B-155894, FEB. 24, 1965

B-155894: Feb 24, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 6. IT APPEARS THAT THE BID OPENING TIME WAS 2 P.M. THAT FIVE BIDS WERE RECEIVED AND YOUR BID OF $36. 576 WAS THE LOWEST SUBMITTED. YOUR BID WAS NOT ACCOMPANIED BY THE REQUIRED BID SECURITY BUT ENCLOSED A LETTER DATED DECEMBER 8. WHICH WAS EXECUTED ON DECEMBER 7. WAS NOT ENCLOSED WITH THE BID. THE BID BOND WAS HAND CARRIED BY YOUR REPRESENTATIVE TO THE BID OPENING OFFICE ON DECEMBER 9. DETERMINATION SUBSEQUENTLY WAS MADE BY THE DISTRICT PUBLIC WORKS OFFICER THAT THE LATE ARRIVAL OF THE BID BOND COULD NOT BE WAIVED UNDER THE APPLICABLE RULES AND REGULATIONS AND. YOUR BID WAS CONSIDERED TO BE NONRESPONSIVE. NBY-61683 WAS AWARDED TO THE SECOND LOW RESPONSIVE BIDDER IN THE AMOUNT OF $38.

B-155894, FEB. 24, 1965

TO PREMIER CONTRACTORS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 6, 1965, PROTESTING THE AWARD OF CONTRACT NO. NBY-61683 TO THE I. ALPER COMPANY UNDER BUREAU OF YARDS AND DOCKS SPECIFICATION NO. 61683/64, COVERING REPAIRS TO BUILDING 229, AND CELL BLOCK, EAST AND WEST WINGS OF SOUTH ANNEX OF BUILDING 93, U.S. NAVAL DISCIPLINARY COMMAND, PORTSMOUTH, NEW HAMPSHIRE.

IT APPEARS THAT THE BID OPENING TIME WAS 2 P.M., DECEMBER 8, 1964, THAT FIVE BIDS WERE RECEIVED AND YOUR BID OF $36,576 WAS THE LOWEST SUBMITTED. YOUR BID WAS NOT ACCOMPANIED BY THE REQUIRED BID SECURITY BUT ENCLOSED A LETTER DATED DECEMBER 8, 1964, WHEREIN YOU ADVISED THE DISTRICT PUBLIC WORKS OFFICE, FIRST NAVAL DISTRICT, THAT DUE TO DELAYS BEYOND YOUR CONTROL, THE BID BOND, WHICH WAS EXECUTED ON DECEMBER 7, 1964, WAS NOT ENCLOSED WITH THE BID, BUT WOULD BE FORWARDED TO THAT OFFICE UPON ITS RECEIPT. THE BID BOND WAS HAND CARRIED BY YOUR REPRESENTATIVE TO THE BID OPENING OFFICE ON DECEMBER 9, 1964, THE DAY AFTER THE BID OPENING DAY. DETERMINATION SUBSEQUENTLY WAS MADE BY THE DISTRICT PUBLIC WORKS OFFICER THAT THE LATE ARRIVAL OF THE BID BOND COULD NOT BE WAIVED UNDER THE APPLICABLE RULES AND REGULATIONS AND, THEREFORE, YOUR BID WAS CONSIDERED TO BE NONRESPONSIVE. IN VIEW OF THIS, CONTRACT NO. NBY-61683 WAS AWARDED TO THE SECOND LOW RESPONSIVE BIDDER IN THE AMOUNT OF $38,740. YOUR PROTEST OF THE AWARD IS BASED ON YOUR CONTENTION THAT YOU WERE THE LOWEST RESPONSIBLE BIDDER UNDER SPECIFICATION NO. 61683/64.

SECTION 10-102.5 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT NONCOMPLIANCE WITH THE BID GUARANTEE REQUIREMENT IN INVITATIONS FOR BIDS WILL REQUIRE REJECTION OF THE BID. SECTION 10 102.5 (III) OF THE REGULATION COVERS AN EXCEPTION TO THIS RULE IN THE CASE OF LATE RECEIVED BID GUARANTEES AND PROVIDES THAT THERE SHALL BE APPLIED IN SUCH CASES THE RULES SET FORTH IN SECTION 2-303 DEALING WITH THE CONSIDERATION OF LATE MAILED BIDS. SECTION 2-303.5 EXPRESSLY PROVIDES AS FOLLOWS:

"HAND-CARRIED BIDS. A LATE HAND-CARRIED BID, OR ANY OTHER LATE BID NOT SUBMITTED BY MAIL OR TELEGRAM, SHALL NOT BE CONSIDERED FOR AWARD.'

SINCE A BID BOND IS AN INTEGRAL PART OF THE BID ITSELF AND MUST BE SUBMITTED TIMELY, B-154792, SEPTEMBER 11, 1964, AND SINCE THE FOREGOING SECTION 2-303.5 OF THE ARMED SERVICES PROCUREMENT REGULATION EXPRESSLY EXCLUDES THE CONSIDERATION, UNDER ANY CIRCUMSTANCES, OF THE RECEIPT OF A LATE HAND-CARRIED BID BOND, THE DETERMINATION TO REJECT YOUR BID AS BEING NONRESPONSIVE WAS PROPER. WITH REGARD TO THE FACT THAT YOU STATED IN YOUR BID THAT A BOND HAD BEEN EXECUTED ON DECEMBER 7, 1964, AND IDENTIFIED THE SURETY, THE RECORD IS CLEAR THAT YOU HAD THE BID BOND UNDER YOUR CONTROL AS LATE AS THE DAY AFTER THE TIME FIXED FOR OPENING OF THE BIDS. HENCE, THE COMMUNICATION OF THIS INFORMATION IN YOUR BID WAS NOT TANTAMOUNT TO THE FURNISHING OF THE BOND ITSELF. 39 COMP. GEN. 430.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE AWARD OF CONTRACT NO. NBY-61683 TO THE I. ALPER COMPANY UNDER SPECIFICATION NO. 61683/64, AND, THEREFORE, YOUR PROTEST IS DENIED.