B-226664, APR 28, 1987, 87-1 CPD 448

B-226664: Apr 28, 1987

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PROCUREMENT - SEALED BIDDING - BID GUARANTEES - RESPONSIVENESS - LIABILITY RESTRICTIONS DIGEST: LOW BID CONTAINING BID BOND IN AMOUNT LESS THAN THE SOLICITATION REQUIRED AND ALSO LESS THAN THE DIFFERENCE BETWEEN THE BID PRICE AND THE NEXT HIGHER ACCEPTABLE BIDDER WAS PROPERLY REJECTED AS NONRESPONSIVE. THE NAVY REJECTED FORTH DIMENSION'S BID BECAUSE ITS BID BOND WAS FOR ONLY 2 PERCENT OF ITS BID PRICE AND THE SOLICITATION REQUIRED THAT THE BID BONDS GUARANTEE AT LEAST 20 PERCENT OF THE CONTRACT PRICE. WE DISMISS THE PROTEST UNDER OUR BID PROTEST REGULATIONS WITHOUT REQUIRING THE SUBMISSION OF AN AGENCY REPORT BECAUSE IT IS CLEAR ON ITS FACE THAT THE PROTEST IS WITHOUT MERIT. 4 C.F.R. THE ERROR WAS ADMINISTRATIVE IN NATURE.

B-226664, APR 28, 1987, 87-1 CPD 448

PROCUREMENT - SEALED BIDDING - BID GUARANTEES - RESPONSIVENESS - LIABILITY RESTRICTIONS DIGEST: LOW BID CONTAINING BID BOND IN AMOUNT LESS THAN THE SOLICITATION REQUIRED AND ALSO LESS THAN THE DIFFERENCE BETWEEN THE BID PRICE AND THE NEXT HIGHER ACCEPTABLE BIDDER WAS PROPERLY REJECTED AS NONRESPONSIVE.

FORTH DIMENSION DESIGN & CONSTRUCTION, INC.:

FORTH DIMENSION DESIGN & CONSTRUCTION, INC., PROTESTS THE REJECTION OF ITS LOW BID AS NONRESPONSIVE TO INVITATION FOR BIDS NO. N62470-87-13 5788, ISSUED BY THE OFFICER IN CHARGE OF CONSTRUCTION, NORFOLK NAVAL SHIP YARD (NAVY). THE NAVY REJECTED FORTH DIMENSION'S BID BECAUSE ITS BID BOND WAS FOR ONLY 2 PERCENT OF ITS BID PRICE AND THE SOLICITATION REQUIRED THAT THE BID BONDS GUARANTEE AT LEAST 20 PERCENT OF THE CONTRACT PRICE.

WE DISMISS THE PROTEST UNDER OUR BID PROTEST REGULATIONS WITHOUT REQUIRING THE SUBMISSION OF AN AGENCY REPORT BECAUSE IT IS CLEAR ON ITS FACE THAT THE PROTEST IS WITHOUT MERIT. 4 C.F.R. SEC. 21.3(F) (1986).

FORTH DIMENSION CONTENDS THAT ITS BID SHOULD BE ACCEPTED BECAUSE IT ATTEMPTED TO CORRECT THE ERROR IMMEDIATELY AFTER BEING INFORMED OF THE DEFICIENCY, THE ERROR WAS ADMINISTRATIVE IN NATURE, AND DID NOT INFLUENCE ITS BIDDING. FURTHER, FORTH DIMENSION ADVISES THAT ITS BID IS $15,674 LOWER THAN THE AWARDEE'S BID.

GENERALLY, A BID WHICH CONTAINS A BID GUARANTEE INSUFFICIENT IN AMOUNT MUST BE REJECTED AS NONRESPONSIVE. HOWEVER, FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 28.101-4(B) (1986), PERMITS AWARD NOTWITHSTANDING THAT A BID GUARANTEE IS LESS THAN THE REQUIRED AMOUNT IF THE GUARANTEE IS EQUAL TO OR GREATER THAN THE DIFFERENCE BETWEEN THE BID PRICE AND THE NEXT HIGHER ACCEPTABLE BID.

FORTH DIMENSION'S BID PRICE WAS $218,684.17 AND THE NEXT BID WAS $15,674 HIGHER. SINCE FORTH DIMENSION'S BID GUARANTEE WAS ONLY 2 PERCENT OF ITS BID OR $4,372, ITS BID DID NOT QUALIFY FOR A WAIVER.

ALTHOUGH FORTH DIMENSION INDICATES THAT IT WAS WILLING TO CORRECT ITS BID, THE REQUIREMENT FOR A BID GUARANTEE IN A SOLICITATION IS A MATERIAL REQUIREMENT WHICH CANNOT BE WAIVED OR CORRECTED AFTER BID OPENING BECAUSE IT INVOLVES THE RESPONSIVENESS OF THE BID, WHICH IS TO BE DETERMINED AT BID OPENING FROM THE BID DOCUMENT ITSELF WITHOUT RESORT TO EXPLANATION FROM THE BIDDER. PERMITTING A BIDDER TO MAKE A CORRECTION TO ITS BID THAT AFFECTS THE RESPONSIVENESS OF THE BID WOULD BE PREJUDICIAL TO OTHER BIDDERS BECAUSE THE BIDDER WOULD BE GAINING THE ADVANTAGE OF DECIDING WHETHER TO ACCEPT OR REJECT THE AWARD BY MAKING ITS BID RESPONSIVE OR NONRESPONSIVE AS ITS BUSINESS INTEREST MIGHT DICTATE. SEE AVS INC., B-218205, MAR. 14, 1985, 85-1 CPD PARA. 328.

EVEN, THOUGH ACCEPTING FORTH DIMENSION'S BID WOULD SAVE MONEY, THE PUBLIC INTEREST IN STRICTLY MAINTAINING THE COMPETITIVE BIDDING PROCEDURES REQUIRED BY LAW OUTWEIGHS ANY PECUNIARY ADVANTAGE WHICH THE GOVERNMENT MIGHT GAIN IN A PARTICULAR CASE BY A VIOLATION OF THOSE PROCEDURES. ID.

THE PROTEST IS DISMISSED.