B-158904, JUN. 8, 1966

B-158904, JUN. 8, 1966

TO COMPUTER UTILITY CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 7, 1966, PROTESTING THE REJECTION OF YOUR BID AS NONRESPONSIVE FOR FAILURE TO PROVIDE BID SECURITY AS SPECIFIED BY SPECIAL PROVISION 8 OF INVITATION FOR BIDS NO. OMASD-1-B- 67, ISSUED BY THE OFFICE OF MANAGEMENT SERVICES, UNITED STATES DEPARTMENT OF AGRICULTURE.

IN YOUR TELEGRAM YOU STATE THAT YOUR FIRM HAS BEEN READY, WILLING, AND ABLE TO FURNISH BID SECURITY SINCE THE BID OPENING, AND THAT THE CONTRACTING OFFICER HAS BEEN AWARE OF THIS FACT SINCE THE TIME YOUR BID WAS OPENED.

ACCORDING TO THE CONTRACTING OFFICER'S REPORT, THE BIDS WERE OPENED AT THE APPOINTED TIME, 3:00 P.M., APRIL 1, 1966, BUT YOUR FIRM'S BID HAD NOT BEEN RECEIVED BY THAT TIME. ON APRIL 4, 1966, YOUR FIRM'S BID WAS RECEIVED; WAS DETERMINED TO HAVE BEEN TIMELY SUBMITTED PURSUANT TO SECTION 1-2.303 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WAS OPENED, AND WAS FOUND TO LACK THE REQUIRED BID SECURITY. ON THAT SAME DAY, THREE DAYS AFTER SCHEDULED BID OPENING, A REPRESENTATIVE OF YOUR FIRM TELEPHONED THE DEPARTMENT OF AGRICULTURE TO INQUIRE ABOUT THE RESULTS OF THE BIDDING, AND WAS INFORMED YOUR FIRM'S BID HAD BEEN REJECTED FOR FAILURE TO SUBMIT BID SECURITY. AT THAT TIME, THE REPRESENTATIVE OF YOUR FIRM OFFERED TO MAIL A CERTIFIED CHECK WHICH HAD BEEN OBTAINED FOR THIS PURPOSE, BUT THE OFFER WAS REFUSED ON THE GROUNDS THAT NOTHING COULD BE DONE TO ALTER THE SITUATION AT THAT TIME.

SPECIAL PROVISION 8 OF THE INVITATION MADE IT CLEAR THAT BID SECURITY WAS REQUIRED TO BE FURNISHED BY THE TIME SET FOR BID OPENING AND THAT FAILURE TO DO SO COULD RESULT IN THE REJECTION OF YOUR BID. FEDERAL PROCUREMENT REGULATIONS, SECTION 1-10.103-4, WHICH WAS ISSUED PURSUANT TO SECTION 205 (C) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 40 U.S.C. 486 (C), READS IN PERTINENT PART:

"WHERE AN INVITATION FOR BIDS REQUIRES THAT BID BE SUPPORTED BY A BID GUARANTEE AND NONCOMPLIANCE OCCURS, THE BID SHALL BE REJECTED, EXCEPT IN THE FOLLOWING SITUATIONS * * *.'

THIS OBLIGES THE CONTRACTING OFFICER TO REFUSE ALL BIDS WHICH DO NOT SUPPLY ADEQUATE BID SECURITY PRIOR TO BID OPENING WITH CERTAIN EXCEPTIONS. THE ONLY EXCEPTION WHICH COULD POSSIBLY APPLY IS FOUND AT FPR 1-10.103-4 (C). IT PROVIDES THAT THE FAILURE TO MEET THE BID GUARANTEE REQUIREMENT OF THE INVITATION MAY BE WAIVED IF THE BID GUARANTEE IS RECEIVED LATE AND THE LATE RECEIPT MAY BE WAIVED UNDER THE RULES ESTABLISHED FOR CONSIDERATION OF LATE BIDS IN FPR 1-2.303. YOUR TELEPHONIC OFFER TO FURNISH THE BID SECURITY AFTER THE BID OPENING DATE DOES NOT MEET THE WAIVER REQUIREMENTS OF THE EXCEPTION. THE EXCEPTION IS APPLICABLE ONLY IF THE BID GUARANTEE WAS RECEIVED LATE SOLELY BECAUSE OF DELAY IN THE MAILS FOR WHICH YOU WERE NOT RESPONSIBLE. SINCE THE CERTIFIED CHECK YOU OFFERED TO MEET THE BID SECURITY REQUIREMENT WAS STILL IN YOUR HANDS SOME DAYS AFTER SCHEDULED BID OPENING, YOUR BID WAS NOT ELIGIBLE FOR CONSIDERATION.

THE REGULATION WHICH GOVERNS HERE WAS ISSUED PURSUANT TO STATUTORY AUTHORITY AND HAS THE FULL FORCE AND EFFECT OF LAW, SO THAT THE SECTION DIRECTING THAT NONCONFORMING BIDS "SHALL" BE REJECTED IS A MANDATORY REQUIREMENT WHICH IS NOT SUBJECT TO WAIVER EITHER BY THE PROCURING AGENCY OR THIS OFFICE. THIS HAS BEEN THE CONSISTENT POSITION OF THE GOVERNMENT ON THE MATTER SINCE OUR DECISION B-137319 OF FEBRUARY 5, 1959, 38 COMP. GEN. 532. A COPY OF SAID DECISION, WHICH EXPLAINS IN SOME DETAIL THE RATIONALE SUPPORTING THIS POLICY IS ENCLOSED FOR YOUR INFORMATION. SEE ALSO 43 COMP. GEN. 268.

IN VIEW OF THE ABOVE, WE FIND NO BASIS TO QUESTION THE VALIDITY OF THE PROCURING AGENCY'S ACTION IN THIS CASE.