B-180553, MAY 31, 1974

B-180553: May 31, 1974

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BIDDER'S FAILURE TO SUBMIT REQUIRED BID GUARANTEE IN FORM OF CERTIFIED CHECK AS CALLED FOR IN SOLICITATION WAS PROPERLY WAIVED BY DISTRICT OF COLUMBIA AS MINOR INFORMALITY BECAUSE CASHIER'S CHECK SUBMITTED PROVIDED DISTRICT WITH FIRM COMMITMENT AND FPR 1-10.102-2. CONTENTION THAT IFB REQUIRED AWARD TO ONE BIDDER OF BOTH ITEMS LISTED IN BID SCHEDULE BECAUSE OF REFERENCE IN IFB TO CONTRACTOR IN SINGULAR AND BECAUSE A GUARANTEED MINIMUM QUANTITY WAS LISTED FOR ONLY ONE OF THE ITEMS. IS WITHOUT MERIT SINCE IFB EXPLICITLY RESERVED RIGHT TO MAKE AWARD OF ALL OR ANY ITEMS. AWARD MADE TO BIDDER WHO BID ONLY ON SINGULAR ITEM IS PERMITTED UNDER IFB. THE TERM OF THE CONTRACT WAS FOR THE PERIOD JANUARY 4.

B-180553, MAY 31, 1974

1. BIDDER'S FAILURE TO SUBMIT REQUIRED BID GUARANTEE IN FORM OF CERTIFIED CHECK AS CALLED FOR IN SOLICITATION WAS PROPERLY WAIVED BY DISTRICT OF COLUMBIA AS MINOR INFORMALITY BECAUSE CASHIER'S CHECK SUBMITTED PROVIDED DISTRICT WITH FIRM COMMITMENT AND FPR 1-10.102-2, WHICH PROVIDES GUIDANCE TO DISTRICT, INCLUDES CASHIER'S CHECK AS PROPER BID GUARANTEE. 2. BID SIGNED BUT LACKING CORPORATE SEAL AND SECRETARIAL ATTESTATION NEED NOT BE REJECTED AS NONRESPONSIVE BECAUSE IFB SPECIFICALLY PROVIDED THAT BID BY CORPORATION BE SIGNED BY AUTHORIZED INDIVIDUAL AND PROOF OF AUTHORITY BE PRESENTED ONLY IF REQUESTED. SEE COMP. GEN. CASES CITED. 3. CONTENTION THAT IFB REQUIRED AWARD TO ONE BIDDER OF BOTH ITEMS LISTED IN BID SCHEDULE BECAUSE OF REFERENCE IN IFB TO CONTRACTOR IN SINGULAR AND BECAUSE A GUARANTEED MINIMUM QUANTITY WAS LISTED FOR ONLY ONE OF THE ITEMS, THUS ALLEGEDLY MAKING IT IMPRACTICAL TO BID THE ITEMS SEPARATELY, IS WITHOUT MERIT SINCE IFB EXPLICITLY RESERVED RIGHT TO MAKE AWARD OF ALL OR ANY ITEMS; THEREFORE, AWARD MADE TO BIDDER WHO BID ONLY ON SINGULAR ITEM IS PERMITTED UNDER IFB.

TO EXCAVATION CONSTRUCTION, INCORPORATED:

THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, DEPARTMENT OF GENERAL SERVICES (DISTRICT), ISSUED INVITATION FOR BIDS (IFB) NO. 0314-AA-38-0 4- A1, DATED DECEMBER 12, 1973, FOR THE TRANSPORTATION AND DISPOSAL OF WASTE RESIDUE GENERATED AT THE DISTRICT'S BLUE PLAINS TREATMENT PLANT. THE TERM OF THE CONTRACT WAS FOR THE PERIOD JANUARY 4, 1974, OR AS SOON THEREAFTER AS AWARD COULD BE MADE, THROUGH DECEMBER 31, 1974, AND THE ACQUISITION OF THE DISPOSAL SITE WAS THE RESPONSIBILITY OF THE CONTRACTOR SELECTED.

UNDER THE SCHEDULE OF SERVICES SUBJECT TO BIDS, THE DISTRICT LISTED THE TRANSPORTATION AND DISPOSAL OF DIGESTED RESIDUE (ITEM 1A) AND THE INTERIM TREATMENT-TRANSPORTATION AND DISPOSAL OF UNDIGESTED RESIDUE (ITEM 1B). THE IFB PROVIDED THAT THE DISTRICT RESERVED THE RIGHT TO MAKE AWARD ON ALL OR ANY ITEMS ACCORDING TO THE DISTRICT'S BEST INTERESTS, AND TO THIS END THE IFB STATED THAT THE DISTRICT INTENDED TO CONTRACT FOR EITHER ITEMS 1A OR 1B OR BOTH. HOWEVER, IF BOTH ITEMS WERE CONTRACTED FOR THE IFB PROVIDED THAT THE DISTRICT RESERVED THE RIGHT TO TERMINATE ITEM 1B SHOULD IT DECIDE TO DISCONTINUE INTERIM TREATMENT OF THE SEWAGE. THE HOURS OF OPERATION OF THE TREATMENT PLANT WERE TO BE ON A CONTINUOUS BASIS, 24 HOURS A DAY, 7 DAYS A WEEK. THE CONTRACTOR WAS RESPONSIBLE FOR PROVIDING STANDBY TRUCKS FOR DISPOSAL AT NO ADDITIONAL COST TO THE DISTRICT AS COSTS OF THIS SERVICE WERE TO BE PART OF THE BIDDER'S QUOTATION ON ITEMS 1A AND 1B.

UNDER THE IFB, AS AMENDED, THE AVERAGE TONS PER DAY OF RESIDUE TO BE HAULED WAS ESTIMATED TO BE 250, WITH A GUARANTEE OF 200 TONS IN ADDITION TO THAT HAULED BY OTHERS. SHOULD THE DISTRICT CONTINUE INTERIM TREATMENT AT BLUE PLAINS AND BE OTHERWISE UNABLE TO DISPOSE OF THE RESULTING SLUDGE, ITEM 1B WAS INCLUDED TO PROVIDE FOR AN ADDITIONAL REQUIREMENT OF 300 TONS PER DAY, BUT NOT TO EXCEED 700 TONS. HOWEVER, NO GUARANTEED QUANTITY FOR ITEM 1B WAS PROVIDED, AND THE CONTRACTOR WAS NOT GUARANTEED ANY COMPENSATION FOR DOWNTIME DUE TO THE DISTRICT'S INABILITY TO PROCESS SUCH ESTIMATED QUANTITIES OF SLUDGE. THE IFB ALSO REQUIRED A BID GUARANTEE AND PROVIDED THAT FAILURE TO FURNISH THE GUARANTEE IN THE PROPER FORM AND AMOUNT (AS PROVIDED IN DISTRICT FORMS P.O. 20 AND P.O. 24) WOULD BE CAUSE FOR REJECTION OF THE BID.

ON JANUARY 4, 1974, THE THREE BIDS TIMELY RECEIVED WERE OPENED AND RESULTED IN THE FOLLOWING OFFERS:

BIDDER ITEM 1A ITEM 1B

SQUARE DEAL TRUCKING CO., INC. $8.25/TON

HUTCHINSON BROS. EXCAVATING CO., INC. $19.27/TON $18.27/TON

EXCAVATION CONSTRUCTION, INC. $11.90/TON $11.90/TON

ON JANUARY 7, 1974, EXCAVATION CONSTRUCTION, INCORPORATED, FILED A PROTEST WITH THE DISTRICT AGAINST THE AWARD OF A CONTRACT TO SQUARE DEAL TRUCKING COMPANY, INCORPORATED (SQUARE DEAL), ON THE GROUND THAT SQUARE DEAL'S BID WAS NONRESPONSIVE, AND ON JANUARY 28, 1974, THE CONTRACT REVIEW COMMITTEE OF THE DISTRICT NOTIFIED THE MATERIEL MANAGEMENT OFFICER THAT THE PROTEST SHOULD BE DENIED. ON JANUARY 30, 1974 THE DISTRICT DECIDED TO CONTRACT ONLY FOR ITEM 1A, AND THUS AWARDED A CONTRACT TO SQUARE DEAL AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER. ON THAT SAME DAY EXCAVATION CONSTRUCTION FILED A PROTEST WITH THIS OFFICE AGAINST THIS ACTION.

EXCAVATION CONSTRUCTION CONTENDS THAT SQUARE DEAL'S BID IS NONRESPONSIVE AND CITES THE FOLLOWING GROUNDS FOR THIS CONTENTION. THE PROTESTER NOTES THAT WHILE PAGE ONE OF THE IFB DIRECTED EACH BIDDER TO IMPRESS ITS CORPORATE SEAL ON ITS BID AND TO HAVE ITS SECRETARY EFFECT AN ATTESTATION, SQUARE DEAL'S BID FAILED TO COMPLY WITH EITHER REQUIREMENT. MOREOVER, THE PROTESTER ARGUES THAT SQUARE DEAL'S SUBMISSION OF A CASHIER'S CHECK AS A BID GUARANTEE FAILED TO COMPLY WITH THE REQUIREMENTS OF THE IFB BECAUSE A CASHIER'S CHECK WAS NOT LISTED AS AN ACCEPTABLE BID GUARANTEE AND THE IFB SPECIFICALLY PROVIDED THAT UNCERTIFIED CHECKS WOULD NOT BE ACCEPTED. THE PROTESTER ALSO CONTENDS THAT FROM THE TERMS AND CONTENT OF THE SOLICITATION IT WAS CONTEMPLATED THAT BIDDERS BID ON BOTH ITEMS, AND ARGUES THAT SQUARE DEAL'S FAILURE TO BID ON ITEM 1B DICTATES THAT ITS BID BE REJECTED. IN THIS CONNECTION, IT IS POINTED OUT THAT BECAUSE OF THE RESERVATION TO TERMINATE ANY AWARD FOR ITEM 1B, A CONTRACTOR RECEIVING AWARD FOR ONLY THAT ITEM WOULD HAVE NO MEANS OF RECOVERING HIS COSTS AS THE GUARANTEE OF 200 TONS WOULD PROTECT ONLY THE AWARDEE UNDER ITEM 1A. FURTHERMORE, IT IS ARGUED THAT USE OF "CONTRACTOR" IN THE SINGULAR FORM INDICATES THAT ONE AWARD WAS CONTEMPLATED. IN THE ALTERNATIVE, THE PROTESTER ARGUES THAT THE IFB'S USE OF "CONTRACTOR" IN THE SINGULAR AND THE DISTRICT'S FAILURE TO PROVIDE BIDDERS A BASIS ON WHICH TO FORMULATE THEIR BIDS ON ITEM 1B, SO AS TO GUARANTEE RECOVERY OF COSTS IN EVENT OF AWARD OF ONLY THAT ITEM, RENDERED THE IFB AMBIGUOUS AS TO WHETHER BIDS ON ALL ITEMS WERE REQUIRED. THEREFORE, IN THE INTERESTS OF PRESERVING THE INTEGRITY OF THE COMPETITIVE BID SYSTEM, THE PROTESTER REQUESTS THAT ALL BIDS BE REJECTED, THE REQUIREMENT BE READVERTISED, AND THE DISTRICT BE DIRECTED TO EXPLICITLY STATE THE REQUIREMENT FOR BIDDING ON THESE ITEMS.

THE DISTRICT OF COLUMBIA TAKES THE POSITION THAT SQUARE DEAL'S BID WAS RESPONSIVE. THE DISTRICT STATES THAT SQUARE DEAL'S FAILURE TO SUBMIT THE BID GUARANTEE IN THE PROPER FORM WAS PROPERLY WAIVED AS A MINOR INFORMALITY BECAUSE UNDER THE TERMS OF THE IFB IT RESERVED THE RIGHT TO WAIVE INFORMALITIES AND UNDER THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1- 10.103-3, A CASHIER'S CHECK IS AN ACCEPTABLE FORM OF BID GUARANTEE AND, THUS, SQUARE DEAL'S FAILURE TO COMPLY WITH THE IFB'S BID GUARANTEE PROVISION WAS NOT A MATERIAL DEFECT. THE DISTRICT ALSO CONTENDS THAT SQUARE DEAL'S FAILURE TO SUPPLY ITS CORPORATE SEAL AND SECRETARIAL ATTESTATION ON ITS BID WERE PROPERLY WAIVED AS MINOR INFORMALITIES BECAUSE THE BID WAS ACCOMPANIED BY AN ACCEPTABLE BID GUARANTEE WHICH ESTABLISHED SQUARE DEAL'S INTENTION TO BE BOUND BY ITS BID. FINALLY, THE DISTRICT REJECTS THE ARGUMENT THAT BIDDERS WERE REQUIRED TO BID ON ALL ITEMS, AS THE IFB DID NOT SPECIFICALLY REQUIRE BIDS ON BOTH ITEMS 1A AND 1B, THE ITEMS WERE LISTED SEPARATELY IN THE SCHEDULE, AND IN TWO PLACES THE IFB RESERVED TO THE DISTRICT THE RIGHT TO MAKE AWARD FOR ALL ITEMS OR ANY ITEM. THE DISTRICT CONTENDS THAT THIS LAST ARGUMENT BY THE PROTESTER RAISES QUESTIONS CONCERNING THE SPECIFICATIONS AND SHOULD HAVE BEEN ASSERTED PRIOR TO BID OPENING.

SQUARE DEAL ASSERTS THAT THE POSITION OF THE DISTRICT IS CORRECT, AND STATES FURTHER GROUNDS FOR REJECTION OF THE PROTEST. SQUARE DEAL CONTENDS THAT ITS BID GUARANTEE WAS PROPER BECAUSE A CASHIER'S CHECK IS NO LESS ACCEPTABLE AS A BID GUARANTEE THAN A CERTIFIED CHECK BECAUSE A CASHIER'S CHECK EXHIBITS AS FIRM A COMMITMENT. SQUARE DEAL POINTS OUT THAT NO ONE HAS QUESTIONED THE AUTHORITY OF THE PERSON WHO SIGNED ITS BID, NOR ITS INTENT TO BE BOUND BY THAT PERSON'S SIGNATURE. IT ARGUES THAT PARAGRAPH 4 OF THE INSTRUCTIONS TO BIDDERS ONLY REQUIRED AN AUTHORIZED SIGNATURE ON THE BID AND DID NOT INDICATE ANY NECESSITY THAT A CORPORATE SEAL OR SECRETARIAL ATTESTATION BE ATTACHED TO THE BID. FINALLY, SQUARE DEAL ASSERTS THAT THE IFB PROVIDED BIDDERS WITH THE CHOICE OF BIDDING ON ONE OR BOTH ITEMS; THAT IT PROVIDED THE DISTRICT WITH THE OPTION OF ACCEPTING EITHER BID; AND THAT, IN VIEW OF THE LACK OF ANY EXPLICIT REQUIREMENT THAT A BID BE INSERTED ON ALL ITEMS, THE IFB CANNOT BE CONSTRUED TO REQUIRE BIDS ON ALL ITEMS.

IT IS OUR OPINION THAT SQUARE DEAL'S FAILURE TO PROVIDE A BID GUARANTEE IN THE SPECIFIED FORM AND ITS FAILURE TO AFFIX A CORPORATE SEAL AND A SECRETARIAL ATTESTATION WERE PROPERLY WAIVED BY THE DISTRICT AS MINOR INFORMALITIES. IN THIS REGARD, FPR 1-2.405 PROVIDES THAT:

"A MINOR INFORMALITY OR IRREGULARITY IS ONE WHICH IS MERELY A MATTER OF FORM AND NOT OF SUBSTANCE OR PERTAINS TO SOME IMMATERIAL OR INCONSEQUENTIAL DEFECT OR VARIATION OF A BID FROM THE EXACT REQUIREMENT OF THE INVITATION FOR BIDS, THE CORRECTION OR WAIVER OF WHICH WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. THE DEFECT OR VARIATION IN THE BID IS IMMATERIAL AND INCONSEQUENTIAL WHEN ITS SIGNIFICANCE AS TO PRICE, QUANTITY, QUALITY, OR DELIVERY IS TRIVIAL OR NEGLIGIBLE WHEN CONTRASTED WITH THE TOTAL COST OR SCOPE OF THE SUPPLIES OR SERVICES BEING PROCURED. THE CONTRACTING OFFICER SHALL EITHER GIVE THE BIDDER AN OPPORTUNITY TO CURE ANY DEFICIENCY RESULTING FROM A MINOR INFORMALITY OR IRREGULARITY IN A BID OR WAIVE SUCH DEFICIENCY, WHICHEVER IS TO THE ADVANTAGE OF THE GOVERNMENT. ***"

WHILE THE DISTRICT, AS SUCH, IS NOT SUBJECT TO THE FEDERAL PROCUREMENT REGULATIONS, THE DISTRICT HAS STIPULATED THAT ITS PROCUREMENTS WILL BE GUIDED BY THE FPR WHERE THE DC GOVERNMENT LACKS ITS OWN POLICIES AND PROCEDURES. B-178559, JUNE 25, 1973; B-173519, SEPTEMBER 27, 1971. FORM P.O. 20 OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, APPLICABLE TO THIS IFB, PROVIDES THAT IN ORDER TO GUARANTEE THAT THE SUCCESSFUL BIDDER WILL, WHEN SO REQUIRED, FURNISH A SUFFICIENT PERFORMANCE BOND FOR THE FAITHFUL PERFORMANCE OF THE CONTRACT, BIDS ARE TO BE ACCOMPANIED BY A BID GUARANTEE IN A SUM EQUAL TO TEN PERCENT OF THE TOTAL AMOUNT OF THE BID. THE FORM ALSO PROVIDES THAT THE BID GUARANTEE "MAY" BE IN THE FORM OF A CERTIFIED CHECK OR ONE OF SEVERAL TYPE OF BONDS. THE APPLICABLE FEDERAL PROCUREMENT REGULATIONS, FPR 1 10.102-2 ET SEQ. (ON WHICH THE DISTRICT RELIES), DEFINES A BID GUARANTEE AS A FIRM COMMITMENT THAT A SUCCESSFUL BIDDER WILL EXECUTE THE REQUIRED CONTRACTUAL DOCUMENTS AND IT INCLUDES A CASHIER'S CHECK AS A PROPER FORM OF BID GUARANTEE. IN VIEW OF THE FPR GUIDANCE ON THIS MATTER, AND SINCE THE PRIMARY CONCERN IS WHETHER THE BIDDER'S COMMITMENT IS FIRM, WE BELIEVE THAT A CASHIER'S CHECK CAN PROPERLY BE ACCEPTED AS REPRESENTING THIS COMMITMENT. THEREFORE, THERE IS NO BASIS FOR OUR OFFICE TO OBJECT TO WAIVER OF THIS REQUIREMENT AND ACCEPTANCE OF A CASHIER'S CHECK IN LIEU OF A CERTIFIED CHECK.

IN REGARD TO THE MATTER OF THE CORPORATE SEAL AND SECRETARIAL ATTESTATION, THE IFB CONTAINED NO EXPLICIT REQUIREMENT IN THIS REGARD. HOWEVER, SPACE WAS PROVIDED IN THE SIGNATORY PORTION OF THE BID TO IMPRESS A CORPORATE SEAL AND FOR THE CORPORATE SECRETARY TO SIGN. THIS SPACE WAS LOCATED ALONGSIDE THE SPACE PROVIDED FOR THE BIDDER'S NAME AND LEGALLY AUTHORIZED SIGNATURE, WHICH WERE PROPERLY COMPLETED. HOWEVER, PARAGRAPH 4 OF THE INSTRUCTIONS TO BIDDERS PROVIDED ONLY THAT BIDS BY CORPORATIONS MUST BE SIGNED BY ONE AUTHORIZED TO SIGN AND, WHEN REQUESTED, EVIDENCE OF THE SIGNER'S AUTHORITY SHALL BE FURNISHED. THE LATTER PROVISION IS IN ACCORD WITH THE DECISIONS OF OUR OFFICE TO THE EFFECT THAT THE PROOF OF AN AGENT'S BIDDING AUTHORITY MAY BE FURNISHED AFTER BID OPENING. 50 COMP. GEN. 627, 633 (1971); 49 COMP. GEN. 527, 529 (1970); B-179589, JANUARY 23, 1974. THEREFORE, THE FAILURE OF SQUARE DEAL TO FURNISH WITH ITS BID A CORPORATE SEAL AND SECRETARIAL ATTESTATION FOR THE PURPOSE OF ESTABLISHING THE AUTHENTICITY OF THE BID WAS PROPERLY WAIVED BY THE DISTRICT AS A MINOR INFORMALITY.

FINALLY, EXCAVATION CONSTRUCTION CONTENDS THAT SQUARE DEAL'S BID WAS NONRESPONSIVE BECAUSE IT FAILED TO INCLUDE A BID ON BOTH ITEMS 1A AND 1B. WE HAVE HELD THAT IN THE ABSENCE OF A PROVISION IN AN IFB THAT REQUIRED BIDDERS TO BID ON ALL ITEMS, A BID ON LESS THAN ALL ITEMS MAY BE CONSIDERED RESPONSIVE AS TO THOSE ITEMS ON WHICH BIDS ARE SUBMITTED. COMP. GEN. 721, 724 (1962); B-173532, AUGUST 25, 1971. THE SUBJECT IFB DID NOT CONTAIN ANY EXPRESS REQUIREMENT THAT FAILURE TO BID ON ALL ITEMS WOULD RENDER A BID NONRESPONSIVE. MORE IMPORTANTLY, THE IFB EXPRESSLY PROVIDED IN THE SCHEDULE OF SERVICES THAT IT WAS THE INTENT OF THE DISTRICT TO CONTRACT FOR EITHER ITEM 1A OR ITEM 1B OR BOTH, AND IN PARAGRAPH 6 OF THE INSTRUCTIONS TO BIDDERS THAT THE DISTRICT RESERVED THE RIGHT TO MAKE AWARD ON ALL OF THE ITEMS OR ANY OF THE ITEMS, ACCORDING TO THE BEST INTERESTS OF THE DISTRICT. IN VIEW OF THESE EXPRESS PROVISIONS, WE DO NOT BELIEVE THAT USE OF THE SINGULAR FORM OF THE WORD CONTRACTOR OR THE FACT THAT A BID ON ONLY ITEM 1B MAY HAVE BEEN IMPRACTICAL REQUIRES THE CONCLUSION THAT A BID ON ONLY ONE ITEM WAS NONRESPONSIVE OR THAT THE IFB WAS AMBIGUOUS. IN THIS CONNECTION, WE NOTE THAT THE PLURAL FORM OF CONTRACTOR WAS ALSO USED AND THE PROVISION CONCERNING THE TWO LOADING DOCKS INDICATES THE POSSIBILITY OF MORE THAN ONE AWARD. FURTHERMORE, ANY QUESTION CONCERNING THE INTENT OF OR DEFICIENCIES IN THE SPECIFICATIONS WAS REQUIRED TO BE RAISED PRIOR TO BID OPENING. 4 CFR 20.2(A); 52 COMP. GEN. 184, 188 (1972).

ACCORDINGLY, THE PROTEST IS DENIED.