B-156940, JUL. 15, 1965

B-156940: Jul 15, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 3. WAS $37. THE RECORD INDICATES THAT THE FAILURE TO FURNISH A BID GUARANTY IN THE REQUIRED AMOUNT WAS THE FAULT OF YOUR INSURANCE AGENTS. YOUR PROTEST TO THIS OFFICE IS. SUCH REQUIREMENT IS CONSIDERED A MATERIAL PART OF THE INVITATION WHICH CANNOT BE WAIVED BY CONTRACTING OFFICERS. THE FACT THAT THE FAILURE OF A LOW BIDDER TO SUBMIT A BID BOND IN THE AMOUNT REQUIRED IN THE INVITATION IS DUE TO AN ERROR BY THE SURETY OR OTHER AGENT OF THE BIDDER DOES NOT WARRANT AN EXCEPTION TO THE ABOVE RULE. 39 COMP. WHICH PERMIT WAIVER OF A DEFICIENCY IN A BID BOND IF THE AMOUNT OF THE BOND FURNISHED IS SUFFICIENT TO COVER THE DIFFERENCE BETWEEN THE LOW AND SECOND LOW BID PRICES.

B-156940, JUL. 15, 1965

TO EXECUTIVE INTERIORS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1965, WITH ENCLOSURES, PROTESTING AGAINST REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS NO. 54-085-5-0671-Y, ISSUED BY THE DISTRICT OF COLUMBIA GOVERNMENT AND COVERING THE FURNISHING AND INSTALLATION OF MODULAR PARTITIONS DURING THE PERIOD FROM JUNE 1, 1965, OR DATE OF AWARD, IF LATER, TO MAY 31, 1966.

THE INVITATION REQUIRED THAT BIDS BE ACCOMPANIED BY A GUARANTY IN A SUM EQUAL TO 10 PERCENT OF THE TOTAL AMOUNT OF THE BID. THE AMOUNT OF YOUR BID, BASED ON ESTIMATED REQUIREMENTS FOR THE CONTRACT PERIOD, WAS $37,228.65, AND YOU SUBMITTED A BID BOND FOR 5 PERCENT OF THE AMOUNT OF YOUR BID, WHICH AMOUNTS TO $1,861.43. THE RECORD INDICATES THAT THE FAILURE TO FURNISH A BID GUARANTY IN THE REQUIRED AMOUNT WAS THE FAULT OF YOUR INSURANCE AGENTS. HOWEVER, UNDER DATE OF MAY 28 THE CONTRACTING OFFICER DENIED YOUR REQUEST THAT THE BOND DEFICIENCY BE WAIVED AS AN IMMATERIAL DEVIATION, QUOTING FROM OUR DECISION PUBLISHED AT 39 COMP. GEN. 827 WHICH HELD THAT A SURETY'S ERROR DOES NOT WARRANT WAIVER OF A FAILURE TO SUBMIT AN ADEQUATE BID BOND. YOUR PROTEST TO THIS OFFICE IS, IN ESSENCE, AN APPEAL FROM SUCH DENIAL BY THE CONTRACTING OFFICER.

UNDER INVITATIONS FOR BIDS WHICH REQUIRE BIDDERS TO SUBMIT BID BONDS PRIOR TO BID OPENING, SUCH REQUIREMENT IS CONSIDERED A MATERIAL PART OF THE INVITATION WHICH CANNOT BE WAIVED BY CONTRACTING OFFICERS, AND NONCOMPLIANCE WITH THE BID BOND PROVISION THEREFORE REQUIRES REJECTION OF THE BID AS NONRESPONSIVE. SEE 38 COMP. GEN. 532. AS INDICATED IN THE CONTRACTING OFFICER'S LETTER OF MAY 28, THE FACT THAT THE FAILURE OF A LOW BIDDER TO SUBMIT A BID BOND IN THE AMOUNT REQUIRED IN THE INVITATION IS DUE TO AN ERROR BY THE SURETY OR OTHER AGENT OF THE BIDDER DOES NOT WARRANT AN EXCEPTION TO THE ABOVE RULE. 39 COMP. GEN. 827.

WITH RESPECT TO YOUR REFERENCE TO THE PROVISIONS OF SECTION 1-10.103 4 (B) OF THE FEDERAL PROCUREMENT REGULATIONS, WHICH PERMIT WAIVER OF A DEFICIENCY IN A BID BOND IF THE AMOUNT OF THE BOND FURNISHED IS SUFFICIENT TO COVER THE DIFFERENCE BETWEEN THE LOW AND SECOND LOW BID PRICES, THE CONTRACTING OFFICER POINTS OUT THAT UNDER SUCH REGULATION YOUR BOND IS STILL DEFICIENT, SINCE THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOW BID IS $3,771.35, WHICH AMOUNT IS CONSIDERABLY GREATER THAN THE AMOUNT OF YOUR BID BOND.

FOR THE REASONS STATED, WE SEE NO VALID BASIS UPON WHICH TO DISAGREE WITH THE CONCLUSION OF THE CONTRACTING OFFICER THAT THE DEFICIENCY IN YOUR BID BOND IS MATERIAL AND MAY NOT BE WAIVED. ACCORDINGLY, YOUR PROTEST AGAINST REJECTION OF YOUR BID MUST BE DENIED.