Protest of Bid Rejection as Nonresponsive

B-202266.2: Jun 23, 1981

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A firm protested the proposed award of a contract by the National Aeronautics and Space Administraton (NASA). The protester contended that its low bid was improperly rejected as nonresponsive for failure to submit a bid bond required by the invitation for bids (IFB). The IFB required that a bid bond accompany each bid submitted and warned that failure to furnish a bid guarantee in the proper form and amount could be the cause for rejection of a bid. The protester's low bid of $15,355 was lower than the NASA estimate of $25,666, but the contracting officer determined that the bid was nonresponsive since the protester failed to submit a bid bond. Subsequent to bid opening, a protest was filed with GAO, contending that a NASA procurement regulation does not require a bid bond for any bid price less than $25,000 in amount. The protester believed that, since the Miller Act as implemented by the NASA regulation does not require payment and bid bonds for construction contracts less than $25,000 in amount, the IFB bid bond requirement which is derived from the Miller Act was invalid and its bid was improperly rejected. A protest based on alleged improprieties in a solicitation which are apprarent on the face of the solicitation must be filed prior to bid opening. GAO held that this part of the protest was untimely and not for consideration. It found that NASA was correct in rejecting the bid as nonresponsive. A bid guarantee requirement is a material part of an IFB; therefore, a bid that does not comply with the requirement must be rejected as nonresponsive. Accordingly, the protest was dismissed in part and denied in part.