B-180418, APR 11, 1974
Highlights
REJECTION OF BID AS NONRESPONSIVE IS PROPER AS THE RIGHTS AND OBLIGATIONS OF THE PARTIES ARE DIFFERENT UNDER THE TWO TYPES OF BONDS. STANDARD FORM 24 IS THE BOND FORM PRESCRIBED FOR USE IN PROCUREMENT ACTIONS. THE BOND FORMS REQUIRED FOR GOVERNMENT SALE ACTIONS ARE EITHER S.F. 150. WHILE OUR OFFICE HAS STATED IN THE PAST THAT THE FAILURE TO USE A DESIGNATED BID BOND FORM IS NOT SUFFICIENT TO RENDER A BID NONRESPONSIVE. AS WE ENUNCIATED IN THE PREVIOUSLY CITED CASE: "THE FURTHER FACT THAT YOUR SURETY'S BID FORM MAY HAVE BEEN REGARDED AS ACCEPTABLE IN THE PAST DOES NOT. THE PROTEST IS DENIED.
B-180418, APR 11, 1974
WHERE BIDDER SUBMITS S.F. 24 BID BOND UNDER SURPLUS SALE WHICH REQUIRED SUBMISSION OF S.F. 150 OR 151 BID BOND, REJECTION OF BID AS NONRESPONSIVE IS PROPER AS THE RIGHTS AND OBLIGATIONS OF THE PARTIES ARE DIFFERENT UNDER THE TWO TYPES OF BONDS, NOTWITHSTANDING THE FACT THAT THE SAME DISPOSAL OFFICE ACCEPTED S.F. 24 UNDER PRIOR SOLICITATION.
TO YANK WASTE CO., INC.:
YANK WASTE COMPANY, INC. (YANK WASTE), SUBMITTED BIDS FOR VARIOUS ITEMS UNDER SALE NOS. 27-4120 AND 27-4145 CONDUCTED ON DECEMBER 11, 1973, AND DECEMBER 19, 1973, RESPECTIVELY, BY THE DEFENSE PROPERTY DISPOSAL REGION OFFICE, COLUMBUS, OHIO. WITH BOTH OF ITS BIDS, YANK WASTE SUBMITTED STANDARD FORM (S.F.) 24 (BID BOND). THE CONTRACTING OFFICER DETERMINED BOTH OF YANK WASTE'S BIDS TO BE NONRESPONSIVE FOR FAILURE TO SUPPLY THE PROPER BONDS AS REQUIRED BY THE CONDITIONS OF SALE (DPDS FORM 83) MADE A PART OF THE SALES INVITATIONS FOR BIDS.
YANK WASTE AND ITS INSURANCE AGENT, CARPENTER AND MILNARIK AGENCY, INC., PROTESTED TO OUR OFFICE THE REJECTION OF THE ABOVE BIDS DUE TO THE FACT THAT THE COLUMBUS OFFICE OF DEFENSE PROPERTY DISPOSAL OFFICE HAD PREVIOUSLY ACCEPTED S.F. 24 IN CONNECTION WITH SALE NO. 27-4120.
STANDARD FORM 24 IS THE BOND FORM PRESCRIBED FOR USE IN PROCUREMENT ACTIONS, WHEREAS, THE BOND FORMS REQUIRED FOR GOVERNMENT SALE ACTIONS ARE EITHER S.F. 150, FOR USE WITH INDIVIDUAL SALES, OR S.F. 151, FOR USE ON AN ANNUAL BASIS TO SUPPORT BIDS UNDER ADVERTISED SALES.
WHILE OUR OFFICE HAS STATED IN THE PAST THAT THE FAILURE TO USE A DESIGNATED BID BOND FORM IS NOT SUFFICIENT TO RENDER A BID NONRESPONSIVE, IF THE USE OF OTHER THAN THE PRESCRIBED BID BOND FORM VARIES THE RIGHTS AND OBLIGATIONS OF THE PARTIES, THEN THE BID MUST BE REJECTED. 39 COMP. GEN. 83, 84 (1959).
A REVIEW OF S.F. 24 AND S.F. 150 AND 151 SHOWS THAT UNDER S.F. 150 AND 151 THE SURETY MUST PAY 20 PERCENT OF THE PURCHASE PRICE SHOULD A BIDDER FAIL TO PERFORM UNDER THE SALES CONTRACT WHILE S.F. 24 REQUIRES THE SURETY TO PAY THE GOVERNMENT ANY COST OF REPROCURING THE WORK WHICH EXCEEDS THE AMOUNT OF THE DEFAULTED BIDDER'S BID. AS CAN BE SEEN FROM THE ABOVE, THE RIGHTS OF THE GOVERNMENT COULD BE DIFFERENT UNDER THE TWO TYPES OF BONDS IN THE EVENT OF DEFAULT. THEREFORE, WE DO NOT OBJECT TO THE REJECTION OF THE BIDS OF YANK WASTE UNDER THE SUBJECT SALES.
REGARDING THE CONTENTION OF THE PROTESTER THAT S.F. 24 HAD BEEN ACCEPTED UNDER A PRIOR SALE BY THE SAME DISPOSAL OFFICE, WE FIND THIS FACT NOT TO BE CONTROLLING. AS WE ENUNCIATED IN THE PREVIOUSLY CITED CASE:
"THE FURTHER FACT THAT YOUR SURETY'S BID FORM MAY HAVE BEEN REGARDED AS ACCEPTABLE IN THE PAST DOES NOT, OF COURSE, ESTABLISH THAT IT SHOULD BE CONSIDERED INTERCHANGEABLE WITH THE STANDARD GOVERNMENT FORM." 39 COMP. GEN. 83, 85 (1959).
WE BELIEVE THE SAME REASONING PREVAILS HERE.
ACCORDINGLY, THE PROTEST IS DENIED.