B-165410, NOV. 4, 1968

B-165410, NOV. 4, 1968

TO NATIONWIDE BUILDING MAINTENANCE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 9, 1968, PROTESTING AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. N62477 -69-C-0393.

THE SUBJECT INVITATION WAS ISSUED ON AUGUST 29, 1968, BY THE U.S. NAVAL WEAPONS LABORATORY, DAHLGREN, VIRGINIA, CALLING FOR BIDS FOR JANITORIAL SERVICES FOR EXISTING BUILDINGS AT DAHLGREN FOR THE PERIOD BEGINNING OCTOBER 1, 1968, AND CONTINUING THROUGH SEPTEMBER 30, 1969, WITH THE GOVERNMENT BEING GIVEN AN OPTION TO RENEW THE CONTRACT FOR AN ADDITIONAL ONE YEAR PERIOD.

OF THE SIX BIDS RECEIVED BEFORE THE BID OPENING DATE OF SEPTEMBER 25, 1968, THE FOUR LOWEST BIDDERS, INCLUDING YOUR COMPANY, FAILED TO SUBMIT BID BONDS WITH THEIR BIDS AS WAS REQUIRED BY PARAGRAPH 8 OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS.' ACCORDINGLY, THESE FOUR BIDS WERE DETERMINED TO BE NON-RESPONSIVE AND ON OCTOBER 18, 1968, THE CONTRACT WAS AWARDED TO THE LOW CONFORMING BIDDER, ADVANCE BUILDING MAINTENANCE, COMPANY, IN THE AMOUNT OF $129,948.

ALTHOUGH YOU ADMIT OVERLOOKING THE REQUIREMENT OF SENDING A BID BOND WITH YOUR BID, YOU FEEL THAT THE GOVERNMENT IS SPENDING AN EXCESSIVE AMOUNT TO COVER THE CONTRACT ON A VERY MINOR TECHNICALITY, AND BY SO DOING IS NOT ACTING IN THE BEST INTEREST OF THE GOVERNMENT OR THE TAXPAYERS.

BEGINNING WITH OUR DECISION RENDERED TO THE SECRETARY OF THE ARMY ON FEBRUARY 5, 1959, 39 COMP. GEN. 532, THE DECISIONS OF OUR OFFICE CONCERNING REQUIRED BID GUARANTEES ARE TO THE EFFECT THAT A BID GUARANTEE REQUIREMENT IN AN INVITATION FOR BIDS IS A MATERIAL PART OF THE INVITATION, AND THAT THE PROCURING AGENCY CANNOT, AS A GENERAL RULE, WAIVE A FAILURE TO COMPLY WITH THE REQUIREMENT BUT MUST REJECT AS NONRESPONSIVE A BID NOT ACCOMPANIED BY A BID GUARANTEE, OR ONE WHICH IS ACCOMPANIED BY AN INSUFFICIENT BID GUARANTEE. THE BASIS FOR THIS RULE WAS STATED IN THAT DECISION AS FOLLOWS:

"* * * PERMITTING WAIVER OF A BID BOND REQUIREMENT STATED IN AN INVITATION FOR BIDS WOULD HAVE A TENDENCY TO COMPROMISE THE INTEGRITY OF THE COMPETITIVE BID SYSTEM BY (1) MAKING IT POSSIBLE FOR A BIDDER TO DECIDE AFTER OPENING WHETHER OR NOT TO TRY TO HAVE HIS BID REJECTED, (2) CAUSING UNDUE DELAY IN EFFECTING PROCUREMENTS, AND (3) CREATING, BY THE NECESSARY SUBJECTIVE DETERMINATIONS BY DIFFERENT CONTRACTING OFFICERS, INCONSISTENCIES IN THE TREATMENT OF BIDDERS. * * * THIS RESULT WOULD HARDLY BE SAID TO SERVE THE BEST INTERESTS OF THE UNITED STATES * * *.'

IT HAS BEEN CONSISTENTLY HELD BY OUR OFFICE THAT UNDER THE COMPETITIVE BID PROCEDURE A BID TO BE CONSIDERED FOR AWARD MUST COMPLY WITH THE REQUIREMENTS OF THE INVITATION AT THE TIME OF BID OPENING. A BIDDER MAY NOT BE PERMITTED TO CHANGE OR MODIFY ITS BID AFTER THE OPENING AND IT DOES NOT MATTER WHETHER THE FAILURE TO COMPLY WAS DUE TO INADVERTENCE, MISTAKE OR OTHERWISE. 38 COMP. GEN. 819, 42 COMP. GEN. 726. ALSO, AS HAS OFTEN BEEN STATED, THE MAINTENANCE OF THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS INFINITELY MORE IN THE PUBLIC INTEREST THAN A FINANCIAL SAVING IN AN INDIVIDUAL CASE. 17 COMP. GEN. 554.

AS STATED IN 39 COMP. GEN. 827, AT PAGE 829, THE RULE ANNOUNCED IN 38 COMP. GEN. 532 WAS ADOPTED ONLY AFTER THOROUGH AND CAREFUL CONSIDERATION, AND GAVE EFFECT TO LONG ACCUMULATED AND REPEATED REPRESENTATIONS BY THE PROCURING AGENCIES THAT THE PREVIOUSLY REQUIRED CONSIDERATION OF THE MERITS OF EXCUSES OFFERED FOR DEFECTIVE OR OMITTED BID BONDS PRESENTED INTOLERABLE ADMINISTRATIVE BURDENS. FURTHERMORE, THE FACT MAY NOT BE OVERLOOKED THAT WAIVER OF THE BID BOND REQUIREMENT IN THE INSTANT CASE WOULD BE IN DIRECT VIOLATION OF THE APPLICABLE REGULATIONS, WHICH HAVE THE FORCE AND EFFECT OF LAW.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2 (H) PROVIDES AS FOLLOWS:

"WHERE A BID GUARANTEE IS REQUIRED AND A BIDDER FAILS TO FURNISH IT IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION FOR BIDS, THE BID SHALL BE REJECTED, EXCEPT AS OTHERWISE PROVIDED IN 10-102.5;,

WHILE ASPR 10-102.5 PROVIDES SIX EXCEPTIONS TO THE GENERAL RULE, STATED ABOVE, NONE OF THE ENUMERATED EXCEPTIONS ARE APPLICABLE TO THIS CASE.

FOR THE FOREGOING REASONS THE AWARD AS MADE WAS PROPER AND YOUR PROTEST IS DENIED.