B-180484, APR 17, 1974

B-180484, APR 17, 1974

1. PROTEST BASED ON ILLEGIBILITY OF BID GUARANTEE REQUIREMENT IN BID PACKAGE SHOULD HAVE BEEN FILED PRIOR TO BID OPENING, 4 CFR 20.2, AND FILING OF PROTEST SUBSEQUENT TO AGENCY DECLARING BID NONRESPONSIVE FOR IMPROPER BID BOND IS UNTIMELY. 2. EVEN THOUGH IFB LANGUAGE DID NOT PROVIDE FOR ABSOLUTE REJECTION OF BID UPON FAILURE TO FURNISH PROPER BID BOND, WHERE NO EVIDENCE IS PRESENTED TO DEMONSTRATE THAT REJECTION OF BID WAS IMPROPER, NONRESPONSIVENESS DETERMINATION MANDATED BY FAILURE TO EXECUTE ACCEPTABLE BID BOND. 3. BID BOND WHICH IS SUFFICIENT TO COVER ONLY ONE OUT OF THREE ITEMS IN IFB DOES NOT RENDER BID NONRESPONSIVE AS TO ALL ITEMS. BID MAY BE CONSIDERED WITH RESPECT TO PORTION COVERED BY SUFFICIENT BOND SO LONG AS DIVISION OF AWARD IS NOT IMPRACTICAL OR CONTRARY TO STATED LIMITATION IN BID OR INVITATION.

TO ASSOCIATED REFUSE & COMPACTION SERVICES, INC. SHAYNE BROS. INC.:

INVITATION FOR BIDS (IFB) NO. DADA15-74-B-0047 WAS ISSUED ON DECEMBER 26, 1973, BY THE PURCHASING AND CONTRACTING BRANCH AT WALTER REED ARMY MEDICAL CENTER IN WASHINGTON, DC. THE IFB SOUGHT BIDS ON THREE SEPARATE ITEMS, TRASH REMOVAL AT: 1. THE MAIN SECTION OF WALTER REED; 2. THE FOREST GLEN SECTION IN SILVER SPRING, MARYLAND; AND 3. THE GLEN HAVEN SECTION IN WHEATON, MARYLAND.

SECTION C-13 OF THE IFB STATED THAT:

"EACH BIDDER SHALL SUBMIT WITH HIS BID A BID BOND (STANDARD FORM 24) WITH GOOD AND SUFFICIENT SURETY OR SURETIES ACCEPTABLE TO THE GOVERNMENT, OR OTHER SECURITY AS PROVIDED HEREINAFTER IN THE FORM OF TWENTY PERCENT (20%) OF THE BID PRICE OR $3,000,000 WHICHEVER IS LESS. THE BID BOND PENALTY MAY BE EXPRESSED IN TERMS OF A PERCENTAGE OF THE BID PRICE OR MAY BE EXPRESSED IN DOLLARS AND CENTS.

"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."

THE IFB ALSO PROVIDED, IN SECTION D-1, FOR MULTIPLE AWARDS.

ASSOCIATED REFUSE & COMPACTION SERVICES, INC. (ARCS), WAS THE LOW BIDDER ON EACH OF THE THREE ITEMS IN THE IFB. HOWEVER, BECAUSE THE BOND SUBMITTED WITH ITS BID WAS IN A PENAL SUM NOT TO EXCEED $3,000, ITS BID WAS DECLARED NONRESPONSIVE TO ITEMS 1 AND 2 SINCE THE REQUISITE 20 PERCENT OF BID PRICE, OR $3 MILLION, CRITERION WAS NOT MET (ARCS' BIDS BEING: ITEM 1 - $93,341.80; ITEM 2 - $84,309.20; AND ITEM 3 - $7,310.16).

THE AGENCY DID, HOWEVER, FIND ARCS RESPONSIVE ON ITEM 3 SINCE THE BID BOND IT SUBMITTED EXCEEDED 20 PERCENT OF THE BID PRICE FOR THAT ITEM.

ARCS CONTENDS THAT ITS BID BOND WITH THE ERRONEOUS AMOUNT OF $3,000 WAS SUBMITTED DUE TO THE FACT THAT THE PAGE OF THE SOLICITATION CONTAINING THE BID GUARANTEE REQUIREMENT WAS "NOT LEGIBLY PREPARED" BY THE ARMY.

SHAYNE BROS. INC., ON THE OTHER HAND, CONTENDS THAT ARCS' BID SHOULD HAVE BEEN DECLARED NONRESPONSIVE TO ALL THREE ITEMS AND NOT JUST TO ITEMS 1 AND 2.

WITH REFERENCE TO ARCS' CONTENTION AS TO THE LEGIBILITY OF ITS BID PACKAGE, OUR OFFICE EXAMINED THE ORIGINAL BID SUBMITTED BY ARCS, AND WE CAN CONCLUDE THAT THE $3 MILLION FIGURE WAS LEGIBLE ON ITS COPY OF SECTION C-13 OF THE BID PACKAGE.

IF ARCS CONSIDERED THE FIGURE TO BE ILLEGIBLE, IT SHOULD HAVE SOUGHT CLARIFICATION FROM THE CONTRACTING OFFICER, OR IF UNSUCCESSFUL IN THAT ATTEMPT, FILED A PROTEST WITH OUR OFFICE.

ARCS' PROTEST IS BASED ESSENTIALLY ON THE EXISTENCE OF THIS IMPROPRIETY IN THE SOLICITATION WHICH WAS APPARENT PRIOR TO BID OPENING; HOWEVER, ITS PROTEST WAS NOT FILED UNTIL AFTER ITS BID WAS DECLARED NONRESPONSIVE BY THE ARMY.

SECTION 20.2 OF OUR BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2) STATES IN PERTINENT PART THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. ***"

IN VIEW OF THE ABOVE, WE MUST CONCLUDE THAT ARCS' PROTEST IS UNTIMELY IN PART.

COUNSEL FOR ARCS ALSO STATES THAT EVEN THOUGH ARCS DID NOT (FOR WHATEVER REASON) SUBMIT THE PROPER BID BOND, THE SOLICITATION DID NOT PROVIDE FOR ABSOLUTE REJECTION OF A BID UPON FAILURE TO FURNISH A PROPER BID BOND. HOWEVER, NO EVIDENCE IS PRESENTED TO DEMONSTRATE THAT THE REJECTION OF ARCS' BID ON ITEMS 1 AND 2 WAS IMPROPER. MOREOVER, LANGUAGE SIMILAR TO THAT REFERENCED HAS APPEARED IN ANY NUMBER OF PAST SOLICITATIONS, AND IN EVERY CASE BOTH OUR OFFICE AND THE AGENCIES HAVE CONSISTENTLY HELD THAT FAILURE TO EXECUTE AN ACCEPTABLE BID BOND MANDATES REJECTION OF THE BID AS NONRESPONSIVE. SEE B-177712, MARCH 15, 1973; B-175477, AUGUST 3, 1972; 38 COMP. GEN. 532 (1959).

WE NOTE A FURTHER CONTENTION RAISED BY COUNSEL FOR ARCS THAT CONSIDERATION SHOULD BE GIVEN TO ARCS' SMALL BUSINESS STATUS. HOWEVER, SINCE THE SOLICITATION IN QUESTION WAS NOT A SMALL BUSINESS SET-ASIDE, NOR IN ANY OTHER RESPECT WERE THE BIDS CONTINGENT ON BIDDER SIZE, WE SEE NO MERIT TO THE ARGUMENT.

SHAYNE BROS. ARGUES THAT ARCS' BID IS NONRESPONSIVE IN ALL RESPECTS - NOT MERELY IN REGARD TO ITEMS 1 AND 2 - AND, THEREFORE, THAT ARCS SHOULD NOT BE AWARDED ITEM 3.

IN B-178223, MAY 23, 1973, OUR OFFICE STATED THAT:

"*** WE HAVE RECOGNIZED THAT A BID CONTAINING A DEPOSIT WHICH IS INSUFFICIENT TO COVER THE TOTAL BID, BUT WHICH IS SUFFICIENT TO COVER THOSE ITEMS ON WHICH THE BIDDER IS THE LOW BIDDER, MAY BE ACCEPTED 'SO LONG AS DIVISION OF THE AWARD WOULD NOT BE IMPRACTICABLE OR CONTRARY TO STATED LIMITATIONS IN THE BID OR THE INVITATION.' 39 COMP. GEN. 617, 618 (1960) ***."

IN THE PRESENT CASE A DIVISION OF AWARD WAS CLEARLY CONTEMPLATED BY THE IFB LANGUAGE AND, AS SUCH, NO PROBLEM IN ACCEPTING ARCS' BID EXISTS IN THIS REGARD. SEE, ALSO, B-141265, JANUARY 4, 1960.

IN VIEW OF THESE PRECEDENTS, WE ALSO CONCUR IN THE ARMY'S PRESENT DECISION TO CONSIDER ARCS' BID WITH RESPECT TO THAT PORTION OF THE SOLICITATION COVERED BY SUFFICIENT BOND, SINCE THE LIMITATION OF THE BID BOND AMOUNT DOES NOT IN THIS INSTANCE RENDER THE ENTIRE BID NONRESPONSIVE - JUST A PORTION OF IT. FURTHER, SINCE ARCS IS THE APPARENT LOW BIDDER ON THAT PORTION FOR WHICH IT WAS CONSIDERED (ITEM 3), ON THE RECORD PRESENTED, WE SEE NO OBJECTION TO AWARD OF ITEM 3 TO IT.

ACCORDINGLY, SHAYNE BROS.' PROTEST IS DENIED.