B-161904, JUL. 17, 1967

B-161904: Jul 17, 1967

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HELD THAT ALTHOUGH BID FORM USED BY LOW BIDDER WAS OBSOLETE. DIFFERENCES WERE NOT SUBSTANTIVE AND THEREFORE. ASHBY AND BALL: REFERENCE IS MADE TO YOUR LETTER OF MAY 29. BIDS WERE OPENED APRIL 18. BILTMORE WAS THE LOW BIDDER WITH A BASE BID OF $3. CAMPBELL WAS THE SECOND LOW BIDDER WITH A BASE BID OF $3. A CONTRACT WAS AWARDED TO BILTMORE ON MAY 9. NOTICE TO PROCEED WAS ISSUED ON MAY 16. YOU PROTEST THE AWARD OF THE CONTRACT BECAUSE THE BID OF BILTMORE WAS SUBMITTED WITH A BID BOND ON THE REVISED NOVEMBER 1950 EDITION OF STANDARD FORM 24 RATHER THAN ON THE CURRENT JUNE 1964 EDITION OF STANDARD FORM 24 PRESCRIBED UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) F-100.24. YOU STATE THAT THE REVISED NOVEMBER 1950 EDITION OF THE FORM PROVIDES FOR A PERIOD IN WHICH THE BIDDER CAN WITHDRAW THE BID AFTER THE BIDS ARE OPENED WHEREAS THE CURRENT JUNE 1964 EDITION DOES NOT.

B-161904, JUL. 17, 1967

BIDS - BONDS - FORM DECISION TO PROTESTING SECOND LOW BIDDER FOR CONSTRUCTION WORK FOR ARMY ENGINEERS. HELD THAT ALTHOUGH BID FORM USED BY LOW BIDDER WAS OBSOLETE, DIFFERENCES WERE NOT SUBSTANTIVE AND THEREFORE, MINOR DEVIATION COULD BE WAIVED.

TO ULMER, MURCHISON, KENT, ASHBY AND BALL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1967, PROTESTING, ON BEHALF OF THE ALLEN M. CAMPBELL COMPANY, THE AWARD OF A CONTRACT TO BILTMORE CONSTRUCTION COMPANY, INC; UNDER INVITATION FOR BIDS NO. DACA17-67-B-0014 ISSUED ON FEBRUARY 14, 1967, BY THE JACKSONVILLE DISTRICT, CORPS OF ENGINEERS, FOR CONSTRUCTION OF MAJOR COMMAND HEADQUARTERS AT MACDILL AIR FORCE BASE, FLORIDA.

BIDS WERE OPENED APRIL 18, 1967, AND BILTMORE WAS THE LOW BIDDER WITH A BASE BID OF $3,026,026. CAMPBELL WAS THE SECOND LOW BIDDER WITH A BASE BID OF $3,087,650. A CONTRACT WAS AWARDED TO BILTMORE ON MAY 9, 1967, AND NOTICE TO PROCEED WAS ISSUED ON MAY 16, 1967.

IN YOUR LETTER OF MAY 29, YOU PROTEST THE AWARD OF THE CONTRACT BECAUSE THE BID OF BILTMORE WAS SUBMITTED WITH A BID BOND ON THE REVISED NOVEMBER 1950 EDITION OF STANDARD FORM 24 RATHER THAN ON THE CURRENT JUNE 1964 EDITION OF STANDARD FORM 24 PRESCRIBED UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) F-100.24. YOU STATE THAT THE REVISED NOVEMBER 1950 EDITION OF THE FORM PROVIDES FOR A PERIOD IN WHICH THE BIDDER CAN WITHDRAW THE BID AFTER THE BIDS ARE OPENED WHEREAS THE CURRENT JUNE 1964 EDITION DOES NOT. BECAUSE OF THE ALLEGED DIFFERENCE BETWEEN THE TWO FORMS YOU CONTEND THAT THE BID OF BILTMORE WAS NONRESPONSIVE AND SHOULD HAVE BEEN REJECTED.

STANDARD FORM 24, NOVEMBER 1950 EDITION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"NOW THEREFORE, IF THE PRINCIPAL SHALL NOT WITHDRAW SAID 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 THEREFOR, 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 BONDS WITH GOOD AND SUFFICIENT SURETY OR SURETIES, AS MAY BE REQUIRED, FOR THE FAITHFUL PERFORMANCE AND PROPER FULFILLMENT OF THE RESULTING CONTRACT, AND FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SUCH CONTRACT, OR IN THE EVENT OF THE WITHDRAWAL OF SAID BID WITHIN THE PERIOD SPECIFIED, OR THE FAILURE TO ENTER INTO SUCH CONTRACT AND GIVE SUCH BONDS 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 WORK, SUPPLIES, AND SERVICES, IF THE LATTER AMOUNT BE IN EXCESS OF THE FORMER, THEN THE ABOVE OBLIGATION SHALL BE VOID AND OF NO EFFECT, OTHERWISE TO REMAIN IN FULL FORCE AND VIRTUE;,

STANDARD FORM 24, JUNE 1964 EDITION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"NOW THEREFORE, IF THE PRINCIPAL, UPON ACCEPTANCE BY THE GOVERNMENT OF HIS BID IDENTIFIED ABOVE, WITHIN THE PERIOD SPECIFIED THEREIN FOR ACCEPTANCE (SIXTY (60) DAYS IF NO PERIOD IS SPECIFIED), SHALL EXECUTE SUCH FURTHER CONTRACTUAL DOCUMENTS, IF ANY, AND GIVE SUCH BOND/S) AS MAY BE REQUIRED BY THE TERMS OF THE BID AS ACCEPTED WITHIN THE TIME SPECIFIED (TEN (10) DAYS IF NO PERIOD IS SPECIFIED) AFTER RECEIPT OF THE FORMS BY HIM, OR IN THE EVENT OF FAILURE SO TO EXECUTE SUCH FURTHER CONTRACTUAL DOCUMENTS AND GIVE SUCH BONDS, IF THE PRINCIPAL SHALL PAY THE GOVERNMENT FOR ANY COST OF PROCURING THE WORK WHICH EXCEEDS THE AMOUNT OF HIS BID, THEN THE ABOVE OBLIGATION SHALL BE VOID AND OF NO EFFECT;,

THE FAILURE TO UTILIZE A DESIGNATED BOND FORM IS NOT IN ITSELF A SUFFICIENT BASIS TO REJECT AN-OTHERWISE ACCEPTABLE BID. SEE 39 COMP. GEN. 33, 34. A COMPARISON OF THE 1950 EDITION OF STANDARD FORM 24 WITH THE JUNE 1964 EDITION OF THE FORM SHOWS THAT THE PROVISIONS OF THE TWO FORMS ARE SUBSTANTIALLY THE SAME. BOTH FORMS OBLIGATE THE SURETY TO MAKE PAYMENT IN ACCORDANCE WITH THE BID GUARANTEE PROVISIONS OF THE INVITATION IN THE EVENT THE SUCCESSFUL BIDDER FAILS TO EXECUTE THE REQUIRED CONTRACTUAL DOCUMENTS OR FAILS TO FURNISH THE REQUIRED PERFORMANCE AND PAYMENT BONDS AFTER ACCEPTANCE OF THE BID BY THE GOVERNMENT. WE DO NOT AGREE WITH YOUR CONTENTION THAT THE NOVEMBER 1950 EDITION OF THE FORM PERMITS A BIDDER TO WITHDRAW THE BID AFTER BID OPENING WITHOUT LIABILITY. THE QUOTED PROVISION OF THE FORM SPECIFICALLY PROVIDES THAT IN THE EVENT OF WITHDRAWAL OF THE BID THE PRINCIPAL OR HIS SURETY IS OBLIGATED TO PAY THE GOVERNMENT THE DIFFERENCE BETWEEN THE AMOUNT OF THE BID AND THE AMOUNT FOR WHICH THE GOVERNMENT MAY PROCURE THE WORK ELSEWHERE.

ALTHOUGH THERE ARE SOME DIFFERENCES IN LANGUAGE BETWEEN THE TWO BID BOND FORMS WE THINK SUCH DIFFERENCES ARE MERELY OF FORM AND NOT OF SUBSTANCE. IN OUR DECISION OF SEPTEMBER 13, 1965, B-157030, 45 COMP. GEN. 126, WE CONSIDERED THE PROPRIETY OF THE USE OF AN ANNUAL BID BOND, STANDARD FORM 34 (1950 EDITION), IN LIEU OF THE 1964 EDITION OF STANDARD FORM 24 AS REQUIRED BY THE INVITATION. EXCEPT FOR PROVISIONS DESCRIBING THE BOND AS AN ANNUAL BID BOND, THE LANGUAGE OF STANDARD FORM 34 (1950 EDITION) IS IN ALL MATERIAL RESPECTS SIMILAR TO THE LANGUAGE CONTAINED IN THE REVISED NOVEMBER 1950 EDITION OF STANDARD FORM 24 ON WHICH BILTMORE FURNISHED ITS BID UNDER THE INSTANT INVITATION. IN THE CITED DECISION, THE SECOND LOW BIDDER PROTESTED AWARD TO THE LOW BIDDER ON THE THEORY THAT THE LOW BID WAS NONRESPONSIVE BECAUSE THE BID BOND WAS NOT FURNISHED ON STANDARD FORM 24, JUNE 1964 EDITION, AS PRESCRIBED BY THE INVITATION. THE PROTEST WAS DENIED ON THE BASIS THAT STANDARD FORM 34 (1950 EDITION) AND STANDARD FORM 24 (JUNE 1964 EDITION) DIFFERED ONLY IN FORM AND NOT IN SUBSTANCE AND, THEREFORE, THE DEFECT WAS A MINOR DEVIATION WHICH PROPERLY COULD BE WAIVED BY THE CONTRACTING OFFICER. THE RATIONALE OF THAT DECISION IS EQUALLY APPLICABLE TO THE INSTANT CASE.

ACCORDINGLY, THE BID BOND ORIGINALLY OFFERED BY BILTMORE WAS RESPONSIVE TO THE INVITATION AND WE SEE NO LEGAL BASIS UPON WHICH TO QUESTION THE CONTRACT AWARDED TO BILTMORE.