Harris Excavating, B-284820, June 12, 2000

B-284820 Jun 12, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protester's bid is responsive. Where reasonably availabe extrinsic evidence in existence at the time of bid opening establishes that the bidder and principal are the same entity. Such that there is no dubt that the surety will be liable under the bond to the government on the bidder's behalf. The Corps rejected Harris's bid because the names of the bidding entity and of the principal on the required bid bond were different. The bid was signed by "Larry Harris. The bidder's Taxpayer Identification Number (TIN) was stated. It was indicated that the bidder was a sole proprietorship that was not owned or controlled by a common parent and that: It operates as [ ] a corporation incorporated under the laws of the State of Kansas. View Decision Matter of: Harris Excavating File: B-284820 Date: June 12, 2000 DIGEST Attorneys DECISION Harris Excavating protests the rejection of its bid and the award of a contract to Smoky Hill LLC under invitation for bids (IFB) No. DACW41-00-B-0001, issued as a total small business set-aside, by the U.S. Army Corps of Engineers, Kansas City District, for construction services. The Corps rejected Harris's bid because the names of the bidding entity and of the principal on the required bid bond were different. We sustain the protest. The IFB required bidders to submit a bid guarantee in the amount of 20 percent of their bid price. IFB at 1, 00100-1. The solicitation included the required clause at Federal Acquisition Regulation (FAR) Sec. 52.228-1(a), which informed bidders that the failure to furnish a bid guarantee in the proper form and amount may result in the rejection of the bid. IFB at 00700-80, 00700-81. The protester submitted the apparent low bid, identifying itself as "Harris Excavating." Agency Report, Tab 1, Harris Bid, at 2. The bid was signed by "Larry Harris," who identified himself as president. Id. In the bid representations and certifications, the bidder's Taxpayer Identification Number (TIN) was stated, and it was indicated that the bidder was a sole proprietorship that was not owned or controlled by a common parent and that: It operates as [ ] a corporation incorporated under the laws of the State of Kansas, [X] an individual, [ ] a partnership, [ ] a nonprofit organization, or [ ] a joint venture. Id. at 00600-2, 00600-3, 00600-5. The bid bond submitted with the bid by the protester contained a blank space that was to contain the name of the principal, but was signed by "R.L. Harris," who was identified as the principal and whose title was listed as owner. In addition, the bid bond did not contain the solicitation number but specifically described the IFB work. The Corps rejected the protester's bid because the discrepancy in the names of the identified bidding entity and principal identified in the bond assertedly created doubt as to whether the surety would be bound to the government on behalf of the protester. Contracting Officer's Statement at 2-3; Legal Memorandum at 5. Also, the agency states that there was "doubt regarding the nature of the bidder's organization"; that is, the bid was signed by an individual identified as president, which the Corps argues indicates a corporate entity, while the bond principal was identified as owner, which indicates a sole proprietorship. Contracting Officer's Statement at 2-3. Although, prior to rejecting Harris's bid, the agency requested information from the protester concerning its responsibility, the agency did not inquire as to the discrepancy between the names of the bidding entity and bond principal. Id. 1-2. Award was made to Smoky Hill LLC, a higher-priced bidder, and this protest followed. Performance has been stayed pending our decision in this matter. Harris contends that the entities identified in the bid and bid bond are one and the same, an individual doing business variously as Harris Excavating or R.L. Harris or Larry Harris. Protest at 3. The protester complains that the agency made no inquiry as to the identity of the bidding and bond principal and argues, citing a number of our decisions, e.g., Jack B. Imperiale Fence Co., Inc., B-203261, Oct. 26, 1981, 81-2 CPD Para. 339 and Lamari Elec. Co., B-216397, Dec. 24, 1984, 84-2 CPD Para. 689, that information demonstrating that the named bidder and bid bond principal are the same entity can be submitted after bid opening where the information is reasonably available at the time of bid opening. In this regard, Harris has submitted a number of documents that predate the bid opening date to demonstrate that the bidder and bond principal are the same entity. For example, Harris has submitted a 1994 Internal Revenue Form 1099-MISC, prepared by the Corps's Omaha District, which is addressed to "R.L. Harris DBA Harris Excavating" and which identifies as the recipient's identification number the same TIN as in Harris's bid. Protest, exh. E.