B-141286, DECEMBER 8, 1959, 39 COMP. GEN. 430

B-141286, DECEMBER 8, 1959, 39 COMP. GEN. 430

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - BID BOND - TELEGRAPHIC BIDS A TELEGRAPHIC BID CONTAINING A CITATION TO A BID BOND NUMBER AND THE NAME OF THE SURETY SUBMITTED, IN RESPONSE TO AN INVITATION WHICH SPECIFICALLY REQUIRED THE FURNISHING OF A BID BOND PRIOR TO OPENING, BY A LOW BIDDER WHO DID NOT FURNISH THE REQUIRED BOND AND THE TELEGRAPHIC BID CONFIRMATION UNTIL MORE THAN A DAY AFTER THE BID OPENING DOES NOT COMPLY WITH THE BID BOND REQUIREMENT OF THE INVITATION.

TO ASHLAND CLOTHES, INCORPORATED, DECEMBER 8, 1959:

REFERENCE IS MADE TO LETTERS OF NOVEMBER 18 AND 28, 1959, FROM MR. NORMAN JACOBSON, ATTORNEY, PROTESTING ON YOUR BEHALF THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. QM ( CTM) 36 242-60-223, ISSUED BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT, DEPARTMENT OF THE ARMY. IT IS THE CONTENTION OF YOUR ATTORNEY, IN SUBSTANCE, THAT UNDER THE TERMS OF THE INVITATION A BID BOND WAS NOT REQUIRED TO BE FURNISHED ON OR BEFORE THE DATE OF BID OPENING IN THE EVENT A TELEGRAPHIC BID WAS SUBMITTED. IT IS FURTHER CONTENDED THAT EVEN IF THE LANGUAGE OF THE INVITATION REQUIRING THE SUBMISSION OF A BID BOND WITH BIDS BE CONSTRUED TO APPLY TO TELEGRAPHIC BIDS, THEN YOUR REFERENCE TO THE BOND NUMBER AND NAME OF YOUR SURETY IN YOUR TELEGRAPHIC QUOTATION, AND THE PHYSICAL DELIVERY OF THE BOND SOON AFTER OPENING OF THE BIDS CONSTITUTED SUBSTANTIAL COMPLIANCE WITH SUCH REQUIREMENTS, AND, FOR THAT REASON, AWARD OF THE CONTRACT SHOULD BE MADE TO YOU SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED.

THE SUBJECT INVITATION, WHICH WAS ISSUED BY THE PROCUREMENT AGENCY ON OCTOBER 9, 1959, SOUGHT OFFERS TO FABRICATE FROM GOVERNMENT-OWNED MATERIALS 27,000 GARMENTS EACH UNDER ITEMS NOS. 1 AND 2, CONSISTING OF WOMEN'S COATS AND SKIRTS, RESPECTIVELY. THE DATE ESTABLISHED FOR OPENING OF THE BIDS WAS 2:00 P.M., OCTOBER 20, 1959, AND BECAUSE OF THE LIMITED TIME AFFORDED PROSPECTIVE BIDDERS TO PREPARE THEIR QUOTATIONS, THE INVITATION AUTHORIZED THE SUBMISSION OF TELEGRAPHIC BIDS.

PARAGRAPH F OF STANDARD FORM NO. 526-2, MADE A PART OF THE INVITATION, REQUIRED THAT EACH BIDDER SUBMIT A BID BOND WITH ITS PROPOSAL EQUAL TO FIFTY PERCENT OF THE TOTAL BID PRICE, AND IT APPRISED ALL BIDDERS THAT " UNLESS THE BID BOND IS RECEIVED PRIOR TO TIME OF BID OPENING, THE BID WILL BE REJECTED AS NONRESPONSIVE.' ON THE DATE OF BID OPENING YOU TRANSMITTED A TELEGRAM TO THE PROCUREMENT OFFICE IN WHICH YOU QUOTED AN OFFER FOR EACH ITEM AND ADVISED THAT " BOND NO. 218414/11 FOR 50 PERCENT OF TOTAL BID PRICE FOR UP TO 27,000 UNITS FROM ROYAL INDEMNITY APPLIES.' SINCE YOU FAILED TO COMPLY WITH THE REFERRED TO MANDATORY PROVISIONS OF PARAGRAPH F OF THE INVITATION THE CONTRACTING OFFICER REJECTED YOUR TELEGRAPHIC BID.

WITH RESPECT TO THE CONTENTION OF YOUR ATTORNEY THAT IF A BID IS SUBMITTED BY TELEGRAM A BID BOND IS NOT REQUIRED, WE RECOGNIZE THE IMPOSSIBILITY OF ATTACHING OR ENCLOSING ANY COLLATERAL MATERIAL OR DOCUMENTS WITH A TELEGRAPHIC COMMUNICATION. HOWEVER, WE ALSO RECOGNIZE THE PRACTICE FREQUENTLY RESORTED TO BY GOVERNMENT BIDDERS OF SUBMITTING FORMAL BIDS WITH THE VARIOUS CERTIFICATIONS AND OTHER EXECUTED FORMS FREQUENTLY REQUIRED, INCLUDING THE BID BOND, AND THEREAFTER TIMELY SUBMITTING BY TELEGRAM THEIR FIRM AND FIXED PRICE, EITHER AS AN ORIGINAL QUOTATION OR AS AN AMENDMENT TO THEIR PRIOR BID. IN VIEW OF THE CLEAR AND UNAMBIGUOUS REQUIREMENT OF THE INVITATION AND THE SPECIAL CAUTION NOTICE TO BIDDERS THAT A BID BOND BE FURNISHED ON OR BEFORE THE TIME FIXED FOR OPENING OF THE BIDS, AND HAVING REGARD FOR THE GENERAL PRACTICE MENTIONED ABOVE, WE FEEL THAT THE CONCLUSION REACHED IN OUR DECISION OF FEBRUARY 5, 1959, 38 COMP. GEN. 532, IS EQUALLY FOR APPLICATION HERE.

IN REGARD TO THE CONTENTION OF YOUR ATTORNEY THAT CITATION TO A BOND NUMBER AND THE NAME OF A SURETY IN YOUR TELEGRAPHIC BID IS SUBSTANTIAL COMPLIANCE WITH THE BID BOND REQUIREMENTS OF THE INVITATION, THE RECORD BEFORE US INDICATES THAT THE BID BOND CITED IN YOUR TELEGRAM WAS UNDER YOUR CONTROL AS LATE AS THE DAY AFTER THE TIME FIXED FOR THE BID OPENING AS EVIDENCED BY THE ENVELOPE IN WHICH THE BOND AND TELEGRAPHIC BID CONFIRMATION WERE FORWARDED. THE DAY OF MAILING THEREOF HAS BEEN VERIFIED BY THE NEW YORK CITY POST OFFICE AUTHORITIES. WE, THEREFORE, AGREE WITH THE OPINION OF THE PROCUREMENT OFFICIALS THAT REFERENCE IN YOUR TELEGRAPHIC BID TO A BOND NUMBER AND THE NAME OF A SURETY WAS NOT TANTAMOUNT TO THE FURNISHING OF THE BOND ITSELF.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE PROTEST OF YOUR ATTORNEY FURNISHED NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE.