B-183082, APR 2, 1975

B-183082: Apr 2, 1975

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PROTEST BASED ON ILLEGIBILITY OF BID GUARANTY CLAUSE IN BID PACKAGE SHOULD HAVE BEEN FILED PRIOR TO BID OPENING. SEC. 20.2(A) AND FILING OF PROTEST SUBSEQUENT TO REJECTION OF BID FOR IMPROPER BID GUARANTY IS UNTIMELY. 2. REJECTION OF BID AS NONRESPONSIVE FOR FAILING TO HAVE SUFFICIENT BID GUARANTY WAS PROPER BECAUSE BID GUARANTY REQUIREMENT IS MATERIAL PART OF IFB AND ALLEGED MISTAKE IN AMOUNT OF BID GUARANTY MAY NOT BE CORRECTED. MAY STILL BE CONSIDERED FOR AWARD AS OTHER TERMS OF IFB BOUND BIDDER TO 100-DAY COMPLETION PERIOD AND NO EXCEPTIONS WERE TAKEN BY BIDDER TO REQUIRED COMPLETION DATE. 4. FAILURE OF BIDDER TO COMPLY WITH REQUIREMENT THAT BIDS BE SUBMITTED IN TRIPLICATE WAS MINOR INFORMALITY AND PROPERLY WAIVED UNDER FPR SEC. 1- 2.405(A).

B-183082, APR 2, 1975

1. PROTEST BASED ON ILLEGIBILITY OF BID GUARANTY CLAUSE IN BID PACKAGE SHOULD HAVE BEEN FILED PRIOR TO BID OPENING, 4 C.F.R. SEC. 20.2(A) AND FILING OF PROTEST SUBSEQUENT TO REJECTION OF BID FOR IMPROPER BID GUARANTY IS UNTIMELY. 2. REJECTION OF BID AS NONRESPONSIVE FOR FAILING TO HAVE SUFFICIENT BID GUARANTY WAS PROPER BECAUSE BID GUARANTY REQUIREMENT IS MATERIAL PART OF IFB AND ALLEGED MISTAKE IN AMOUNT OF BID GUARANTY MAY NOT BE CORRECTED, AS TO DO SO WOULD MAKE NONRESPONSIVE BID RESPONSIVE AFTER BID OPENING. 3. BIDDER, WHO FAILED TO INSERT NUMBER OF DAYS FOR COMPLETION OF WORK UNDER IFB, MAY STILL BE CONSIDERED FOR AWARD AS OTHER TERMS OF IFB BOUND BIDDER TO 100-DAY COMPLETION PERIOD AND NO EXCEPTIONS WERE TAKEN BY BIDDER TO REQUIRED COMPLETION DATE. 4. FAILURE OF BIDDER TO COMPLY WITH REQUIREMENT THAT BIDS BE SUBMITTED IN TRIPLICATE WAS MINOR INFORMALITY AND PROPERLY WAIVED UNDER FPR SEC. 1- 2.405(A).

E. SPRAGUE, BATAVIA, INC.:

E. SPRAGUE, BATAVIA, INC. (SPRAGUE) HAS PROTESTED THE REJECTION OF ITS BID UNDER PROJECT NO. MR-3-513-75 ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, BATAVIA, NEW YORK, FOR THE INSTALLATION OF A FIRE ALARM SYSTEM. THE BID WAS REJECTED BECAUSE IT DID NOT CONTAIN A SUFFICIENT BID GUARANTY AND AWARD HAS BEEN MADE TO THE SECOND LOW BIDDER BUT THE NOTICE TO PROCEED IS BEING WITHHELD PENDING DISPOSITION OF THE PROTEST.

PARAGRAPH (F) OF STANDARD FORM 20 INCLUDED IN THE IFB READS AS FOLLOWS:

"(F) BID GUARANTY IS REQUIRED IN AN AMOUNT NOT LESS THAN 20% OF THE AMOUNT OF THE BID, BUT SHALL NOT EXCEED $3,000,000. FAILURE TO FURNISH THE REQUIRED BID GUARANTY IN THE PROPER FORM AND AMOUNT BY THE TIME SET FORTH FOR THE OPENING OF BIDS, WILL REQUIRE REJECTION OF THE BID IN ALL CASES EXCEPT THOSE LISTED IN FPR 1-10.103-4 AND MAY BE CAUSE FOR REJECTION EVEN THEN."

SPRAGUE'S BASE BID WAS $109,000 AND WITH ITS BID WAS SUBMITTED A CERTIFIED CHECK IN THE AMOUNT OF $3,000. THE PROPER AMOUNT FOR THE BID GUARANTY OF SPRAGUE'S BID SHOULD HAVE BEEN $21,800. THEREFORE, THE CONTRACTING OFFICER DETERMINED THE BID TO BE NONRESPONSIVE AND REJECTED IT.

SPRAGUE HAS PROTESTED TO OUR OFFICE THAT THE MISTAKE IN THE AMOUNT OF THE BID GUARANTY WAS MERELY A CLERICAL ERROR IN READING $3,000,000 AS $3,000 CAUSED BY A POOR QUALITY COPY OF THE IFB, WHICH CLERICAL ERROR SHOULD BE CORRECTED AND, FURTHER, THAT ALL OTHER BIDS SUBMITTED ALSO CONTAINED IRREGULARITIES. THEREFORE, IF AWARD IS NOT MADE TO SPRAGUE, ALL BIDS SHOULD BE REJECTED AND THE REQUIREMENT RESOLICITED.

OUR OFFICE HAS REVIEWED A COPY OF THE SOLICITATION AND FIND THAT PARAGRAPH (F) OF STANDARD FORM 20 WAS READABLE AND, MOREOVER, IF SPRAGUE HAD A QUESTION ABOUT THE CONTENTS OF THE IFB, THIS MATTER SHOULD HAVE BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO BID OPENING OR A PROTEST FILED WITH OUR OFFICE. AS THIS GROUND OF PROTEST IS ACTUALLY AGAINST AN IMPROPRIETY IN THE SOLICITATION APPARENT PRIOR TO BID OPENING, IT IS UNTIMELY UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. SEC. 20.2(A) (1974)) WHICH PROVIDES THAT PROTESTS AGAINST IMPROPRIETIES CONTAINED IN A SOLICITATION APPARENT PRIOR TO BID OPENING MUST BE FILED WITH OUR OFFICE PRIOR TO BID OPENING.

AS REGARDS THE REJECTION OF SPRAGUE'S BID BECAUSE OF AN INSUFFICIENT BID BOND, SUCH ACTION WAS PROPER IN VIEW OF THE PAST DECISIONS OF OUR OFFICE AND THE APPLICABLE REGULATIONS IN THE AREA. WHILE PARAGRAPH 4 OF STANDARD FORM 22, ALSO INCLUDED IN THE IFB, STATES THAT FAILURE TO FURNISH THE REQUIRED GUARANTY MAY BE CAUSE FOR REJECTION OF THE BID, THE PERMISSIVE TERM "MAY" IS USED TO ALLOW FOR THE ACCEPTANCE OF A BID CONTAINING AN INSUFFICIENT GUARANTY IF ONE OF THE FOUR EXCEPTIONS CONTAINED IN SECTION 1 -10.103-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) (1964 ED. CIRC. IS PRESENT. NONE OF THESE FOUR EXCEPTIONS ARE APPLICABLE TO THE INSTANT FACTS. THERE IS FOR APPLICATION, THEREFORE, THE PRINCIPLE THAT A FAILURE, AS HERE, TO COMPLY WITH BID GUARANTY PROVISIONS REQUIRES THE REJECTION OF THE BID AS NONRESPONSIVE AND THAT THE FAILURE MAY NOT BE WAIVED OR OTHERWISE EXCUSED. MATTER OF ASSOCIATED REFUSE & COMPACTION SERVICES, INC., B-180484, APRIL 17, 1974.

CONCERNING THE ALLEGATION THAT THE MISTAKE IN THE BID GUARANTY WAS ONLY A CLERICAL ERROR WHICH SHOULD BE CORRECTED, IT IS ALSO A WELL ESTABLISHED RULE THAT BIDS MAY NOT BE CHANGED AFTER PUBLIC OPENING OR CORRECTED TO CURE A FACTOR OF NONRESPONSIVENESS. 38 COMP. GEN. 819 (1959).

THEREFORE, OUR OFFICE FINDS NO BASIS TO OBJECT TO THE REJECTION OF SPRAGUE'S BID.

FINALLY, SPRAGUE HAS PROTESTED AGAINST THE ACCEPTANCE OF ANY OF THE OTHER BIDS BECAUSE OF IRREGULARITIES CONTAINED IN THEM WHICH IT IS ALLEGED ARE AS SERIOUS AS THE ERROR IN THE AMOUNT OF SPRAGUE'S BID GUARANTY. THE OTHER BIDS RECEIVED EITHER DID NOT STIPULATE THE NUMBER OF DAYS FOR COMPLETION OF THE PROJECT OR THE BIDDER FAILED TO RETURN ALL THREE COPIES OF THE IFB.

THE IFB STATED THAT "WORK IS TO BE COMPLETED WITHIN 100 CALENDAR DAYS" IN PARAGRAPH (H) OF STANDARD FORM 20. STANDARD FORM 21 CONTAINED A STATEMENT THAT THE BIDDER AGREED TO COMPLETE THE WORK WITHIN NUMBER OF DAYS AFTER RECEIPT OF A NOTICE TO PROCEED. MOST OF THE BIDDERS DID NOT INSERT ANY NUMBER IN THIS BLANK. SPRAGUE INSERTED 100 DAYS AND ANOTHER BIDDER WROTE 360 DAYS IN THE BLANK. THE LATTER BID WAS REJECTED AS NONRESPONSIVE. HOWEVER, WE DO NOT VIEW THE FAILURE TO INSERT NUMBER OF DAYS IN THE SPACE PROVIDED AS A SUFFICIENT REASON FOR THE REJECTION OF THE OTHER BIDS. THE OTHER BIDDERS WERE STILL BOUND BY THE TERMS OF THE INVITATION AND TOOK NO EXCEPTION TO THE REQUIRED COMPLETION DATE. THEREFORE, THIS OMISSION DOES NOT AFFECT THE RESPONSIVENESS OF THE OTHER BIDS. B-161843, JUNE 19, 1967.

REGARDING THE FAILURE OF A BIDDER TO RETURN ALL COPIES OF THE BIDDING DOCUMENTS, SUCH AN OMISSION IS CONSIDERED A MINOR INFORMALITY UNDER FPR SEC. 1-2.405(A) (1964 ED. CIRC. 1) AND MAY BE WAIVED. 51 COMP. GEN. 329 (1971).

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED AND OUR OFFICE HAS NO OBJECTION TO THE AWARD AS MADE.