B-156858, JUL. 19, 1965

B-156858, JUL. 19, 1965

TO THE PENETRYN SYSTEM, INC.:

FURTHER REFERENCE IS MADE TO YOUR RECENT CORRESPONDENCE PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. 38-606 65- 49, ISSUED ON APRIL 16, 1965, BY THE BASE PROCUREMENT OFFICE, MYRTLE BEACH AIR FORCE BASE, SOUTH CAROLINA.

UNDER THE TERMS OF THE INVITATION PROSPECTIVE BIDDERS WERE INVITED TO SUBMIT PRICES FOR REPAIRING THE SANITARY SEWAGE MAINS AT FORT FISHER AIR FORCE STATION, KURE BEACH, NORTH CAROLINA. INCLUDED IN THE SOLICITATION WERE THE FOLLOWING PROVISIONS:

STANDARD FORM 20--- INVITATION FOR BIDS

"9. NOTE: BID GUARANTY IN A FORM AUTHORIZED BY PARAGRAPH 4 OF STANDARD FORM 22 IN A PENAL SUM OF NOT LESS THAN 20 PERCENT OF THE BID PRICE WILL BE REQUIRED WITH EACH BID IF THE BID PRICE IS IN EXCESS OF $2,000. FAILURE OF THE BIDDER TO SUBMIT BID GUARANTY ON TIME IS CAUSE FOR REJECTION OF BIDS.'

STANDARD FORM 21--- BID FORM

"ENCLOSED IS A BID GUARANTEE, CONSISTING OF ----- IN THE AMOUNT OF ----- " (THIS PHRASE APPEARS JUST ABOVE THE SIGNATURE BLOCK.)

STANDARD FORM 22--- INSTRUCTIONS TO BIDDERS

"4. BID GUARANTEE. WHERE A BID GUARANTEE IS REQUIRED BY THE INVITATION FOR BIDS, FAILURE TO FURNISH A BID GUARANTEE IN THE PROPER FORM AND AMOUNT, BY THE TIME SET FOR OPENING OF BIDS, MAY BE CAUSE FOR REJECTION OF THE BID.

"A BID GUARANTEE SHALL BE IN THE FORM OF A FIRM COMMITMENT, SUCH AS A BID BOND, POSTAL MONEY ORDER, CERTIFIED CHECK, CASHIER'S CHECK, IRREVOCABLE LETTER OF CREDIT OR, IN ACCORDANCE WITH TREASURY DEPARTMENT REGULATIONS, CERTAIN BONDS OR NOTES OF THE UNITED STATES. * * *.'

BECAUSE OF YOUR COMPANY'S FAILURE TO SUBMIT WITH ITS BID THE REQUIRED BID GUARANTEE THE CONTRACTING OFFICER REJECTED THE BID IN ACCORDANCE WITH THE ABOVE REQUIREMENTS AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 404.2 (H).

IN YOUR LETTER OF MAY 25, 1965, ADDRESSED TO THE BASE PROCUREMENT OFFICE, A COPY OF WHICH WAS FORWARDED TO OUR OFFICE, YOU STATE:

"IN OUR OPINION, NONE OF THE DOCUMENTS FORWARDED TO US SPECIFICALLY REQUIRED THE PROSPECTIVE BIDDER TO SUBMIT BID SECURITY WITH HIS BID. OUR CONVERSATIONS, YOU HAVE MADE REFERENCE TO ,STANDARD FORM 20, PARAGRAPH NO. 9, AS FOLLOWS: "NOTE: BID GUARANTY IN A FORM AUTHORIZED BY * * *.'"

"PLEASE NOTE THAT THIS PARAGRAPH MAKES DIRECT REFERENCE TO "STANDARD FORM 22, PARAGRAPH 4" WHICH READS: "BID GUARANTEE. WHERE A BID GUARANTEE IS REQUIRED BY THE INVITATION FOR BIDS, FAILURE TO FURNISH A BID GUARANTEE IN THE PROPER FORM AND AMOUNT, BY THE TIME SET FOR OPENING OF BIDS, MAY BE CAUSE FOR REJECTION OF THE BID.'"

WE ARE UNABLE TO AGREE THAT BIDDERS WERE NOT ADEQUATELY APPRISED OF THE FACT THAT A BID GUARANTEE WAS REQUIRED. PARAGRAPH 4, STANDARD FORM 22, ABOVE-QUOTED, INFORMS BIDDERS THAT THEY SHOULD LOOK TO THE INVITATION FOR BIDS (STANDARD FORM 20) TO DETERMINE IF A BID GUARANTEE IS REQUIRED. THIS IS NECESSARILY SO SINCE STANDARD FORM 22 (INSTRUCTIONS TO BIDDERS) IS A GENERAL FORM, WHEREAS THE INVITATION FOR BIDS (STANDARD FORM 20) SETS FORTH THE PARTICULAR WORK FOR WHICH BIDS ARE REQUESTED AND THE SPECIFIC TERMS AND CONDITIONS WITH RESPECT THERETO. WE THINK THAT PARAGRAPH 9 OF THE INVITATION FOR BIDS (STANDARD FORM 20) CLEARLY PROVIDES THAT A BID GUARANTEE IS REQUIRED IF THE BID PRICE IS IN EXCESS OF $2,000 AND THAT ATTENTION IS DIRECTED TO PARAGRAPH 4 OF STANDARD FORM 22 ONLY TO ACQUAINT BIDDERS WITH ACCEPTABLE FORMS OR TYPES OF BID GUARANTEES.

WHILE WAIVER OF A BID GUARANTEE IS ALLOWABLE IN CERTAIN PRESCRIBED SITUATIONS, WE KNOW OF NO AUTHORITY WHICH WOULD HAVE ALLOWED THE CONTRACTING OFFICER TO WAIVE THE BID SECURITY REQUIREMENT IN THIS CASE. SEE ASPR SECTION 10-102.5. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID AS BEING NONRESPONSIVE TO THE INVITATION AND, THEREFORE, YOUR PROTEST MUST BE DENIED.