B-157030, SEP. 13, 1965, 45 COMP. GEN. 126

B-157030: Sep 13, 1965

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TO BE SUBMITTED ON FORM 24 TO COVER CONSTRUCTION WORK AS WELL AS SUPPLIES OR SERVICES IS A DEFECT OF FORM THAT MAY BE WAIVED PURSUANT TO PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION. THE AWARD OF THE CONTRACT TO THE LOW BIDDER WAS PROPER. 1965: REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 17. YOUR PROTEST IS STATED AS FOLLOWS: THERE BEING NO DISPUTE BETWEEN THE PARTIES AS TO THE RELEVANT FACTS. THE SOLE QUESTION WHICH IS NOW PRESENTED TO YOUR OFFICE FOR DECISION IS WHETHER AN ANNUAL BID BOND MAY BE USED IN LIEU OF AN INDIVIDUAL BID BOND IN CONNECTION WITH A BID FOR A CONSTRUCTION CONTRACT. IT IS THE POSITION OF THIS OFFICE THAT THE LANGUAGE OF THE VARIOUS BOND FORMS AND THE LANGUAGE OF ASPR CLEARLY INDICATE THAT AN ANNUAL BID BOND MAY NOT BE USED IN CONNECTION WITH CONSTRUCTION CONTRACTS AND THAT WESTERN HAS NOT SUBMITTED THE REQUIRED BID GUARANTY IN SUPPORT OF ITS BID.

B-157030, SEP. 13, 1965, 45 COMP. GEN. 126

BONDS - BIDS - ANNUAL BID BOND THE USE BY THE LOW BIDDER ON A CONSTRUCTION CONTRACT OF AN ANNUAL BID BOND THAT HAD BEEN FILED WITH THE GOVERNMENT ON A STANDARD FORM 34 REFERRING TO SUPPLIES AND SERVICES IN LIEU OF THE INDIVIDUAL GUARANTY BONDS, OR OTHER ENUMERATED SECURITY, PRESCRIBED BY THE INVITATION FOR BIDS, A FORMAL TWO-STEP ADVERTISED PROCUREMENT, TO BE SUBMITTED ON FORM 24 TO COVER CONSTRUCTION WORK AS WELL AS SUPPLIES OR SERVICES IS A DEFECT OF FORM THAT MAY BE WAIVED PURSUANT TO PARAGRAPH 2-405 OF THE ARMED SERVICES PROCUREMENT REGULATION, ABSENT A PROHIBITION IN THE INVITATION AGAINST THE USE OF THE ANNUAL BID BOND AS SECURITY, AND THE ANNUAL BID BOND CONSIDERED LEGALLY ENFORCEABLE AGAINST THE SURETY IN THE EVENT THE LOW BIDDER REFUSES TO EXECUTE A CONTRACT AND FURNISH PERFORMANCE AND PAYMENT BONDS ON THE BASIS THAT PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION INCLUDE CONSTRUCTION WORK WITHIN THE CONCEPT OF SUPPLIES OR SERVICES, THE AWARD OF THE CONTRACT TO THE LOW BIDDER WAS PROPER.

TO SELLERS, CONNER AND CUNEO, SEPTEMBER 13, 1965:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 17, 1965, AND TO YOUR SUPPLEMENTAL LETTERS OF JUNE 22 AND JUNE 24, PROTESTING ON BEHALF OF ITT SYSTEMS CONSTRUCTORS, INC., AGAINST AWARD OF A CONTRACT TO WESTERN ELECTRIC COMPANY, INC., FOR REHABILITATION OF THE TEST COMMUNICATIONS CABLE PLANTS AT POINT MUGU AND SAN NICOLAS ISLAND, PACIFIC MISSILE RANGE, POINT MUGU, CALIFORNIA, UNDER IFB NO. NBY-67372 (CONSTRUCTION CONTRACT), A TWO-STEP FORMAL ADVERTISEMENT ISSUED BY THE DEPARTMENT OF THE NAVY, BUREAU OF YARDS AND DOCKS.

ESSENTIALLY, YOUR PROTEST IS STATED AS FOLLOWS:

THERE BEING NO DISPUTE BETWEEN THE PARTIES AS TO THE RELEVANT FACTS, THE SOLE QUESTION WHICH IS NOW PRESENTED TO YOUR OFFICE FOR DECISION IS WHETHER AN ANNUAL BID BOND MAY BE USED IN LIEU OF AN INDIVIDUAL BID BOND IN CONNECTION WITH A BID FOR A CONSTRUCTION CONTRACT. IT IS THE POSITION OF THIS OFFICE THAT THE LANGUAGE OF THE VARIOUS BOND FORMS AND THE LANGUAGE OF ASPR CLEARLY INDICATE THAT AN ANNUAL BID BOND MAY NOT BE USED IN CONNECTION WITH CONSTRUCTION CONTRACTS AND THAT WESTERN HAS NOT SUBMITTED THE REQUIRED BID GUARANTY IN SUPPORT OF ITS BID. ACCORDINGLY, WESTERN'S BID WAS NONRESPONSIVE AND MUST BE REJECTED.

BIDS WERE OPENED AS SCHEDULED ON JUNE 15, 1965, UNDER STEP TWO OF THE INVITATION AND THE FOLLOWING PRICES WERE OFFERED:

TABLE WESTERN ELECTRIC COMPANY, INC. $1,100.800 ITT SYSTEMS CONSTRUCTORS, INC. 2,450.000 MEVA CORP. AND MARKO E. BOLICH ASSOCIATES

3,999.246 GOVERNMENT ESTIMATE 1,508.233

AWARD WAS MADE TO WESTERN ELECTRIC AS THE LOW BIDDER ON JUNE 24, AFTER RECEIPT OF A PROTEST FROM ITT.

IN THE PROVISION OF ITS BID ON STANDARD FORM 21, JUNE 1964 EDITION, PROVIDING FOR THE ENCLOSING AND THE IDENTIFICATION OF A BID GUARANTEE, WESTERN ELECTRIC REFERENCED ITS LETTER DATED JUNE 14, 1965, ATTACHED THERETO, WHICH MADE THE FOLLOWING PERTINENT STATEMENT:

OUR BID GUARANTEED BOND IS ON FILE WITH THE CONTRACT INSURANCE BRANCH, MAT-213, AS APPROVED FOR FISCAL YEAR 1965 BY THE DEPARTMENT OF NAVY, OFFICE OF NAVAL MATERIAL, WASHINGTON, D.C., 20360. THE BID BOND NUMBER IS 431D0716 AND IS SUFFICIENT TO COVER 20 PERCENT OF OUR PRICE AS QUOTED. OUR FISCAL YEAR 1966 BOND NUMBER IS 431BD2157.

THE BUREAU OF YARDS AND DOCKS LETTER TRANSMITTING THE IFB, BID FORMS AND OTHER DOCUMENTS TO THE BIDDERS PROVIDED THAT A BID GUARANTEE IN THE AMOUNT OF 20 PERCENT SHOULD ACCOMPANY THE BIDDER'S PROPOSAL, AND THE IFB CONTAINED THE FOLLOWING CLAUSE CONCERNING SUCH GUARANTEES:

3. BID GUARANTY. TO ASSURE THE EXECUTION OF THE CONTRACT AND THE PERFORMANCE AND PAYMENT BONDS, EACH BIDDER SHALL SUBMIT WITH ITS BID A GUARANTY BOND (U.S. STANDARD FORM 24) EXECUTED BY A SURETY COMPANY HOLDING A CERTIFICATE OF AUTHORITY FROM THE SECRETARY OF THE TREASURY AS AN ACCEPTABLE SURETY OR OTHER SECURITY AS PROVIDED IN PARAGRAPH 4 OF INSTRUCTIONS TO BIDDERS, STANDARD FORM 22. THE BID GUARANTY BOND SHALL BE ACCOMPANIED BY A VERIFAX OR OTHER FACSIMILE COPY OF THE AGENT'S AUTHORITY TO SIGN BONDS FOR THE SURETY COMPANY. SECURITY SHALL BE IN THE SUM OF 20 PERCENT OF THE LARGEST AMOUNT FOR WHICH AWARD CAN BE MADE UNDER THE BID SUBMITTED, BUT IN NO CASE TO EXCEED $3,000,000. IF THE BIDDER ELECTS TO FURNISH A CERTIFIED OR CASHIER'S CHECK IN LIEU OF BID BOND, THE CHECK SHOULD BE MADE PAYABLE TO THE OFFICER IN CHARGE OF CONSTRUCTION AT THE OFFICE WHERE THE BIDS ARE SUBMITTED.

THE STANDARD FORM 24 (JUNE 1964 ED.) BID BOND PROVIDES IN ITS INSTRUCTIONS THAT SUCH FORM IS AUTHORIZED FOR USE WHENEVER A BID GUARANTY IS REQUIRED IN CONNECTION WITH CONSTRUCTION WORK OR THE FURNISHING OF SUPPLIES OR SERVICES.

THE "OTHER SECURITY" AUTHORIZED AS A BID GUARANTY UNDER CLAUSE 3 OF THE IFB IS DESCRIBED IN PARAGRAPH 4 OF STANDARD FORM 22 (JUNE 1964 ED.) FOLLOWS:

A BID GUARANTEE SHALL BE IN THE FORM OF A FIRM COMMITMENT, SUCH AS A BID BOND, POSTAL MONEY ORDER, CERTIFIED CHECK, CASHIER'S CHECK, IRREVOCABLE LETTER OF CREDIT OR, IN ACCORDANCE WITH TREASURY DEPARTMENT REGULATIONS, CERTAIN BONDS OR NOTES OF THE UNITED STATES.

THAT PARAGRAPH ALSO PROVIDES THAT WHERE A BID GUARANTEE IS REQUIRED BY THE INVITATION FOR BIDS, FAILURE TO FURNISH A BID GUARANTEE IN THE PROPER FORM AND AMOUNT, BY THE TIME SET FOR OPENING OF BIDS MAY BE CAUSE FOR REJECTION OF THE BID. PARAGRAPH 1-201.10 OF THE ARMED SERVICES PROCUREMENT REGULATION DEFINES THE WORD "MAY" AS "PERMISSIVE.' THUS, IT DOES NOT APPEAR THAT THE ABOVE OR OTHER PROVISIONS OF THE INVITATION DOCUMENTS SPECIFICALLY REQUIRED REJECTION OF A BID EVEN IF THE BIDDER HAD NOT FURNISHED A BID GUARANTEE OF ANY KIND AT THE TIME OF BID OPENING.

THE ANNUAL BID BOND SPECIFIED BY WESTERN ELECTRIC AS GUARANTEE FOR ITS BID UNDER THE IFB (WHICH WAS ON FILE AS STATED), COVERED THE FISCAL YEAR ENDING JUNE 30, 1965, AND WAS ON STANDARD FORM 34 (1950 ED.), WHICH PROVIDED IN PERTINENT PART:

THE CONDITION OF THIS OBLIGATION IS SUCH, THAT WHEREAS THE PRINCIPAL CONTEMPLATES SUBMITTING BIDS FROM TIME TO TIME DURING THE FISCAL YEAR ABOVE SHOWN TO THE DEPARTMENT OR AGENCY NAMED ABOVE FOR FURNISHING SUPPLIES OR SERVICES TO THE GOVERNMENT AND DESIRES THAT ALL SUCH BIDS SUBMITTED FOR OPENING DURING SAID FISCAL YEAR BE COVERED BY A SINGLE BOND INSTEAD OF BY A SEPARATE BID BOND FOR EACH BID:

NOW THEREFORE, IF THE PRINCIPAL SHALL NOT WITHDRAW ANY SUCH BID WITHIN THE PERIOD SPECIFIED THEREIN AFTER THE OPENING OF THE SAME, OR, IF NO PERIOD BE SPECIFIED, WITHIN SIXTY (60) DAYS AFTER SAID OPENING, AND SHALL WITHIN THE PERIOD SPECIFIED THEREFORE, OR, IF NO PERIOD BE SPECIFIED, WITHIN TEN (10) DAYS AFTER THE PRESCRIBED FORMS ARE PRESENTED TO HIM FOR SIGNATURE, EXECUTE SUCH FURTHER CONTRACTUAL DOCUMENTS, IF ANY, AS MAY BE REQUIRED BY THE TERMS OF THE BID AS ACCEPTED, AND GIVE BOND WITH GOOD AND SUFFICIENT SURETY OR SURETIES, AS MAY BE REQUIRED, FOR THE FAITHFUL PERFORMANCE AND PROPER FULFILLMENT OF THE RESULTING CONTRACT, OR IN THE EVENT OF THE WITHDRAWAL OF ANY BID WITHIN THE PERIOD SPECIFIED, OR THE FAILURE TO ENTER INTO SUCH CONTRACT AND GIVE SUCH BOND WITHIN THE TIME SPECIFIED, IF THE PRINCIPAL SHALL PAY THE GOVERNMENT THE DIFFERENCE BETWEEN THE AMOUNT SPECIFIED IN SAID BID AND THE AMOUNT FOR WHICH THE GOVERNMENT MAY PROCURE THE REQUIRED SUPPLIES AND SERVICES, IF THE LATTER AMOUNT BE IN EXCESS OF THE FORMER, THEN THE ABOVE OBLIGATIONS SHALL BE VOID AND OF NO EFFECT, OTHERWISE TO REMAIN IN FULL FORCE AND VIRTUE.

THE INSTRUCTIONS ON THE BACK OF THE BOND FORM INCLUDED THE STATEMENT "THIS FORM MAY BE USED IN CONNECTION WITH THE PROCUREMENT OF SUPPLIES OR SERVICES IN LIEU OF STANDARD FORM 24 (BID BOND)," BUT SUCH INSTRUCTIONS DID NOT CONTAIN ANY SPECIFIC REFERENCE TO ITS USE OR NONUSE IN CONNECTION WITH CONSTRUCTION CONTRACTS.

YOU POINT OUT IN YOUR LETTER OF JUNE 24 THAT THE DEFINITION SET FORTH UNDER ASPR 10-101.2 REFERS TO AN ANNUAL BID BOND AS BID SECURITY "ON OTHER THAN CONSTRUCTION CONTRACTS" AND THAT ASPR 10-102.2 SPECIFICALLY STATE THAT "ONLY INDIVIDUAL BID BONDS (STANDARD FORM 24) WILL BE USED FOR CONSTRUCTION CONTRACTS.' PARAGRAPH 10-102.5 ALSO PROVIDES THAT WHERE A SOLICITATION REQUIRES THAT BIDS BE SUPPORTED BY A BID GUARANTEE, NONCOMPLIANCE WITH SUCH REQUIREMENT WILL REQUIRE REJECTION OF THE BID (WITH CERTAIN EXCEPTIONS NOT HERE FOR APPLICATION). THUS, SINCE PARAGRAPH 3 OF THE INVITATION SPECIFIES THAT EACH BIDDER SHALL (DEFINED IN ASPR 1- 201.16 AS "IMPERATIVE") SUBMIT WITH ITS BID A STANDARD FORM OR OTHER SECURITY, AND SINCE AN ANNUAL BID BOND (STANDARD FORM 34) IS NOT AUTHORIZED BY THE ABOVE REGULATIONS TO BE ACCEPTED AS SECURITY FOR BIDS ON CONSTRUCTION CONTRACTS, YOU CONTEND THAT THE ACCEPTANCE OF WESTERN ELECTRIC'S BID WAS IN CLEAR VIOLATION OF THE CITED REGULATORY PROVISIONS.

THERE WERE ALSO FOR APPLICATION AT BID OPENING THE PROVISIONS OF THE BUREAU OF YARDS AND DOCKS TECHNICAL PUBLICATION NAVDOCKS TP-AD-4 WHICH DEFINES THE AUTHORITY AND RESPONSIBILITIES OF THE BUREAU OF YARDS AND DOCKS, ITS FIELD ACTIVITIES, AND OTHERS CONCERNED WITH THE ADMINISTRATION OF CONTRACTS. PARAGRAPH F2.04 (1) OF THE PUBLICATION PROVIDES:

1. FAILURE TO SUBMIT BID BOND. IF A BIDDER FAILS TO FURNISH BID SECURITY IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION, THE BID SHALL BE CONSIDERED NONRESPONSIVE AND IT SHALL BE REJECTED UNLESS FAILURE OF THE BID BOND TO ARRIVE ON TIME WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE. DETERMINATION AS TO THE ACCEPTABILITY OF BONDS RECEIVED IN THE MAIL AFTER THE BID OPENING BUT PRIOR TO AWARD SHALL BE MADE UNDER THE PROCEDURES ESTABLISHED FOR THE HANDLING OF LATE BIDS IN F2.04 (5) HEREOF.

THE RECORD SHOWS THAT AFTER LEARNING ON JUNE 16, 1965, THAT THE PROPRIETY OF THE USE OF ITS ANNUAL BID BOND WAS BEING QUESTIONED, WESTERN ELECTRIC FURNISHED AN EXECUTED STANDARD FORM 24 BY LETTER DATED JUNE 17, 1965. THIS COULD NOT, OF COURSE, BE CONSIDERED AS COMPLIANCE WITH THE REQUIREMENTS OF THE INVITATION AND THE REGULATIONS. THE BUREAU OF YARDS AND DOCKS CONCLUDED, HOWEVER, THAT THE ANNUAL BOND WAS BY ITS TERMS LEGALLY ENFORCEABLE AGAINST THE SURETY IN THE EVENT OF FAILURE TO EXECUTE A CONTRACT AWARDED ON A BID FOR A CONSTRUCTION CONTRACT, AND THAT THE DEFECT WAS THEREFORE ONE MERELY OF FORM. IT THEREFORE AWARDED THE CONTRACT IN ACCORDANCE WITH THE RULE REQUIRING A CONTRACTING OFFICER TO WAIVE OR PERMIT CORRECTION OF MINOR INFORMALITIES OR IRREGULARITIES AS DEFINED IN ASPR 2-405.

FOR MANY YEARS THIS OFFICE VIEWED THE REQUIREMENT FOR A BID BOND IN ADVERTISED PROCUREMENTS AS A MINOR INFORMALITY WHICH MIGHT BE ADMINISTRATIVELY WAIVED IF DETERMINED TO BE IN THE INTEREST OF THE GOVERNMENT TO DO SO. HOWEVER, IN 1959 A NEW RULE WAS ESTABLISHED BY OUR DECISION 38 COMP. GEN. 532 THAT, WHERE THE TERMS OF AN INVITATION REQUIRE THE FURNISHING OF A BID BOND PRIOR TO BID OPENING, THE REQUIREMENT IS TO BE REGARDED AS A MATERIAL PART OF THE INVITATION AND NONCOMPLIANCE THEREWITH SHOULD NOT BE WAIVED. THIS RULE HAS BEEN ESTABLISHED BY REGULATIONS SET FORTH IN ASPR 10-102.5 AND IN FEDERAL PROCUREMENT REGULATION 1-10.103-4, AND THE RULE HAS BEEN CONSISTENTLY FOLLOWED IN OUR SUBSEQUENT DECISIONS.

HOWEVER, IN THE INSTANT CASE YOUR CONTENTION THAT WESTERN ELECTRIC DID NOT COMPLY WITH THE BID BOND REQUIREMENT DEPENDS UPON THE PROPOSITION THAT THE REFERENCE IN ITS BID TO ITS ANNUAL BID BOND WAS WHOLLY INEFFECTIVE AND TO BE GIVEN NO GREATER EFFECT THAN IF IT HAD NEITHER FURNISHED NOR REFERENCED ANY SECURITY FOR COMPLIANCE WITH ITS BID IN EVENT OF AWARD.

OUR CITED DECISION AND THE PROVISIONS OF ASPR 10-102.5 IMPLEMENTING THE POLICY STATED THEREIN WERE BASED UPON THE ASSUMPTION THAT, IF THE PROCURING AGENCY DETERMINED THAT THE INTEREST OF THE GOVERNMENT REQUIRED SECURITY TO GUARANTEE THE COMPLIANCE OF BIDDERS WITH THE TERMS OF THEIR BIDS OR THE PAYMENT OF DAMAGES FOR BREACH THEREOF, SUCH REQUIREMENT SHOULD BE CONSIDERED A MATERIAL CONDITION, NONCOMPLIANCE WITH WHICH SHOULD NOT BE WAIVED AS A MINOR DEVIATION OR INFORMALITY.

HOWEVER, IN THE SUBJECT PROCUREMENT, IF THE WESTERN ELECTRIC ANNUAL BID BOND CONSTITUTED A SECURITY WHICH COULD BE RELIED UPON AND ENFORCED AGAINST THE SURETY IN THE EVENT OF THAT COMPANY'S REFUSAL TO EXECUTE A CONTRACT AND FURNISH PERFORMANCE AND PAYMENT BONDS, IT WOULD NOT APPEAR THAT THE AWARD TO WESTERN ELECTRIC WAS A VIOLATION OF ASPR 10 102.5, BUT RATHER THAT IT WAS NO MORE THAN A VIOLATION OF THE INJUNCTION IN ASPR 10- 102.2 THAT ONLY AN INDIVIDUAL BOND IS TO BE ACCEPTED AS SECURITY FOR A CONSTRUCTION CONTRACT BID.

LOOKING AT THE LANGUAGE OF THE ANNUAL BOND QUOTED ABOVE, THE ONLY BASIS ON WHICH IT CAN BE ARGUED THAT IT WOULD NOT BE ENFORCEABLE AGAINST WESTERN ELECTRIC IN THE EVENT OF DEFAULT ON THE SUBJECT BID IS THAT THE WORDS "BIDS * * * FOR FURNISHING SUPPLIES OR SERVICES" WOULD NOT INCLUDE BIDS FOR CONSTRUCTION. WHILE IT IS TRUE THAT IN CERTAIN PORTIONS OF THE ARMED SERVICES PROCUREMENT REGULATION CONSTRUCTION CONTRACTS ARE MADE THE SUBJECT OF SEPARATE OR SPECIAL TREATMENT, THE BASIC PROVISIONS APPEAR CLEARLY TO INCLUDE CONSTRUCTION WITHIN THE CONCEPT OF SUPPLIES OR SERVICES. SEE FOR EXAMPLE ASPR 1-102 WHICH PRESCRIBES THE OVERALL APPLICABILITY OF THE REGULATION ITSELF "TO ALL PURCHASES AND CONTRACTS MADE BY THE DEPARTMENT OF DEFENSE * * * FOR THE PROCUREMENT OF SUPPLIES OR SERVICES * * *" WITHOUT SPECIFIC REFERENCE TO CONSTRUCTION; ASPR 1-104 SETTING FORTH THE CONTENT OF THE REGULATION, AGAIN WITHOUT REFERENCE TO CONSTRUCTION; ASPR 1-201.13, DEFINING "PROCUREMENT" WITHOUT MENTIONING CONSTRUCTION; AND ASPR 1 201.19, DEFINING ,SUPPLIES" AS MEANING "ALL PROPERTY EXCEPT LAND OR INTERESTS IN LAND * * *. IT INCLUDES PUBLIC WORKS, BUILDINGS, AND FACILITIES * * * AND THE ALTERATION AND INSTALLATION OF ANY OF THE FOREGOING. "SUPPLIES" AS USED IN THIS REGULATION IS SYNONYMOUS WITH "PROPERTY" AS DESCRIBED IN 10 U.S.C. 2302 (B).' THE FACT THAT SECTION XVIII OF THE ASPR SETS FORTH VARIOUS CONTRACTING PROCEDURES "PECULIAR TO CONSTRUCTION CONTRACTS" DOES NOT, WE BELIEVE, JUSTIFY THE CONCLUSION, IN THE FACE OF THE ABOVE-CITED PROVISIONS, THAT THE WORDS "SUPPLIES OR SERVICES" IN THE CONDITION OF THE STANDARD FORM 34 ANNUAL BID BOND MAY NOT BE READ AS INCLUDING CONSTRUCTION. IN THIS VIEW OF THE MATTER, WE AGREE WITH THE BUREAU THAT THE DIFFERENCE BETWEEN STANDARD FORM 24 AND THE NOVEMBER 1950 EDITION OF STANDARD FORM 34 MAY BE CONSIDERED A DIFFERENCE MERELY OF FORM, AND IN THE ABSENCE OF SPECIFIC PROVISIONS IN THE INVITATION THAT THE ANNUAL BID BOND MAY NOT BE OFFERED AS SECURITY ON THE SUBJECT BID WE ARE OF THE OPINION THAT THE THE DEVIATION IN WESTERN ELECTRIC'S BID WAS ONE WHICH COULD PROPERLY BE WAIVED.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED, AND YOUR FURTHER CONTENTION THAT YOUR CLIENT WAS ENTITLED TO AWARD OF THE CONTRACT NEED NOT BE CONSIDERED.