING UNDUE DELAY IN EFFECTIVE PROCUREMENTS, AND (3) CREATING, BY THE NECESSARY SUBJECTIVE DETERMINATIONS BY DIFFERENT CONTRACTING OFFICERS, INCONSISTENCIES IN THE TREATMENT OF BIDDERS. * * * THIS RESULT COULD HARDLY BE SAID TO SERVE THE BEST INTERESTS OF THE UNITED STATES. CF. 14 COMP. GEN. 559.'

IT CONSISTENTLY HAS BEEN HELD THAT UNDER THE COMPETITIVE BID PROCEDURE A BID TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF BID OPENING. A BIDDER MAY NOT BE PERMITTED TO CHANGE OR MODIFY ITS BID AFTER THE OPENING AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. COMP. GEN. 819, 36 ID. 535, 30 ID. 179.

ACCORDINGLY, YOU ARE ADVISED THAT THE CONTRACTING OFFICER PROPERLY REJECTED YOUR BID AS NONRESPONSIVE AND WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE IN THIS CASE.