B-177890, APR 4, 1973

B-177890, APR 4, 1973

BID PROTEST - DEFICIENT BID BOND - RESPONSIVENESS DECISION DENYING THE PROTEST OF CURTISS-MANES CONSTRUCTION CO., INC. AGAINST REJECTION OF ITS LOW BID UNDER AN IFB ISSUED BY THE CORPS OF ENGINEERS FOR THE CONSTRUCTION OF A STORAGE AND REPAIR SHOP BUILDING AT GASCONADE, MO. SINCE THE PROTESTANT IDENTIFIED ITSELF DIFFERENTLY ON THE BID BOND AND THE BID FORM, THE SURETY WOULD NOT BE BOUND SHOULD THE PROTESTANT FAIL TO EXECUTE THE CONTRACT UPON ACCEPTANCE OF ITS BID. SINCE THE BID BOND WAS THEREFORE INSUFFICIENT BECAUSE IT DID NOT FULLY PROTECT THE GOVERNMENT, SEE 52 COMP. GEN. , B-176138, OCTOBER 19, 1972, PROTESTANT'S BID MUST BE REJECTED AS NONRESPONSIVE. 38 COMP. GEN. 532 (1959).

TO KAY & QUIGLEY:

WE REFER TO YOUR LETTER DATED JANUARY 25, 1973, WRITTEN ON BEHALF OF THE CURTISS-MANES CONSTRUCTION CO., INC. (CURTISS-MANES), IN WHICH YOU PROTEST REJECTION OF CURTISS-MANES' LOW BID AND THE PROPOSED AWARD OF A CONTRACT TO ANY OTHER BIDDER FOR CONSTRUCTION OF A STORAGE AND REPAIR SHOP BUILDING, GASCONADE HARBOR FACILITIES, GASCONADE, MISSOURI, UNDER INVITATION FOR BIDS (IFB) NO. DACW41-73-B-0043.

FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE APPARENT LOW BIDDER AT THE TIME OF BID OPENING WAS CURTISS-MANES.

HOWEVER, THE RECORD EVIDENCES THAT THE LOW BIDDER IDENTIFIED ITSELF DIFFERENTLY ON THE BID FORM AND THE BID BOND. ON THE FACE OF THE BID FORM (STANDARD FORM 21), AS WELL AS ON THE REVERSE THEREOF, THE BIDDER'S NAME IS STATED AS CURTISS-MANES CONST. CO., INC., AND IS SIGNED BY JOE CURTISS, PRESIDENT. ON THE PAGE ENTITLED REPRESENTATIONS AND CERTIFICATIONS (STANDARD FORM 19-B), SUBMITTED WITH THE BID, THE SAME NAME IS LISTED FOR THE BIDDER; AND IN PARAGRAPH 3 THEREOF, THE BIDDER DESCRIBED ITSELF AS A CORPORATION, INCORPORATED IN THE STATE OF MISSOURI. THERE WAS A SPACE ON STANDARD FORM 19-B FOR THE BIDDER TO HAVE IDENTIFIED ITSELF AS A JOINT VENTURE, BUT THAT SPACE WAS LEFT BLANK.

THE REQUIRED BID BOND ACCOMPANYING THE BID LISTS THE PRINCIPAL AT THE TOP OF THE BOND AS FOLLOWS:

CURTISS-MANES CONSTRUCTION CO., INC.

JOE CURTISS AND R. A. MANES, A JOINT VENTURE

BLOCK 1 OF THE SIGNATURE BLOCK ON THE BID BOND, UNDER THE HEADING "PRINCIPAL," IS SIGNED BY JOE CURTISS, PRESIDENT, CURTISS-MANES CONSTRUCTION CO., INC., AND BLOCK 2 IS SIGNED BY R. A. MANES AND BY JOE CURTISS OVER THE TITLE OF JOINT VENTURE. ADDITIONALLY, THE WORDS "JOINT VENTURE" WERE CHECKED IN A SPACE ENTITLED TYPE OF ORGANIZATION APPEARING IN THE UPPER RIGHT-HAND CORNER OF THE FACE OF THE BID BOND. THE CORPS OF ENGINEERS CONCLUDED THAT THE BID WAS NONRESPONSIVE.

YOU CONTEND, HOWEVER, THAT IT IS APPARENT FROM THE FACE OF THE BOND THAT THE SURETY IS BOUND TO THE NOMINAL BIDDER AND, IN ADDITION, JOE CURTISS AND R. A. MANES, WHO ARE THE SOLE STOCKHOLDERS AND MANAGING OFFICERS OF THE BIDDER, ARE LIKEWISE PERSONALLY BOUND. FURTHER, YOU ASSERT THAT ALTHOUGH BOTH MR. CURTISS AND MR. MANES APPEAR ON THE BOND AS PRINCIPALS, THEY ARE IN FACT AND IN LAW ADDITIONAL SURETIES AND THEIR NAMES AND SIGNATURES ON THE BOND ONLY HAVE THE EFFECT OF ADDING THEIR PERSONAL RESPONSIBILITIES TO THE OBLIGATION OF THE CORPORATE BIDDER TO PERFORM THE CONTRACT. WE DO NOT AGREE, HOWEVER, THAT THE SURETY WOULD BE BOUND AS REQUIRED.

A BID BOND REQUIREMENT IS A MATERIAL PART OF THE INVITATION AND NONCOMPLIANCE RENDERS A BID NONRESPONSIVE. 38 COMP. GEN. 532 (1959). BID BOND WHICH NAMES A PRINCIPAL DIFFERENT FROM THE NOMINAL BIDDER IS DEFICIENT AND THE DEFECT MAY NOT BE WAIVED AS A MINOR INFORMALITY. 170361, JULY 27, 1970. THIS RULE IS PROMPTED BY THE RULE OF SURETYSHIP THAT NO ONE INCURS A LIABILITY TO PAY THE DEBTS OR PERFORM A DUTY OF ANOTHER UNLESS HE EXPRESSLY AGREES TO BE BOUND.

THE DETERMINATION OF THE SUFFICIENCY OF A BID BOND RELATES TO WHETHER THE GOVERNMENT WILL RECEIVE THE FULL AND COMPLETE PROTECTION IT CONTEMPLATED IN THE EVENT OF THE FAILURE OF A BIDDER TO EXECUTE THE REQUIRED CONTRACTUAL DOCUMENTS. 52 COMP. GEN. 223 (B-176138, OCTOBER 19, 1972).

IN THE INSTANT CASE, IT APPEARS TO US THAT THE SURETY'S LIABILITY UNDER THE BOND IS CONTINGENT UPON THE BID BEING IN THE NAME OF BOTH ENTITIES LISTED ON THE BID BOND, I.E., CURTISS-MANES CONSTRUCTION CO., INC., AND JOE CURTISS AND R. A. MANES, A JOINT VENTURE. THEREFORE, WE ARE UNABLE TO CONCLUDE THAT THE SURETY WOULD BE BOUND IN THE EVENT OF A FAILURE BY THE BIDDER IN QUESTION TO EXECUTE THE CONTRACT UPON ACCEPTANCE OF ITS BID.

ACCORDINGLY, IT IS OUR VIEW THAT THE CORPS OF ENGINEERS CORRECTLY DETERMINED YOUR BID TO BE NONRESPONSIVE.