B-156916, JUN. 30, 1965

B-156916: Jun 30, 1965

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TO THE HONORABLE SECRETARY OF COMMERCE: REFERENCE IS MADE TO LETTER OF JUNE 16. BIDS WERE REQUESTED FOR FURNISHING COPIES OF DRAWINGS OF THE WEEKLY ISSUE OF PATENTS. BIDS WERE OPENED MAY 24. THE BID OF A AND E WAS LOW IN THE EVALUATED AMOUNT OF $144. THE SECOND LOW BID WAS SUBMITTED BY ARVA PRINTERS. THE BID OF A AND E WAS ACCOMPANIED BY A BID GUARANTEE IN THE FORM OF A CERTIFIED CHECK FOR $14. WHICH IS 10 PERCENT OF THE BID PRICE. EXCEPT IN THE FOLLOWING SITUATIONS WHEN THE NONCOMPLIANCE SHALL BE WAIVED UNLESS THERE ARE COMPELLING REASONS CONTRARY: "/B) WHERE THE AMOUNT OF THE BID GUARANTEE SUBMITTED. IS EQUAL TO OR GREATER THAN THE DIFFERENCE BETWEEN THE PRICE STATED IN THE BID AND THE PRICE STATED IN THE NEXT HIGHER ACCEPTABLE BID.'.

B-156916, JUN. 30, 1965

TO THE HONORABLE SECRETARY OF COMMERCE:

REFERENCE IS MADE TO LETTER OF JUNE 16, 1965, FROM MR. BERNARD A. STOL, ASSISTANT GENERAL COUNSEL FOR ADMINISTRATION, IN REPLY TO OUR LETTER OF JUNE 14 REQUESTING A REPORT ON THE PROTEST OF A AND E BLUEPRINTERS, INC. (A AND E), IN CONNECTION WITH ITEMS 16, 17, 18 AND 19 OF INVITATION FOR BIDS NO. C-267-65 ISSUED BY THE PATENT OFFICE.

BIDS WERE REQUESTED FOR FURNISHING COPIES OF DRAWINGS OF THE WEEKLY ISSUE OF PATENTS, AND REPRODUCTIONS OF COPIES OF PREVIOUSLY ISSUED DRAWINGS AND SPECIFICATIONS, AS REQUIRED BY THE PATENT OFFICE DURING THE PERIOD JULY 1, 1965, THROUGH JUNE 30, 1966. BIDS WERE OPENED MAY 24, 1965, AT 10:00 A.M., AND THE BID OF A AND E WAS LOW IN THE EVALUATED AMOUNT OF $144,250, BASED ON ESTIMATED REQUIREMENTS FOR THE FISCAL YEAR 1966. THE SECOND LOW BID WAS SUBMITTED BY ARVA PRINTERS, INC., ARLINGTON, VIRGINIA, IN THE AMOUNT OF $148,500.

THE INVITATION PROVIDES THAT A BID GUARANTEE SHALL BE SUBMITTED IN AN AMOUNT NOT LESS THAN 20 PERCENT OF TOTAL ESTIMATED PAYMENTS TO THE CONTRACTOR, AND THAT 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. THE BID OF A AND E WAS ACCOMPANIED BY A BID GUARANTEE IN THE FORM OF A CERTIFIED CHECK FOR $14,425, WHICH IS 10 PERCENT OF THE BID PRICE. AT APPROXIMATELY 2:30 P.M., ON MAY 24 A AND E FURNISHED ANOTHER CERTIFIED CHECK OF $14,425 AS THE BALANCE OF THE REQUIRED 20 PERCENT GUARANTEE.

THE FEDERAL PROCUREMENT REGULATIONS PROVIDE IN PERTINENT PART AS FOLLOWS:

"WHERE AN INVITATION FOR BIDS REQUIRES THAT A BID BE SUPPORTED BY A BID GUARANTEE AND NONCOMPLIANCE OCCURS, THE BID SHALL BE REJECTED, EXCEPT IN THE FOLLOWING SITUATIONS WHEN THE NONCOMPLIANCE SHALL BE WAIVED UNLESS THERE ARE COMPELLING REASONS CONTRARY:

"/B) WHERE THE AMOUNT OF THE BID GUARANTEE SUBMITTED, THOUGH LESS THAN THE AMOUNT REQUIRED BY THE INVITATION FOR BIDS, IS EQUAL TO OR GREATER THAN THE DIFFERENCE BETWEEN THE PRICE STATED IN THE BID AND THE PRICE STATED IN THE NEXT HIGHER ACCEPTABLE BID.'

SEE 41 C.F.R. 1-10.103-4 (B). THIS IS A STATUTORY REGULATION WHICH HAS THE FORCE AND EFFECT OF LAW. SEE PUBLIC UTILITIES COMMISSION OF CALIFORNIA V. UNITED STATES, 355 U.S. 534, 542; G. L. CHRISTIAN AND ASSOCIATES V. UNITED STATES, 1963, 312 F.2D 418, REHEARING AND REARGUMENT DENIED 320 F.2D 345.

SINCE THE AMOUNT OF THE BID GUARANTEE FURNISHED BY A AND E WITH ITS BID EXCEEDS THE DIFFERENCE BETWEEN SAID BID AND THE NEXT LOW BID, AND IF THE SECOND LOW BID IS OTHERWISE ACCEPTABLE, THE QUOTED REGULATIONS REQUIRE WAIVER OF A AND E'S NONCOMPLIANCE WITH THE REQUIREMENT IN THE INVITATION FOR FURNISHING A 20 PERCENT BID GUARANTEE WITH ITS BID. ACCORDINGLY, UNLESS THERE ARE COMPELLING REASONS TO THE CONTRARY, IT WOULD APPEAR THAT A AND E'S BID SHOULD NOT BE REJECTED AS NONRESPONSIVE.