B-162016, JUL. 24, 1967

B-162016, JUL. 24, 1967

BIDS - BONDS - AMBIGUITY IN INVITATION DECISION TO STENOGRAPHIC REPORTING FIRM THAT AWARD TO LOW BIDDER WHO FURNISHED ONLY A BID BOND BUT NOT A CHECK WHICH WAS INADVERTENTLY REQUIRED BY INVITATION FOR REPORTING SERVICES FOR NATIONAL TRANSPORTATION SAFETY BOARD WAS PROPER. RECORD FURTHER SHOWS THAT PROTESTING BIDDER WAS ON NOTICE OF AMBIGUITY IN INVITATION.

TO WARD AND PAUL, INC.:

YOUR LETTER OF JUNE 26, 1967, TO THE DEPARTMENT OF TRANSPORTATION, PROTESTING THE AWARD OF A CONTRACT FOR REPORTING SERVICES TO CSA REPORTING COMPANY UNDER INVITATION FOR BIDS NO. 67-2, HAS BEEN REFERRED TO OUR OFFICE FOR DECISION.

IT APPEARS THAT BIDS WERE REQUESTED FOR FURNISHING REPORTING SERVICES TO THE NATIONAL TRANSPORTATION SAFETY BOARD FOR THE PERIOD JULY 1, 1967, THROUGH JUNE 30, 1968. PARAGRAPH 27 OF THE INVITATION PROVIDED AS FOLLOWS:

"ALL BIDS MUST BE ACCOMPANIED BY A BID BOND ISSUED BY ANY SURETY COMPANY AUTHORIZED BY THE SECRETARY OF THE TREASURY TO DO BUSINESS, AND A CERTIFIED CHECK, A CASHIER'S CHECK, OR UNITED STATES GOVERNMENT BONDS IN THE SUM OF ONE THOUSAND DOLLARS ($1,000), GUARANTEEING THAT IN THE EVENT OF THE ACCEPTANCE OF THIS BID THE BIDDER WILL EXECUTE THE CONTRACT AND FURNISH A PERFORMANCE BOND AS HEREINAFTER PROVIDED.'

CSA REPORTING COMPANY WAS THE LOW BIDDER AND WAS AWARDED THE CONTRACT.

YOU STATE THAT THE BID OF CSA WAS NOT ACCOMPANIED BY BOTH A BID BOND AND A CHECK OR GOVERNMENT BOND AS REQUIRED BY THE INVITATION; THAT THE BID GUARANTEE REQUIREMENT OF THE INVITATION WAS CLEAR AND UNAMBIGUOUS; AND THAT, THEREFORE, THE BID OF CSA SHOULD HAVE BEEN REJECTED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 1-10.103-4 OF THE FEDERAL PROCUREMENT REGULATIONS.

THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE WORD "AND," UNDERSCORED IN PARAGRAPH 27 QUOTED ABOVE, WAS IN ERROR AND SHOULD HAVE READ "OR" SINCE IT WAS INTENDED THAT ALL BIDS MUST BE ACCOMPANIED BY A BID BOND OR CHECK OR GOVERNMENT BONDS BUT NOT BOTH. IN ADDITION, THE ADMINISTRATIVE AGENCY REPORTS THAT PARAGRAPH 27 WAS COPIED FROM, AND IS IDENTICAL TO, THE BID GUARANTEE PARAGRAPH USED BY THE CIVIL AERONAUTICS BOARD (CAB) IN ITS INVITATION FOR BIDS FOR FURNISHING REPORTING SERVICES TO THAT AGENCY FOR THE FISCAL YEARS 1964 THROUGH 1967. IT ALSO REPORTS THAT THE RECORDS OF CAB DISCLOSE THAT ALL BIDS IN RESPONSE TO THE CAB INVITATION TO BID, INCLUDING BIDS SUBMITTED EACH YEAR BY YOU, WERE ACCOMPANIED BY A BID BOND ONLY. IT IS FURTHER REPORTED THAT EACH YEAR THE CONTRACT WAS AWARDED TO A BIDDER WHOSE BID WAS ACCOMPANIED BY A BID BOND ONLY AND THAT NO PROTEST WAS MADE BY ANY OF THE UNSUCCESSFUL BIDDERS, INCLUDING YOUR FIRM, WHICH WAS REPRESENTED AT THE TIME OF OPENING OF THE BIDS EACH YEAR. FURTHERMORE, WE ARE ADVISED THAT ON JULY 15, 1966, THE ERROR WAS CALLED TO THE ATTENTION OF THE CAB BY A BID ACCOMPANIED BY BOTH A BID BOND AND A CHECK. AT THAT TIME A REPRESENTATIVE OF YOUR FIRM WAS PRESENT AT THE BID OPENING AND WITNESSED THE ACKNOWLEDGMENT OF THE ERROR BY THE CAB AND THE IMMEDIATE RETURN OF THE CHECK TO THE BIDDER.

IN VIEW OF THE ADMINISTRATIVE REPORT WE THINK THAT THE ONLY REASONABLE INTERPRETATION TO BE GIVEN PARAGRAPH 27 IS THAT IT REQUIRES THAT A BID BOND OR A CHECK OR GOVERNMENT BONDS BE FURNISHED. WE THINK THAT THIS CONCLUSION IS PARTICULARLY TRUE INSOFAR AS YOUR FIRM IS CONCERNED SINCE YOUR REPRESENTATIVE WAS PLACED ON NOTICE AT THE TIME THE PRIOR YEAR CONTRACT WAS EXECUTED THAT ONLY A BOND OR A CHECK SHOULD BE FURNISHED IN ORDER TO MEET THE SPECIFICATION REQUIREMENTS. IN VIEW OF THE FACTS REPORTED, WE THINK THAT YOU WERE ON NOTICE OF THE ERROR IN THE WORDING OF PARAGRAPH 27 AND THAT YOU ARE NOW ATTEMPTING TO OBTAIN A CONTRACT BY TAKING ADVANTAGE OF THE GOVERNMENT'S ERROR. FURTHERMORE, IN OUR DECISION OF APRIL 20, 1965, B-156271, WE STATED THAT AN AWARD OF A CONTRACT WAS VALID WHERE THROUGH ADMINISTRATIVE ERROR THE AWARD WAS MADE TO A BIDDER WHICH FAILED TO SUBMIT A BID BOND WITH ITS BID.

ACCORDINGLY, WE SEE NO LEGAL OR PROPER BASIS FOR CANCELING THE CONTRACT AWARDED AND YOUR PROTEST MUST THEREFORE BE DENIED.