B-228193, Nov 10, 1987, 87-2 CPD 475

B-228193, Nov 10, 1987, 87-2 CPD 475

PROCUREMENT - Sealed Bidding - Bid Guarantees - Responsiveness - Contractors - Identification DIGEST: Where a bid is submitted in the name of one firm as a corporation but is accompanied by a bid bond in the name of the corporate bidder and an individual as a joint venture doing business under the corporate name, the bond is materially deficient, as the obligation of the surety is unclear, and, therefore, the bid must be rejected as nonresponsive.

Mount Diablo Corporation, Inc:

Mount Diablo Corporation, Inc., protests the rejection of its low bid under solicitation No. CA PORE ERFO 1364 (1) and 10 (2), issued by the Federal Highway Administration (FHWA) for construction services. FHWA determined that Mount Diablo's bid was nonresponsive because there was a discrepancy between the legal entity shown on the bid and the entity shown on the bid bond.

We deny the protest.

The bid submitted listed Mount Diablo Corporation, as the bidder, and was signed by Vinton Allen Garbesi, as president.
In the certification
section of the bid, "corporation" was checked as the type of business
organization.
The bid bond enclosed with the bid listed as principal
"Vinton A. Garbesi, an individual and Mount Diablo Corporation, Inc., a
California Corporation, a Joint Venture DBA: Mount Diablo Corporation,
Inc., PO Box 30393, Walnut Creek, California 94598," and both "individual"
and "corporation" were checked as the type of business organization.
The
signature of Vinton A. Garbesi appeared as president.

Bid bond requirements are a material part of a solicitation.
See 52
Comp.Gen. 223 (1972); Atlas Contractors, Inc./Norman T. Hardee, a Joint
Venture, B-208332, Jan. 19, 1983, 83-1 CPD Para. 69.
A bid bond which
names a principal different from the nominal bidder is deficient and the
defect may not be waived as a minor informality.
A. D. Roe Co. Inc., 54
Comp.Gen. 271 (1974), 74-2 CPD Para. 194.
This rule is prompted by the
rule of suretyship that no one incurs a liability to pay the debts of
another unless he expressly agrees to be bound.
See Hoyer Construction
Co./K.D. Hoyer, a Joint Venture, B-183096, Mar. 18, 1975, 75-1 CPD
Para. 163; Atlas Contractors, Inc./Norman T. Hardee a Joint Venture,
B-208332, supra. A surety under a bond in the name of more than one
principal is not liable for the default of one of them.
For this reason,
we rigidly apply the rule that the principal listed on the bid bond must
be the same as the nominal bidder.
Opine Construction, B-218627, June 5,
1985, 85-1 CPD Para. 645.

Mount Diablo contends that its bid is responsive because the entity
listed on the bid is the same entity listed on the bid bond, and,
therefore, the government's interest is protected.
Moreover, the
protester submits the affidavit of the surety in support of its argument
that it was the bid of Mount Diablo under the which the surety assumed
liability to the government.

In our opinion, Mount Diablo's arguments are without merit.
Mount Diablo
has not shown that the legal entity listed on the bid, a corporation, is
the same as the legal entity listed on the bid bond, a joint venture doing
business under the name of a corporation.

Mount Diablo argues that the use of the term "DBA" (doing business as) in
the bid bond sufficiently identifies Mount Diablo Corporation, Inc., as
the same entity on the bid.
We do not agree.
The entity on the bid is
identified as a corporation while the entity on the bid bond is a joint
venture doing business under the assumed or fictitious name of Mount
Diablo Corporation, Inc. While the names may be the same, the legal
entities are different.

Mount Diablo has cited numerous decisions in support of its argument that
minor variations between a bid and bid bond would not render the bid
nonresponsive.
See Jack B. Imperiale Fence Co., Inc., B-203261, Oct. 26,
1981, 81-2 CPD Para. 339; Lamar Electric Co., B-216397, Dec. 24, 1984,
84-2 CPD Para. 689; B-176321, August 25, 1972; B-169369, April 7,
1970.
These cases are not applicable to this case.
For example, in Jack
B. Imperiale Co., Inc., the bid and bid bond identified the bidder by
three different corporate names.
The legal entity on the bid and the
bond, however, was the same, a corporation.
The bidder in Jack B.
Imperiale was able to show that despite the variations in name, the
differently identified entities were actually the same.
Similarly, in
Lamari Electric Co., the entity that submitted the bid and was the
principal on the bid bond is the same, an individual.
Thus, while the
name on the bid was different from the name on the bid bond, the names
referred to the same legal entity, and the legal entity that submitted the
bid was the same as the entity on the bid bond.

In this case, the legal entity submitting the bid is a corporation while
the entity on the bid bond is a joint venture doing business under a
corporate name.
While the names appear the same, the legal entities are
different.
In Andersen Construction Co., et al., B-213955 et al., Mar. 9,
1984, 84-1 CPD Para. 279, and Villarreal Construction, Inc., B-184409,
Nov. 28, 1975, 75-2 CPD Para. 351, we found that where a bid is
submitted by a corporation but accompanied by a bid bond which identifies
the corporation and its president as a joint venture, the bid was properly
rejected as nonresponsive.
The same result is warranted here.

Mount Diablo also argues that its bid is responsive because the surety
considered itself bound under the bid bond to the bid of Mount Diablo
Corporation, Inc. While it may have been the intent of the surety to incur
the debts of Mount Diablo Corporation, Inc., as stated in the surety's
affidavit, this fact cannot be conclusively determined from the bid and
bid bond without report to post bid opening explanations.
Therefore, we
find the bid properly was rejected as nonresponsive.
See H & N Electric,
Inc., et al., B-224024, Dec. 29, 1986, 86-2 CPD Para. 718.

The protest is denied.