B-152629, OCT. 11, 1963

B-152629: Oct 11, 1963

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NATIONAL PARK SERVICE NORTHEAST REGION: WE HAVE YOUR LETTER OF OCTOBER 4. THE THREE LOW BIDS RECEIVED ARE AS FOLLOWS: TABLE BIDDER BASE BID ALTERNATE BID F. THIS AMOUNT MEETS THE STATED REQUIREMENT FOR THE BASE BID BUT IS LESS THAN 20 PERCENT OF THE ALTERNATE BID. THERE WERE SIX OTHER BIDDERS ALL OF WHOM SUBMITTED A BOND WHICH WAS AT LEAST 20 PERCENT OF THE HIGHER OF THE BASE AND ALTERNATE BIDS. FPR 1- 10.102-5 PROVIDES THAT REJECTION IS NOT REQUIRED IN THE FOLLOWING CASES: (1) WHERE ONLY A SINGLE BID IS RECEIVED (2) WHERE THE AMOUNT OF THE BID GUARANTEE IS AT LEAST EQUAL TO THE DIFFERENCE BETWEEN THE BID PRICE AND THE PRICE STATED IN THE NEXT HIGHER ACCEPTABLE BID AND (3) WHERE THE BID GUARANTEE AMOUNT IS RENDERED INADEQUATE BY THE CORRECTION OF A MISTAKE IN BID.

B-152629, OCT. 11, 1963

TO MR. GEORGE A. PALMER, CONTRACTING OFFICER, NATIONAL PARK SERVICE NORTHEAST REGION:

WE HAVE YOUR LETTER OF OCTOBER 4, 1963, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE SUFFICIENCY OF THE BID BOND SUBMITTED BY THE LOW BIDDER, F. DI CENZO AND SONS, INC., ON AN INVITATION FOR BIDS ISSUED SEPTEMBER 3, 1963, BY THE NATIONAL PARK SERVICE FOR THE REHABILITATION OF A MONUMENT AT DORCHESTER HEIGHTS NATIONAL HISTORIC SITE, SOUTH BOSTON, MASSACHUSETTS.

THE INVITATION PROVIDES ON ITS FACT,"CERTIFIED CHECK, BID BOND OR OTHER SATISFACTORY GUARANTY IN AMOUNT OF 20 PERCENT OF BID REQUIRED TO BE SUBMITTED WITH BID.' THE BID SCHEDULE CONTAINS TWO ITEMS: ITEM NO. 1, DESCRIBED AS "BASE BID," WHICH CALLED FOR A LUMP SUM PRICE FOR THE CLEANING, REHABILITATION AND REPAIR OF THE MONUMENT; ITEM NO. 2, DESCRIBED AS "ALTERNATE BID," WHICH CALLED FOR A LUMP SUM PRICE FOR THE SAME WORK EXCEPT THAT UNDER IT A METAL STAIRWAY WOULD BE REPLACED RATHER THAN REPAIRED. A STATEMENT INSERTED AT THE BOTTOM OF THE BID SCHEDULE MAKES IT CLEAR THAT THE CONTRACTING OFFICER RESERVES THE RIGHT TO MAKE AWARD ON EITHER THE BASE BID OR THE ALTERNATE BID AT HIS DISCRETION.

THE THREE LOW BIDS RECEIVED ARE AS FOLLOWS:

TABLE

BIDDER BASE BID ALTERNATE BID

F. DI CENZO AND SONS $18,740 $23,040

KOMAC CONSTRUCTION CO. 18,738 39,100

MARCH CONSTRUCTION CO. 24,370 31,870

THE LOW BIDDER ON ITEM NO. 2, THE ALTERNATE BID, F. DI CENZO AND SONS, INC., FURNISHED A PROPERLY EXECUTED BID BOND IN THE AMOUNT OF $3,748. THIS AMOUNT MEETS THE STATED REQUIREMENT FOR THE BASE BID BUT IS LESS THAN 20 PERCENT OF THE ALTERNATE BID, THE ITEM ON WHICH THE CONTRACTING OFFICER PROPOSES TO MAKE AWARD. THERE WERE SIX OTHER BIDDERS ALL OF WHOM SUBMITTED A BOND WHICH WAS AT LEAST 20 PERCENT OF THE HIGHER OF THE BASE AND ALTERNATE BIDS.

WHERE THE LANGUAGE OF AN INVITATION CLEARLY REQUIRES THE SUBMISSION OF BID SECURITY IN NOT LESS THAN A STATED AMOUNT, THE FAILURE OF A BIDDER TO COMPLY PRIOR TO BID OPENING RENDERS THE BID NONRESPONSIVE AND REQUIRES ITS REJECTION EVEN WHERE ANOTHER PART OF THE INVITATION PROVIDES THAT SUCH FAILURE "MAY" BE CAUSE FOR REJECTION, UNLESS THE MATTER COMES WITHIN ONE OF THE EXCEPTIONS PROVIDED BY REGULATION. SEE 39 COMP. GEN. 827. FPR 1- 10.102-5 PROVIDES THAT REJECTION IS NOT REQUIRED IN THE FOLLOWING CASES: (1) WHERE ONLY A SINGLE BID IS RECEIVED (2) WHERE THE AMOUNT OF THE BID GUARANTEE IS AT LEAST EQUAL TO THE DIFFERENCE BETWEEN THE BID PRICE AND THE PRICE STATED IN THE NEXT HIGHER ACCEPTABLE BID AND (3) WHERE THE BID GUARANTEE AMOUNT IS RENDERED INADEQUATE BY THE CORRECTION OF A MISTAKE IN BID. NONE OF THE EXCEPTIONS APPEARS TO BE APPLICABLE IN THIS CASE. ACCORDINGLY, THE LOW BID ON ITEM NO. 2 MUST BE REGARDED AS NONRESPONSIVE AND INELIGIBLE FOR AWARD.

IT IS OUR VIEW, GENERALLY, THAT THE MATERIAL PROVISIONS OF AN INVITATION SHOULD BE AS CLEARLY EXPRESSED AS POSSIBLE TO AVOID ANY POSSIBILITY OF A MISUNDERSTANDING WHICH WOULD REDUCE THE AMOUNT OF COMPETITION. IN THIS CASE IT IS POSSIBLE THAT THE BIDDER IN QUESTION MAY HAVE INTERPRETED THE BID SECURITY PROVISION TO REQUIRE 20 PERCENT OF THE BASE BID ONLY. THIS CASE WE DO NOT THINK SUCH INTERPRETATION IS NEARLY AS PLAUSIBLE AS THAT APPARENTLY INTENDED AND WHICH ALL THE OTHER BIDDERS APPLIED. HOWEVER, FUTURE INVITATIONS SHOULD TO THE EXTENT POSSIBLE BE SO CLEARLY WORDED AS NOT TO PERMIT OF AN INTERPRETATION OTHER THAN THAT INTENDED. CF. 41 COMP. GEN. 758.