B-228393, Oct 21, 1987, 87-2 CPD 381

B-228393: Oct 21, 1987

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Bid guarantee provision in solicitation is a material requirement which must be met at the time of the bid opening. A bid which does not include the bid bond is nonresponsive and cannot be made responsive by furnishing the bond after bid opening. Notice in a solicitation that funds are not presently available for contract award does not relieve a bidder from submitting a bid bond required by the terms of the solicitation. Bids were opened on Sept. 3. Calculus was the apparent low bidder. Calculus did not submit a bid bond with its bid and the contracting officer determined that the bid was nonresponsive on that basis. Calculus protests that a bid guarantee should not be required because no funds have been appropriated for this contract.

B-228393, Oct 21, 1987, 87-2 CPD 381

PROCUREMENT - Sealed Bidding - Bids - Bid Guarantees - Omission - Responsiveness DIGEST: 1. Bid guarantee provision in solicitation is a material requirement which must be met at the time of the bid opening. Therefore, a bid which does not include the bid bond is nonresponsive and cannot be made responsive by furnishing the bond after bid opening. PROCUREMENT - Sealed Bidding - Bid Guarantees - Propriety - Invitations for Bids - Funding Restrictions 2. Notice in a solicitation that funds are not presently available for contract award does not relieve a bidder from submitting a bid bond required by the terms of the solicitation.

Calculus, Inc.:

Calculus, Inc. protests the rejection of its bid as nonresponsive for failure to furnish the required bid bond under solicitation No. DABT5l-87-B-0251 issued by the Department of the Army for replacement of compressed air systems. We dismiss the protest.

Bids were opened on Sept. 3, 1987, and Calculus was the apparent low bidder. However, Calculus did not submit a bid bond with its bid and the contracting officer determined that the bid was nonresponsive on that basis. Calculus protests that a bid guarantee should not be required because no funds have been appropriated for this contract. Calculus contends that it is against Department of Defense (DOD) regulations to require a contractor to make expenditures for a contract for which funds have not been appropriated. Calculus asserts that it is prepared to submit the necessary bond, once funds have been appropriated and the contract is awarded.

A bid bond assures that the bidder will not withdraw its bid within the time specified for acceptance. Harrison Contracting, Inc., B-227165, Oct. 7, 1986, 86-2 CPD Para. 702. Our Office has consistently held that a bid is nonresponsive when the required bond is not submitted. Dean Security Professionals, B-227573.6, 86-2 CPD Para. 667. When required by the solicitation, a bid bond is a material part of the bid and must be furnished with it. A bid which is nonresponsive due to the lack of an adequate bond cannot be made responsive by the furnishing of the bond after bid opening. See Harrison Contracting, Inc., B-227165, supra.

Moreover, Calculus' assertion that it is against DOD policy to "require a contractor to make expenditures for a contract for which no funds have been appropriated" is irrelevant to the issue at hand as the obligation here is on the bidder, not a contractor. The solicitation requires bidders to submit a bid bond, and there is never a guarantee that any particular bidder will recover the cost of preparing and submitting a bid. Calculus was free to refrain from bidding if it chose not to take the financial risk necessary to bid in the face of the notice that no funds were presently available. Having chosen to bid, however, it was required to conform to the solicitation's requirements if its bid were to be considered for award if and when the necessary funds became available.

We therefore find that the bid was properly rejected.

The protest is dismissed.