B-174085, NOV 22, 1971

B-174085, NOV 22, 1971

BID PROTEST - BID RESPONSIVENESS - BID GUARANTEE DECISION DENYING PROTEST BY LOW BIDDER AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE ARMY ENGINEER DISTRICT, SACRAMENTO, CALIF. FOR CONSTRUCTION OF A PRINTING PLANT AT FORT HUACHUCA, ARIZ. WHERE THE INVITATION REQUIRED BID GUARANTEES IN THE FORM OF FIRM COMMITMENTS OF 20% OF THE BID PRICE FOR 60 DAYS, PROTESTANT'S GUARANTEE OF ONLY $3,000 FOR 15 DAYS IS NOT RESPONSIVE TO THE IFB. A BID BOND SUBMITTED FOR LESS THAN THE REQUIRED AMOUNT (HERE $11,454.72) DUE TO A PURPORTED CLERICAL ERROR BY THE SURETY IS A MATERIAL DEVIATION WHICH CANNOT BE WAIVED. SEE 39 COMP. GEN. 827 (1960) AND ASPR 10-102.5.

TO MR. CHUCK KING:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 3, 1971, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION NO. DACA05-72-B-0007, ISSUED BY U.S. ARMY ENGINEER DISTRICT, SACRAMENTO, CALIFORNIA, FOR THE CONSTRUCTION OF AN ADDITION TO A PRINTING PLANT AT FORT HUACHUCA, ARIZONA.

BIDS WERE OPENED AUGUST 26, 1971, AND YOUR COMPANY WAS THE LOW BIDDER. HOWEVER, YOUR BID WAS REJECTED BECAUSE IT DID NOT COMPLY WITH THE REQUIREMENTS OF THE INVITATION REGARDING A BID GUARANTEE.

THE INVITATION (STANDARD FORM 20, JANUARY 1961 ED.) REQUIRED THE FOLLOWING:

"EACH BIDDER SHALL SUBMIT WITH HIS BID A BID BOND (STANDARD FORM 24) WITH GOOD AND SUFFICIENT SURETY OR SURETIES ACCEPTABLE TO THE GOVERNMENT, OR OTHER SECURITY AS PROVIDED IN PARAGRAPH 4 OF INSTRUCTIONS TO BIDDERS (STANDARD FORM 22) IN THE FORM OF TWENTY PERCENT (20%) OF THE BID PRICE OR $3,000,000 WHICHEVER IS LESSER. THE BID BOND PENALTY MAY BE EXPRESSED IN TERMS OF A PERCENTAGE OF THE BID PRICE OR MAY BE EXPRESSED IN DOLLARS AND CENTS."

PARAGRAPH 4 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22, OCTOBER 1969 ED.) WARNED THAT FAILURE TO FURNISH A PROPER BID GUARANTEE BY THE TIME SET FOR THE OPENING OF BIDS, WOULD BE A BASIS FOR THE REJECTION OF A BID.

THE LETTER FROM THE SECURITY PACIFIC NATIONAL BANK, LAWNDALE, CALIFORNIA, DATED AUGUST 23, 1971, SUBMITTED AS A BID GUARANTEE WITH YOUR BID OF $57,273.60, STATED:

"WE ARE WRITING THIS LETTER AS SURETY OR GUARANTY THAT CHUCK KING, GENERAL CONTRACTOR, IS GOOD FOR $3,000.00. OUR GUARANTY IS FOR 15 DAYS AND IS SUPPORTED BY CASH COLLATERAL HELD BY US IN THE NAME OF CHARLES F. KING."

WE ARE OF THE OPINION THAT THIS LETTER FAILED TO COMPLY WITH THE REQUIREMENT QUOTED ABOVE, BECAUSE THE BID GUARANTEE SHOULD HAVE BEEN IN THE AMOUNT OF $11,454.72, WHICH REPRESENTS 20 PERCENT OF YOUR BID. YOUR BID GUARANTEE OF ONLY $3,000.00 WAS NOT RESPONSIVE TO THE REQUIREMENT SET FORTH IN THE IFB.

YOU CONTEND THAT THIS DEFICIENCY IN THE AMOUNT OF YOUR BID GUARANTEE WAS DUE TO A MISUNDERSTANDING BETWEEN THE BANK AND YOURSELF. IN THIS REGARD WE HAVE HELD IN 39 COMP. GEN. 827 (1960) THAT WHERE A BIDDER SUBMITS A BID BOND IN AN AMOUNT LESS THAN REQUIRED BY THE INVITATION DUE TO A PURPORTED CLERICAL ERROR BY THE SURETY, AND NOT BECAUSE OF THE BIDDER'S ABILITY TO QUALIFY FOR SUCH BOND, THE FAILURE TO COMPLY WITH THE BOND REQUIREMENT IS A MATERIAL DEVIATION WHICH CANNOT BE WAIVED.

IN ADDITION, YOUR ATTENTION IS INVITED TO PARAGRAPH 4 OF THE INSTRUCTIONS TO BIDDERS WHEREIN IT IS REQUIRED THAT ALL BID GUARANTEES SHOULD BE IN THE FORM OF A "FIRM COMMITMENT" TO THE GOVERNMENT THAT THE GUARANTEE SHALL BE AVAILABLE FOR 60 DAYS (UNLESS OTHERWISE INDICATED) TO OFFSET THE COST OF PROCURING THE WORK WHICH EXCEEDS THE AMOUNT OF THE SUCCESSFUL BID, IN THE EVENT THE SUCCESSFUL BIDDER FAILS TO GO FORWARD WITH THE FAITHFUL PERFORMANCE OF THE CONTRACT.

THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION 10-102.5 CONCERNS THE FAILURE TO SUBMIT A PROPER BID GUARANTEE AND PROVIDES IN PERTINENT PART AS FOLLOWS:

"WHERE A SOLICITATION REQUIRES THAT BIDS BE SUPPORTED BY A BID GUARANTEE, NONCOMPLIANCE WITH SUCH REQUIREMENT WILL REQUIRE REJECTION OF THE *** ."

THE SECTION GOES ON TO PROVIDE EXCEPTIONS TO THE RULE REQUIRING REJECTION; HOWEVER, THE IMMEDIATE SITUATION DOES NOT COME WITHIN ANY OF THE ENUMERATED EXCEPTIONS.

FOR THE FOREGOING REASONS WE FIND NO LEGAL BASIS FOR DISTURBING THE AWARD MADE TO THE SECOND LOW BIDDER. ACCORDINGLY, YOUR PROTEST IS DENIED.