B-182102, JAN 10, 1975

B-182102, JAN 10, 1975

1. WHERE ONE BID WAS RECEIVED TIMELY, ANOTHER SHORTLY AFTER BID OPENING AND THIRD MIGHT HAVE BEEN SUBMITTED TIMELY IF BIDDER ACTED PROMPTLY TO OBTAIN BID BOND, MINIMUM STANDARD OF ADEQUATE COMPETITION CANNOT BE SAID NOT TO HAVE BEEN MET, SINCE DETERMINATION OF ADEQUATE COMPETITION IS SUBJECTIVE DETERMINATION TO WHICH REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION MUST ADHERE. 2. ALTHOUGH SOLICITATION REQUIRED SUBMISSION OF BID BOND WITH BID AND REJECTION OF BID FOR FAILING TO COMPLY, BOND OMISSION FROM ONLY BID RECEIVED PROPERLY WAS WAIVED, SINCE DISTRICT OF COLUMBIA MATERIAL MANAGEMENT MANUAL PUBLISHED IN DISTRICT OF COLUMBIA REGISTER PROVIDES EXCEPTION AND ALTHOUGH PROTESTERS MAY NOT HAVE HAD ACTUAL KNOWLEDGE OF DISTRICT OF COLUMBIA MATERIAL MANAGEMENT MANUAL, PROTESTERS WERE ON CONSTRUCTIVE NOTICE OF CONTENTS. 3. PROTEST AGAINST INCLUSION OF BID BOND REQUIREMENT IN IFB, RAISED AFTER TIME SET FOR BID OPENING, IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) WHICH REQUIRES THAT ISSUE BE RAISED PRIOR TO BID OPENING AND, THEREFORE, IS NOT PROPERLY FOR CONSIDERATION.

RECONSIDERATION OF DECISION IN MATTER OF JOHNSON AUTO PARTS:

BY LETTERS DATED OCTOBER 7, 1974, MESSRS. UNDERWOOD AND ALDRICH HAVE REQUESTED RECONSIDERATION OF OUR DECISION B-182102, SEPTEMBER 10, 1974, IN THE MATTER OF JOHNSON AUTO PARTS. THEIR REQUEST IS BASED UPON THE PREMISE THAT ADEQUATE COMPETITION WAS NOT OBTAINED UNDER THE INVITATION, THAT THE FAILURE OF JOHNSON AUTO PARTS TO INCLUDE A BID BOND WITH ITS BID REQUIRED REJECTION OF THE BID AND THAT THE INCLUSION OF A BID BOND REQUIREMENT WAS UNNECESSARY AND UNDULY RESTRICTIVE OF COMPETITION. ALTHOUGH AWARD OF A CONTRACT UNDER THE PROCUREMENT HAS BEEN MADE TO JOHNSON AUTO PARTS, IN LIGHT OF THIS REQUEST FOR RECONSIDERATION A NOTICE TO PROCEED UNDER THE SUBJECT CONTRACT IS BEING WITHHELD PENDING THE RESOLUTION OF THIS MATTER.

THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, DEPARTMENT OF GENERAL SERVICES, HAS INDICATED THAT INVITATIONS FOR THIS PROCUREMENT WERE SENT TO A NUMBER OF PROSPECTIVE BIDDERS KNOWN TO DEAL PRIMARILY IN JUNK AND ABANDONED VEHICLES, INCLUDING BOTH PROTESTERS. ALTHOUGH ONLY ONE BID WAS TIMELY SUBMITTED, IT WAS DETERMINED THAT COMPETITION WAS ADEQUATE. MOREOVER, DURING THE APPROXIMATELY 3 WEEKS BETWEEN THE ISSUANCE AND OPENING OF THE BIDS NO COMPLAINTS OR OBJECTIONS WERE RAISED BY ANY OF THE PARTIES TO THE EFFECT THAT THE BID BOND REQUIREMENT WAS RESTRICTIVE OF COMPETITION OR THAT MORE TIME WAS NECESSARY TO OBTAIN A BOND. ADDITIONALLY, AT THE CONFERENCE ON THIS MATTER HELD AT OUR OFFICE ON OCTOBER 17, 1974, MR. ALDRICH MENTIONED HE THOUGHT IT WAS EASY TO GET A BID BOND AND WAITED A WEEK OR SO AFTER THE ISSUANCE OF THE INVITATION BEFORE TRYING TO SECURE A BID BOND.

AS STATED ABOVE, THE PROCURING ACTIVITY, BEFORE MAKING AN AWARD, DETERMINED THAT THERE WAS ADEQUATE COMPETITION FOR THIS PROCUREMENT. OUR OPINION, WHETHER THE REQUIRED DEGREE OF COMPETITION HAS BEEN OBTAINED IN A PARTICULAR PROCUREMENT IS SUBSTANTIALLY A SUBJECTIVE DETERMINATION TO WHICH A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION MUST ADHERE. COMP. GEN. 382 (1970); B-177211, MARCH 9, 1973. IN THE INSTANT CASE, WHERE ONE BID WAS TIMELY RECEIVED, A SECOND RECEIVED SHORTLY AFTER THE TIME SET FOR BID OPENING, AND A THIRD COULD HAVE POSSIBLY BEEN SUBMITTED HAD THE BIDDER PROMPTLY SOUGHT TO OBTAIN A BID BOND, WE CANNOT SAY THAT THE MINIMUM STANDARD HAS NOT BEEN MET.

WITH REGARD TO THE ALLEGATION THAT THE FAILURE TO SUBMIT A BID BOND REQUIRES REJECTION OF THE BID, THE PROTESTERS POINT TO THE FOLLOWING LANGUAGE ON THE FIRST PAGE OF THE SOLICITATION:

"'BID GUARANTY DEPOSIT & PERFORMANCE BOND REQUIRED.'

A BID GUARANTY IS REQUIRED AND MADE A PART OF THIS INVITATION TO BID. FAILURE TO FURNISH A BID GUARANTY IN THE PROPER FORM AND AMOUNT AS SET FORTH IN THE ATTACHED FORMS P.O. 20 'BOND REQUIREMENT', AND P.O. 24 'BID BOND' WITH YOUR BID SHALL BE CAUSE FOR REJECTION OF THE BID."

HOWEVER, THE DISTRICT OF COLUMBIA MATERIAL MANAGEMENT MANUAL, PUBLISHED IN VOLUME 20, #23 BEGINNING AT PAGE 1095 OF THE DISTRICT OF COLUMBIA REGISTER (MAY 13, 1974), PROVIDES IN PART I, SECTION 2620.29(B)(2) AS FOLLOWS:

"WHERE A SOLICITATION REQUIRES THAT BIDS BE SUPPORTED BY A BID GUARANTEE, NONCOMPLIANCE WITH THE REQUIREMENTS WILL REQUIRE REJECTION OF THE BID EXCEPT THAT REJECTION IS NOT NORMALLY REQUIRED IN SITUATIONS WHERE ONLY ONE BID IS RECEIVED.

ALTHOUGH THE PROTESTERS MAY NOT HAVE HAD ACTUAL KNOWLEDGE OF THE DISTRICT OF COLUMBIA MATERIAL MANAGEMENT MANUAL, THEY WERE ON CONSTRUCTIVE NOTICE OF ITS CONTENTS. SEE WINSTON BROS. COMPANY V. UNITED STATES, 458 F.2D, 49, 53 (CT. CL. 1972). ACCORDINGLY, ALTHOUGH THE SOLICITATION REQUIRED THE SUBMISSION OF A BID BOND WITH ANY BID SUBMITTED AND THE REJECTION OF THE BID FOR FAILING TO FURNISH THE BOND, THE OMISSION IN THE JOHNSON AUTO PARTS BID PROPERLY WAS WAIVED IN ACCORDANCE WITH THE DISTRICT OF COLUMBIA MATERIAL MANAGEMENT MANUAL WHERE IT WAS THE ONLY BID RECEIVED.

AS CONCERNS THE ALLEGED RESTRICTIVENESS OF THE BID BOND REQUIREMENT, NO OBJECTION TO THIS REQUIREMENT WAS RAISED AT ANY TIME PRIOR TO THE OPENING OF THE BID SUBMITTED. UNDER OUR BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974), A PROTEST BASED UPON AN ALLEGED IMPROPRIETY IN A SOLICITATION WHICH IS APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING TO PROPERLY BE FOR CONSIDERATION BY OUR OFFICE. SINCE, IN THIS CASE, THIS ISSUE WAS NOT RAISED PRIOR TO AUGUST 23, 1974, THE DATE OF THE BID OPENING, IT IS UNTIMELY FILED AND WILL NOT BE CONSIDERED ON ITS MERITS.

ACCORDINGLY, OUR DECISION OF SEPTEMBER 10, 1974, IS SUSTAINED.