B-210599, FEBRUARY 17, 1983, 62 COMP.GEN. 210

B-210599, FEBRUARY 17, 1983, 62 COMP.GEN. 210

BIDS - GUARANTEES - BID GUARANTEES - REQUIREMENT - CONSTRUCTION CONTRACTS UNDER $25,000 - ADMINISTRATIVE AUTHORITY THE MILLER ACT AS AMENDED, 40 U.S.C. 270A, DOES NOT PRECLUDE THE GENERAL SERVICES ADMINISTRATION FROM REQUIRING BID GUARANTEES IN CONNECTION WITH BIDS FOR CONSTRUCTION CONTRACTS UNDER $25,000.

MATTER OF: PINE STREET CORP., FEBRUARY 17, 1983:

PINE STREET CORP. PROTESTS AN AMENDMENT TO GENERAL SERVICES ADMINISTRATION SOLICITATION NUMBER GS-11B-32019 (A SOLICITATION FOR CONSTRUCTION) THAT CHANGED THE REQUIREMENT THAT BIDDERS FURNISH A BID GUARANTEE (BID BOND) WITH BIDS EXCEEDING $25,000 TO THE REQUIREMENT THAT A BID GUARANTEE BE FURNISHED WITH BIDS EXCEEDING $10,000. PINE STREET COMPLAINT THAT THE AMENDMENT IS CONTRARY TO THE MILLER ACT AS AMENDED, 40 U.S.C. 270A (SUPP. IV 1980). THE PROTEST IS SUMMARILY DENIED.

A BID BOND IS A CREATURE OF THE PROCUREMENT REGULATIONS; IT IS NOT A BOND THAT IS MANDATED BY STATUTE. THE MILLER ACT AMENDMENT RAISED THE DOLLAR THRESHOLD FOR THE REQUIREMENT THAT PERFORMANCE AND PAYMENT BONDS BE FURNISHED FROM $2,000 TO $25,000. THE AMENDMENT DID NOT ALTER THE CONTRACTING OFFICER'S AUTHORITY TO REQUIRE THESE BONDS FOR BIDS BELOW $25,000. SEE ELEVATOR SALES & SERVICE, INC., B-193519, FEBRUARY 13, 1979, 79-1 CPD 102. SIMILARLY, THE FEDERAL PROCUREMENT REGULATIONS (FPR), SEC. 1-10.104 AND SEC. 1-10.105, REQUIRE THE USE OF PERFORMANCE AND PAYMENT BONDS IN CONNECTION WITH ANY CONSTRUCTION CONTRACT EXCEEDING $25,000. THE FPR DOES NOT PROHIBIT THEIR USE IN SMALLER CONSTRUCTION CONTRACTS.

WITH RESPECT TO BID BONDS, THE FPR STATES ONLY THAT THE "USE OF A BID GUARANTEE IS REQUIRED WHEN A PERFORMANCE BOND OR A PERFORMANCE AND PAYMENT BOND IS REQUIRED." COMPARE DEFENSE ACQUISITION REGULATION SEC. 10-102.2. THE SOLICITATION REQUIRES SUCH BONDS TO BE FURNISHED. THUS, THE AMENDMENT IS NOT CONTRARY TO THE MILLER ACT.

THE PROTEST IS DENIED.