B-149734, OCT. 4, 1962
Highlights
THE BID WAS ACCOMPANIED BY CERTIFIED CHECKS TOTALING $11. WOULD HAVE RESULTED IN A TOTAL BID GUARANTEE OF $16. THE ACCEPTABLE BID GUARANTEE SUBMITTED BY THE FIRM IS CLEARLY WELL IN EXCESS OF 20 PERCENT OF THE TOTAL AWARD TO IT. WE HELD THAT THE BID DEPOSIT REQUIREMENT MUST HAVE BEEN SET BY THE ADMINISTRATIVE AGENCY IN TERMS OF PROTECTING THE INTERESTS OF THE GOVERNMENT EVEN IF THE BIDDER SHOULD BE AWARDED EVERY ITEM UPON WHICH HE BID. THAT IF THE BID IS SUPPORTED BY A BID GUARANTEE. WE STATED: "A BID DEPOSIT WHICH WAS NOT IN AN AMOUNT SUFFICIENT TO COVER ALL THE ITEMS OF SURPLUS GOVERNMENT PROPERTY BID UPON AS REQUIRED BY THE INVITATION. WHICH WAS SUFFICIENT TO COVER THOSE ITEMS AND QUANTITIES ON WHICH THE BIDDER WAS THE ELIGIBLE HIGH BIDDER.
B-149734, OCT. 4, 1962
TO ALASKA JUNK COMPANY OF SEATTLE, INC:
WE REFER AGAIN TO YOUR TELEGRAM OF AUGUST 17 AND YOUR LETTER OF AUGUST 28, 1962, PROTESTING THE ACCEPTANCE OF A BID FROM THE PACIFIC IRON AND METAL COMPANY UNDER INVITATION FOR BIDS NO. 42-S-63-7, ISSUED JULY 26, 1962, BY THE DEFENSE SURPLUS SALES OFFICE AT SEATTLE, FOR THE SALE OF DESIGNATED SURPLUS GOVERNMENT PROPERTY.
THE INVITATION REQUIRED A BID DEPOSIT OF 20 PERCENT OF THE TOTAL AMOUNT OF THE BID. ARTICLE A" OF THE SPECIAL CONDITIONS PROVIDED THAT THE BID DEPOSIT BONDS WOULD NOT BE ACCEPTABLE. ARTICLE "C" WARNED THAT A BID NOT SUPPORTED BY AN ACCEPTABLE DEPOSIT MIGHT BE REJECTED AS NONRESPONSIVE. ADDITION, THE INSTRUCTIONS TO BIDDERS REQUIRED THAT THE BID DEPOSIT BE IN THE FORM OF CASH; MONEY ORDER; CASHIER-S, CERTIFIED, OR TRAVELER'S CHECK; OR A COMBINATION THEREOF.
THE PACIFIC IRON AND METAL COMPANY SUBMITTED A BID ON 12 ITEMS IN THE TOTAL AMOUNT OF $82,499.90. THE BID WAS ACCOMPANIED BY CERTIFIED CHECKS TOTALING $11,600. IN ADDITION, THE BID REFERRED TO AN ANNUAL BID DEPOSIT BOND OF $5,000 WHICH, IF ACCEPTABLE, WOULD HAVE RESULTED IN A TOTAL BID GUARANTEE OF $16,500, THUS MEETING THE 20 PERCENT REQUIREMENT. HOWEVER, THE TERMS OF THE INVITATION CLEARLY EXCLUDE CONSIDERATION OF BONDS AND, THEREFORE, THE BID MUST BE REGARDED AS HAVING BEEN ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $11,600, WHICH WOULD FAIL BY APPROXIMATELY $5,000 OF MEETING THE 20 PERCENT REQUIREMENT. PACIFIC SUBMITTED THE HIGH BIDS AND RECEIVED AWARDS ON ITEMS 2, 12 AND 13 AT A TOTAL PRICE OF $23,684. THE ACCEPTABLE BID GUARANTEE SUBMITTED BY THE FIRM IS CLEARLY WELL IN EXCESS OF 20 PERCENT OF THE TOTAL AWARD TO IT.
IN A CASE DECIDED ON MARCH 3, 1960, INVOLVING A SIMILAR FACTUAL SITUATION, WE HELD THAT THE BID DEPOSIT REQUIREMENT MUST HAVE BEEN SET BY THE ADMINISTRATIVE AGENCY IN TERMS OF PROTECTING THE INTERESTS OF THE GOVERNMENT EVEN IF THE BIDDER SHOULD BE AWARDED EVERY ITEM UPON WHICH HE BID. WE CONCLUDED, THEREFORE, THAT IF THE BID IS SUPPORTED BY A BID GUARANTEE, IN THE FORM REQUIRED BY THE TERMS OF THE INVITATION, REPRESENTING A PROPORTION OF THE AMOUNT FOR WHICH THE BIDDER WOULD BE ELIGIBLE FOR AWARD OF NO LESS THAN THE PROPORTION OF BID DEPOSIT REQUIRED ON THE TOTAL BID, SUCH BID MAY BE REGARDED AS CONFORMING TO THE BID DEPOSIT REQUIREMENT OF THE INVITATION. IN THE HEADNOTE TO THE CITED DECISION APPEARING AT 39 COMP. GEN. 617, WE STATED:
"A BID DEPOSIT WHICH WAS NOT IN AN AMOUNT SUFFICIENT TO COVER ALL THE ITEMS OF SURPLUS GOVERNMENT PROPERTY BID UPON AS REQUIRED BY THE INVITATION, BUT WHICH WAS SUFFICIENT TO COVER THOSE ITEMS AND QUANTITIES ON WHICH THE BIDDER WAS THE ELIGIBLE HIGH BIDDER, DOES NOT REQUIRE REJECTION OF THE BID FOR INSUFFICIENT BID SECURITY WHEN THE INVITATION DOES NOT CONTAIN ANY LIMITATION ON THE MINIMUM QUANTITIES WHICH MAY BE PURCHASED AND WHEN AWARDS TO SEVERAL BIDDERS ARE CONTEMPLATED.'
IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THERE HAS BEEN PRESENTED NO BASIS UPON WHICH WE MAY CONCLUDE THAT THE AWARD TO PACIFIC SHOULD BE DISTURBED.