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B-240251.2, Jul 31, 1990

B-240251.2 Jul 31, 1990
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Highlights

PROCUREMENT - Contractor Qualification - Responsibility/responsiveness distinctions - Sureties - Financial capacity DIGEST: Bid is responsive despite individual surety's failure to file pledge of assets with bid bond since a pledge of assets concerns responsibility and thus may be furnished any time prior to award. Benson contends that Pamfilis's bid should have been rejected as nonresponsive because the bidder failed to submit with its bid a "pledge of assets" for the individual surety supporting its required bid guarantee. We dismiss the protest without obtaining a report from the agency because it is clear from the face of the protest that it does not state a valid basis for protest. The purpose of a bid guarantee is to secure the liability of a surety to the government in the event that the bidder fails to fulfill its obligation to execute a written contract.

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B-240251.2, Jul 31, 1990

PROCUREMENT - Contractor Qualification - Responsibility/responsiveness distinctions - Sureties - Financial capacity DIGEST: Bid is responsive despite individual surety's failure to file pledge of assets with bid bond since a pledge of assets concerns responsibility and thus may be furnished any time prior to award.

Attorneys

R.C. Benson & Sons, Inc.:

R.C. Benson & Sons, Inc. protests an award of a contract to Pamfilis Painting, Inc. under invitation for bids (IFB) No. F04689-90-B-0004, issued by the Department of the Air Force. Benson contends that Pamfilis's bid should have been rejected as nonresponsive because the bidder failed to submit with its bid a "pledge of assets" for the individual surety supporting its required bid guarantee.

We dismiss the protest without obtaining a report from the agency because it is clear from the face of the protest that it does not state a valid basis for protest. Bid Protest Regulations, 4 C.F.R. Sec. 21.3(m) (1990).

The purpose of a bid guarantee is to secure the liability of a surety to the government in the event that the bidder fails to fulfill its obligation to execute a written contract. The sufficiency, and thus the responsiveness, of a bid guarantee depends on whether a surety is clearly bound by its terms. O. V. Campbell & Sons Indus., Inc., B-229555, Mar. 14, 1988, 88-1 CPD Para. 259. The failure to submit a surety's pledge of assets with the bid, however, in no way affects the individual surety's liability. In fact, a pledge of assets serves only one purpose: it assists the contracting officer in determining the financial acceptability of the individual surety, which itself is a matter of responsibility, not responsiveness. See Aceves Constr. and Maintenance, Inc., B-233027, Jan. 4, 1989, 89-1 CPD Para. 7. Thus, even though the IFB required a pledge of assets from individual sureties, since the pledges contain information bearing on responsibility, they may be provided any time prior to award. See American Constr., B-213199, July 24, 1984, 84-2 CPD Para. 95. Therefore, Pamfilis's submission of its pledge of assets after bid opening had no effect on the responsiveness of its bid; it was permissible since it had no bearing on the contractor's promise to perform.

To the extent Benson may be challenging Pamfilis's responsibility, i.e., the sufficiency of its surety's pledge of assets, this issue will not be considered; our Office will not review protests against affirmative determinations of responsibility absent a showing of possible fraud or bad faith on the part of the contracting officials. 4 C.F.R. Sec. 21.3(m)(5); Nationwide Glove Co., Inc., 67 Comp.Gen. 151 (1987), 87-2 CPD Para. 624. Benson has not alleged or shown possible fraud or bad faith on the part of contracting officials.

The protest is dismissed.

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