B-243100, May 22, 1991, 91-1 CPD 500

B-243100: May 22, 1991

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Where bid is below $25. Is untimely where filed after bid opening. 000 would have to furnish security to guarantee performance. Which was for all three items and exceeded $25. The protester essentially argues that the solicitation provisions requiring bid bonds are improper. 000 as the threshold for submission of a bid bond is clearly ambiguous. Since the agency's actual intention is to require bonds for bids. The protester argues that the agency is unreasonable and arbitrary in not requiring bidders that submit bids for amounts less than $25. Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening must be filed prior to bid opening. The protester's argument that the solicitation should have required all bidders to submit security for their bids is clearly untimely since his protest was filed 4 days after bid opening.

B-243100, May 22, 1991, 91-1 CPD 500

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Protest against agency failure to require bid bond, where bid is below $25,000, is untimely where filed after bid opening.

Attorneys

Stephen D. Ligon-Bruno:

Stephen D. Ligon-Bruno protests the award of a contract under invitation for bids (IFB) No. R6-21-91-18, issued by the Forest Service, U.S. Department of Agriculture, for tree-trimming services at the Republic Ranger District, Colville National Forest, in the State of Washington. The protester argues that the agency arbitrarily chose a threshold of $25,000 for requiring the submission of a bid bond.

We dismiss the protest.

On January 17, 1991, the agency issued the IFB as a 100-percent small business set-aside for a firm, fixed-price contract for tree trimming services in three areas of the forest, bid items D4(1)-(3), beginning on May 13, with periods of performance of up to 63 days. The solicitation provided for multiple awards, allowing bidders to qualify their bids to limit the total quantities of work for which they might be obligated. The solicitation also allowed the submission of "all or none" bids.

The solicitation contained a clause notifying potential bidders that contractors that received awards in excess of $25,000 would have to furnish security to guarantee performance, in the amount of 20 percent of the total contract price. The solicitation also contained a Notice of Required Bid Security clause, requiring that "If a contract exceeds $25,000, each bidder must submit a bid guarantee in the amount of 20 percent of the total bid price ..."

The agency opened bids on February 21, revealing that American Resource Analysis Improvement Co. had submitted the lowest bid for the only item upon which it had submitted a bid, a price of $7,611 for item No. D4(3). The protester had submitted the second lowest bid for item No. D4(3) at $12,642, with a certified check as bid security covering its bid, which was for all three items and exceeded $25,000. The protester learned that the agency would not require American Resource Analysis to provide either bid security or a performance bond, since its bid for only the one item did not exceed $25,000. /1/ This protest followed.

The protester essentially argues that the solicitation provisions requiring bid bonds are improper. He argues first that the reference, in the Notice of Required Bid Security clause, to a contract exceeding $25,000 as the threshold for submission of a bid bond is clearly ambiguous, since the agency's actual intention is to require bonds for bids, not "contracts." The protester argues that the agency is unreasonable and arbitrary in not requiring bidders that submit bids for amounts less than $25,000 to provide bid security.

Under our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(1) (1991), protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening must be filed prior to bid opening. The protester's argument that the solicitation should have required all bidders to submit security for their bids is clearly untimely since his protest was filed 4 days after bid opening. Further, even if, as the protester argues, one might read the Notice of Bid Security clause as requiring bid bonds where the ultimate contract price exceeds $25,000, or as requiring bid bonds where a total bid for all items exceeds $25,000, the solicitation could still not be read to require American Resource Analysis to provide bid security, where the proposed awardee bid on one item alone and that bid was under $25,000.

The protest is dismissed. The protester is not in line for award of any other item.