B-246357, Feb 7, 1992
Highlights
DIGEST: Where bid is submitted in the name of one person. Is accompanied by bid bond which identifies that person and also another individual as principal. The bond is materially defective. Because the surety's obligation under the bond is unclear. GSA determined that New Solid's bid was nonresponsive because there was a discrepancy between the legal entity shown on the bid and the legal entity shown on the bid bond. The solicitation was issued on July 31. New Solid was the second low bidder. The low bidder was found nonresponsive and its bid was rejected. The bidder was identified as "Eugene E. Owner" and the bid was signed by Eugene E. " and was signed by Eugene E. GSA determined that the bid bond was defective because the principal shown on the bid bond differed from the bidder named in the bid.
B-246357, Feb 7, 1992
DIGEST: Where bid is submitted in the name of one person, but is accompanied by bid bond which identifies that person and also another individual as principal, the bond is materially defective, requiring rejection of the bid as nonresponsive, because the surety's obligation under the bond is unclear.
Attorneys
New Solid, Ltd:
New Solid, Ltd. protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. GS-07P-91JWC-0121, issued by the General Services Administration (GSA) for custodial and related services at the Byron G. Rogers Federal Building in Denver, Colorado. GSA determined that New Solid's bid was nonresponsive because there was a discrepancy between the legal entity shown on the bid and the legal entity shown on the bid bond.
We dismiss the protest.
The solicitation was issued on July 31, 1991. Of the six bids received by the September 11 bid opening, New Solid was the second low bidder. The low bidder was found nonresponsive and its bid was rejected, making New Solid the apparent low bidder. In the bid form, the bidder was identified as "Eugene E. Harmon, owner" and the bid was signed by Eugene E. Harmon. With its bid, New Solid submitted a bid bond that identified the principal on the bond as "Eugene E. and Ingride Harmon," and was signed by Eugene E. Harmon. GSA determined that the bid bond was defective because the principal shown on the bid bond differed from the bidder named in the bid. This protest followed.
New Solid contends that its bid is responsive because the bid bond does not name a principal different from the nominal bidder, but that it simply adds a name to that of the nominal bidder; as a result, the government's interest is allegedly protected. We do not agree.
Bid bond requirements are a material part of the IFB, and a contracting officer cannot waive a failure to comply with such provision. Design For Health, Inc., 69 Comp.Gen. 712 (1990), 90-2 CPD Para. 213. The sufficiency of a bid bond depends on whether the surety is clearly bound by its terms; when the liability is not clear, the bond is defective. This rule is prompted by the rule of suretyship that no one incurs a liability to pay the debts of another unless he expressly agrees to be bound. G&C Enters., Inc., B-233537, Feb. 15, 1989, 89-1 CPD Para. 163. Moreover, a surety under a bond in the name of more than one principal is not liable for the default of one of them. A.D. Roe Co., Inc., 54 Comp.Gen. 271 (1974), 74-2 CPD Para. 194. For this reason, the principal listed on the bid bond must be the same as the nominal bidder. Mount Diablo Corp., Inc., B-228193, Nov. 10, 1957, 87-2 CPD 475.
Therefore, the fact that the protester allegedly only intended to add the name of another individual to the bid bond without qualifying its obligation and liabilities is irrelevant. See Opine Constr., B-218627, June 5, 1985, 85-1 CPD Para. 645; Clyde McHenry, Inc., B-224169, Sept. 25, 1986, 86-2 CPD Para. 352; JDL Constr., Inc., B-216733, Mar. 4, 1985, 85-1 CPD Para. 268.
Accordingly, the protest is dismissed.