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Islands Mechanical Contractor, Inc., B-404275, January 24, 2011

  • By GCPC GovCon Legal Team
  • February 10, 2011
  • Bid BondLost Proposal

Link: GAO Opinion

Agency: Department of the Army

Disposition: Protest denied.

Keywords: Lost Proposal Bid Bond

General Counsel P.C. Highlight: Agencies have a fundamental obligation to have procedures in place to receive submissions from competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submission received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission, and such occasional loss generally does not entitle an aggrieved competitor to relief. In that circumstance, the offeror bears that risk of loss.

—————————————————————————————————————————–

Islands Mechanical Contractor, Inc. (IMC) protests the Department of the Army’s (Army) rejection of its proposal and award of multiple award task order contracts to other offeror’s, under a request for proposals (RFP), for design/build and construction work.

The RFP contemplated the award of multiple indefinite-delivery/indefinite-quantity (ID/IQ) contracts, with a base period of three years with two option years, for design/build of construction-type work. The RFP required offeror’s to submit a bid guarantee for 20% of the bid price or $3 million, whichever was less. The RFP provided that the government would review the bid guarantee for legal sufficiency and that a bid guarantee found legally insufficient may render the offer ineligible for award. The solicitation specifically cautioned that facsimile and photocopied bid guarantees were not acceptable.

IMC’s proposal was evaluated as overall satisfactory. However, the agency found that IMC’s bid bond was legally insufficient because it was not an original, lacked an original surety agent’s signature, and failed to demonstrate that a duly authorized IMC officer had executed the bid bond. IMC’s proposal was excluded from further consideration.

IMC protests the agency’s rejection of its proposal, asserting that it submitted an original, duly executed bid bond as well as a copy which included a photocopy of the bid bond. IMC speculates that the contracting officer mistakenly furnished the attorney reviewing IMC’s bid bond with the copy instead of the original. IMC submitted affidavits in support of its position. The contracting officer and specialist have submitted sworn statements that IMC submitted a photocopy and not an original.

Agencies have a fundamental obligation to have procedures in place to receive submissions from competitors under a solicitation, to reasonably safeguard submissions received, and to fairly consider all submission received. As a practical matter, however, even with appropriate procedures in place, an agency may lose or misplace a submission, and such occasional loss generally does not entitle an aggrieved competitor to relief. In such a circumstance, the offeror bears the risk of such a loss unless it can prove that the Agency’s procedures are inadequate to safeguard offerors’ submission or that the Agency routinely looses such submissions. The record does not support inadequate procedures or routine loss of offerors’ submissions. Therefore, the lack of an original bid bond in the offeror’s submission renders the submission unacceptable. The protest is denied.

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