Morrison Construction Services

Morrison Construction Services BNUMBER: B-266233; B-266234 DATE: January 26, 1996 TITLE: Morrison Construction Services ********************************************************************** Matter of:Morrison Construction Services File: B-266233; B-266234 Date: January 26, 1996 John Chapman for the protester. Gerald J. Brentnall, Jr., Esq., Rowley, Grace, Brentnall & Kraft, for Farinha, Inc., an interested party. Calvin F. Boles IV, Esq., and Cynthia S. Guill, Esq., Department of the Navy, for the agency. Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Where bidder has submitted only photocopies of required bid guarantee documents as of the time of bid opening, the bid guarantees are of questionable enforceability and the bids were properly rejected as nonresponsive; since responsiveness cannot be established after bid opening, the defect in the bid guarantees cannot be cured by the submission of the original bid guarantee documents after bid opening. DECISION Morrison Construction Services protests the agency's rejection of its apparent low bids, and the award of contracts to Farinha, Inc., under invitations for bids (IFB) Nos. N62766-95-B-0402 and N62766-95-B-0403, issued by the Department of the Navy for the replacement of air conditioning and heat recovery units at a family housing area in Guam. Morrison challenges the agency's determination that the bid guarantees submitted with the protester's bids were defective because they were photocopies of required bid guarantee documents. We deny the protests. Each IFB required the submission of a bid guarantee in the amount of 20 percent of the bid price. The IFBs' instructions provided that all bids and bonds were to be submitted in "original format" and stated that bids must be manually signed. Other than providing for the timely transmission by facsimile of acknowledgment of amendments, the IFBs did not expressly authorize facsimile bids or modifications. Six bids were received by bid opening on August 17, 1995. Morrison's apparent low bids were rejected, by letter of September 14, for including only photocopies of the required bid bond documents. Awards were made to Farinha, the next low bidder, under the IFBs. These protests followed. Morrison explains that it mailed its bids, including the original bid bonds and power of attorney certificates, by certified mail on Friday, August 11 (5 days before the scheduled bid opening). On Monday, August 14, upon learning that 5 days may not be sufficient time for receipt at the Guam bid openings, it sent a copy of the bids to its agent in Guam; that agent submitted the photocopied bids with notes from Morrison explaining, as stated above, why the photocopies of its bids were being submitted. Morrison's original bid documents were received by the agency on August 25, 8 days after bid opening. Morrison contends that the bond documents are sufficient since they show that the surety was bound at the time of bid opening, that any perceived deficiency due to the photocopy nature of the bond documents should be waived as a minor informality, and that the agency could confirm after award that there were no alterations to the photocopied bond documents since the original bond documents were sent to the agency prior to bid opening. A bid bond is a form of bid guarantee designed to protect the government's interest in the event of default; that is, if a bidder fails to honor its bid in any respect, the bid bond secures a surety's liability for all reprocurement costs. Ray Ward Constr. Co., B-256374, June 14, 1994, 94-1 CPD para. 367. As such, a required bid bond is a material condition of an IFB with which there must be compliance at the time of bid opening; when a bidder submits a defective bid bond, the bid itself is rendered defective and must be rejected as nonresponsive. Blakelee, Inc., B-239794, July 23, 1990, 90-2 CPD para. 65. The determinative question as to the acceptability of a bid bond is whether the bid documents at the time of bid opening establish that the bond is enforceable against the surety should the bidder fail to meet its obligations. If the agency cannot determine definitely from the documents submitted with the bid that the surety would be bound, the bid is nonresponsive and must be rejected. Global Eng'g, B-250558, Jan. 11, 1993, 93-1 CPD para. 31. Photocopies of bid guarantee documents generally do not satisfy the requirement for a bid guarantee since there is no way, other than by referring to the originals after bid opening, for the contracting agency to be certain that there had not been alterations to which the surety had not consented, and that the government would therefore be secured. The King Co., Inc., B-228489, Oct. 30, 1987, 87-2 CPD para.