Matter of: The Riley Corporation-- Reconsideration File: B-250737.2 Date: December 7, 1992

Matter of: The Riley Corporation-- Reconsideration File: B-250737.2 Date: December 7, 1992

PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Request for reconsideration is denied where agency properly rejected protester's bid bond as ambiguous, and protester essentially raises same matters on reconsideration as were raised in its original protest.

Attorneys

DECISION The Riley Corporation requests reconsideration of our dismissal of its protest challenging the rejection of its bid under invitation for bids (IFB) No. 647-8-92, issued by the Department of Veterans Affairs (VA), for update of boiler plant equipment at a VA medical center. We dismissed Riley's protest because it failed to establish a basis for challenging the agency's action.

We deny the request for reconsideration.

According to Riley's protest, the VA rejected Riley's bid because the VA concluded that the bid bond was in the name of a corporate bidder and an individual, as a joint venture, while the bid was in the name of the corporate bidder. However, Riley explained that the bid bond form "clearly indicated" that the Georgia corporation was the principal.

In dismissing the protest, we found that the protest did not include sufficient information to establish the likelihood that the VA violated applicable procurement laws or regulations. Our decision was based upon the discrepancy in the identity of the principal between the bid bond and the bid. Although the b listed as principal "The Riley Corporation and Walter R. Hope, Individually as an Open Joint Venture." The bond was signed by Mr. Hope as "President" and as "Individual." Since the named
bidder and the principal named on the bid bond were not the same entity,
and there was no allegation that anything in the bid submission
established that the two were actually the same entity, Riley failed to
provide any basis to object to the agency's decision to reject its bid.
See The Scotsman Group, Inc., B-245634, Jan. 13, 1992, 92-1 CPD Para. 57.

In its request for reconsideration, Riley argues that we treated as
"fact" the allegation of the VA that the principals on the bid and bid
bond were different. While conceding that the bid bond lists the joint
venture as the principal, Riley argues that the bond form otherwise makes
clear that only Riley was the principal. Specifically, Riley observes
that: in the block entitled "Type of Organization," "Corporation," not
"Joint Venture" is checked; it is listed as a Georgia corporation, and
corporate filings with Georgia clearly indicate that Riley is "the only
corporation at the address listed in the principal section of the bid
bond"; and there is no incorporated joint venture of Riley and Mr. Hope,
individually. We disagree that these matters make clear the identity of
the principal on the bid bond.

Bid bond requirements are a material part of the IFB, and a contracting
officer cannot waive a failure to comply with a bond provision. Design For
Health, Inc., 69 Comp.Gen. 712 (1990), 90-2 CPD Para. 213. The
sufficiency of a bid bond depends on whether the surety is clearly bound
by its terms; when the liability is not clear, the bond is defective. 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. G&C
Enters., Inc., B-233537, Feb. 15, 1989, 89-1 CPD Para. 163. Moreover, a
surety under a bond in the name of more than one principal is not liable
for the default of one of them. A. D. Roe Co., Inc., 54 Comp.Gen. 271
(1974), 74-2 CPD Para. 194. For this reason, the principal listed on the
bid bond must be the same as the nominal bidder. Mount Diablo Corp. Inc.,
B-228193, Nov. 10, 1987, 87-2 CPD Para. 475. The fact that a bidder may
have simply added another individual to a bid bond without intending to
qualify the bidder's obligation does not cure the defect in the bond. New
Solid, Ltd., B-246357, Feb. 7, 1992, 92-1 CPD Para. 163.

Here, Riley submitted a bid bond which created an ambiguity in the
identity of the principal; while the bid names the corporation, the bond
names a joint venture comprised of the corporation and its president, as
an individual. Although the protester constr between the bid and the bond,
it is unpersuasive. Further, the contracting officer was not obligated to
interpret the ambiguous bid and bond by deductions and inferences in order
to make the bid responsive. Rather, the bidder bears the primary
responsibility for properly preparing its bid documents in such a fashion
that the contracting officer can accept the bid with full confidence that
an enforceable contract, conforming to all the requirements of the IFB,
will result. See The Scotsman Group, Inc., supra.

A protest must include a detailed statement of the legal and factual
grounds of the protest, which grounds must be legally sufficient. Bid
Protest Regulations 4 C.F.R. Secs. 21.1(c)(4), 21.1(e) (1992). These
requirements contemplate that protesters will provide, at a minimum,
either allegations or evidence sufficient, if uncontradicted, to establish
the likelihood that the protester will prevail in its claim of improper
agency action. Robert Wall Edge--Recon., 68 Comp.Gen. 352 (1989), 89-1
CPD Para. 335. Neither Riley's protest nor its request for reconsideration
satisfies this requirement.

In expressing disagreement with our decision, the protester in essence
repeats arguments it made previously. To obtain reconsideration, the
requesting party must show that our prior decision may contain either
errors of fact or law or present information not previously considered
that warrants reversal or modification of our decision. 4 C.F.R. Sec.
21.12(a). The repetition of arguments made during our consideration of the
original protest and mere disagreement with our decision do not meet this
standard. R.E. Scherrer, Inc.--Recon., B-231101.3, Sept. 21, 1988, 88-2
CPD Para. 274.

The request for reconsideration is denied.