B-219412, AUG 9, 1985, 85-2 CPD 153

B-219412: Aug 9, 1985

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BONDS - BID - DEFICIENCIES - AMOUNT DIGEST: LOW BID CONTAINING BID BOND IN AMOUNT LESS THAN THE IFB REQUIRED AND ALSO LESS THAN THE DIFFERENCE BETWEEN THE BID PRICE AND THE NEXT HIGHER ACCEPTABLE BID WAS PROPERLY REJECTED AS NONRESPONSIVE. WAS ADVISED THAT THE IFB REQUIREMENT COULD NOT BE MODIFIED. WHICH WAS ABOUT 5 PERCENT OF ITS LOW BID PRICE OF $162. THE CONTRACTING OFFICER IS REQUIRED TO REJECT A BID THAT DOES NOT COMPLY WITH THE SOLICITATION REQUIREMENT FOR A BID BOND EXCEPT UNDER SPECIFIC CONDITIONS. THE REQUIREMENT FOR A BID BOND IS A MATERIAL REQUIREMENT THAT CANNOT BE WAIVED EXCEPT UNDER THE CONDITIONS ENUMERATED IN THE FAR. THE BOND'S DEFICIENCY WOULD HAVE BEEN WAIVED IF THE $8.

B-219412, AUG 9, 1985, 85-2 CPD 153

BONDS - BID - DEFICIENCIES - AMOUNT DIGEST: LOW BID CONTAINING BID BOND IN AMOUNT LESS THAN THE IFB REQUIRED AND ALSO LESS THAN THE DIFFERENCE BETWEEN THE BID PRICE AND THE NEXT HIGHER ACCEPTABLE BID WAS PROPERLY REJECTED AS NONRESPONSIVE.

UNITED CONTROL SYSTEMS, INC:

UNITED CONTROL SYSTEMS, INC. (UCS) PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) NO. 673-26-85, THE SECOND STEP OF A TWO-STEP FORMALLY ADVERTISED PROCUREMENT, ISSUED BY THE VETERANS ADMINISTRATION (VA) FOR AN ENERGY MANAGEMENT SYSTEM FOR THE VA MEDICAL CENTER, TAMPA, FLORIDA. WE DISMISS THE PROTEST.

THE IFB REQUIRED BIDDERS TO SUBMIT A BID BOND AMOUNTING TO 20 PERCENT OF THE BID PRICE. ON BID OPENING DAY, UCS, ON INFORMING THE CONTRACTING OFFICER THAT IT COULD NOT MEET THE BID BOND REQUIREMENT, WAS ADVISED THAT THE IFB REQUIREMENT COULD NOT BE MODIFIED. SINCE UCS SUBMITTED A BOND OF $8,150, WHICH WAS ABOUT 5 PERCENT OF ITS LOW BID PRICE OF $162,932, THE VA REJECTED THE BID AS NONRESPONSIVE.

UCS ARGUES THAT ITS BID SHOULD BE ACCEPTED BECAUSE OF THE SAVINGS IT WOULD AFFORD THE GOVERNMENT, AND EMPHASIZES THE MORE THAN $14,000 DIFFERENCE BETWEEN ITS BID AND THE SECOND LOWEST BID. UNDER SECTION 28.101-4 OF THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 28.101-4 (1984), THE CONTRACTING OFFICER IS REQUIRED TO REJECT A BID THAT DOES NOT COMPLY WITH THE SOLICITATION REQUIREMENT FOR A BID BOND EXCEPT UNDER SPECIFIC CONDITIONS, NONE OF WHICH APPLIES HERE. FURTHERMORE, THE REQUIREMENT FOR A BID BOND IS A MATERIAL REQUIREMENT THAT CANNOT BE WAIVED EXCEPT UNDER THE CONDITIONS ENUMERATED IN THE FAR. DESIGN ENGINEERS, B-214658, APRIL 10, 1984, 84-1 CPD PARA. 408.

IN VIEW OF UCS'S EMPHASIS ON MONETARY SAVINGS, WE POINT OUT THAT, UNDER THE REGULATION, THE BOND'S DEFICIENCY WOULD HAVE BEEN WAIVED IF THE $8,150 GUARANTEE AMOUNT WERE EQUAL TO OR GREATER THAN THE DIFFERENCE BETWEEN UCS'S BID PRICE AND THE NEXT HIGHER ACCEPTABLE BID. HOWEVER, THE DIFFERENCE BETWEEN UCS'S BID AND THE NEXT HIGHER BID WAS $14,545, AND THIS EXCEPTION, THEREFORE, DID NOT APPLY. FURTHERMORE, HAS LONG BEEN OUR POSITION THAT THE PUBLIC INTEREST IN STRICTLY MAINTAINING THE COMPETITIVE BIDDING PROCEDURES THAT PROVIDE AN EQUAL BASIS FOR COMPETITION OUTWEIGHS ANY PECUNIARY ADVANTAGE THE GOVERNMENT MIGHT GAIN IN A PARTICULAR CASE BY VIOLATING THOSE PROCEDURES. DESIGN ENGINEERS, SUPRA.

THE PROTEST IS DISMISSED.