Leeward Construction Corporation (W912BU22B0003)

B-420504 Mar 03, 2022 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Leeward Construction, Inc., of Honesdale, Pennsylvania, protests the exclusion of its bid as non-responsive under invitation for bids (IFB) No. W912BU22B0003, which was issued by the Department of the Army, U.S. Army Corps of Engineers, for safety modifications to the General Edgar Jadwin Dam in Wayne County, Pennsylvania. Leeward contends that the Army abused its discretion by rejecting the protester's bid bond as inconsistent with the IFB's requirements. We dismiss the protest because it fails to state legally or factually sufficient bases of protest. View Decision Decision Matter of:  Leeward Construction Corporation File:  B-420504 Date:  March 3, 2022 David A. Levine, Esq., McNees Wallace & Nurick, LLC, for the protester. Katherine D. Denzel, Esq., Jason H. Shippy, Esq., and Scott C. Seufert, Esq., Department of the Army, for the agency. Evan D. Wesser, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest alleging that the agency abused its discretion in rejecting a bid as nonresponsive for failing to provide a compliant bid bond based on prior GAO decisions finding that the identical commercial bid bond used by the protester was inconsistent with applicable legal requirements is dismissed as legally and factually insufficient.  Procuring agencies do not abuse their discretion when they reasonably rely on prior GAO decisions with respect to identical legal issues where there are no intervening changes in controlling or persuasive authority or compelling, distinguishing legal or factual circumstances. DECISION Leeward Construction, Inc., of Honesdale, Pennsylvania, protests the exclusion of its bid as non-responsive under invitation for bids (IFB) No. W912BU22B0003, which was issued by the Department of the Army, U.S. Army Corps of Engineers, for safety modifications to the General Edgar Jadwin Dam in Wayne County, Pennsylvania.  Leeward contends that the Army abused its discretion by rejecting the protester’s bid bond as inconsistent with the IFB’s requirements. For the reasons that follow, we dismiss the protest because it fails to state legally or factually sufficient bases of protest. BACKGROUND The IFB, which was issued on October 27, 2021, and subsequently amended twice, sought bids for the removal of “riprap” (or stone facing) on the upstream face of the General Edgar Jadwin Dam and installing of geosynthetic liner.  See Req. for Dismissal at 1; id., exh. No. 1, IFB, at 1, 3.  Relevant here, the IFB incorporated in full text Federal Acquisition Regulation (FAR) provision 52.228-1, Bid Guarantee, which provides: a) Failure to furnish a bid guarantee in the proper form and amount, by the time set for opening of bids, may be cause for rejection of the bid. b) The bidder shall furnish a bid guarantee in the form of a firm commitment, e.g., bid bond supported by good and sufficient surety or sureties acceptable to the Government, postal money order, certified check, cashier’s check, irrevocable letter of credit, or, under Treasury Department regulations, certain bonds or note of the United States.  The Contracting Officer will return bid guarantees, other than bid bonds, (1) to unsuccessful bidders as soon as practicable after the opening of bids, and (2) the successful bidder upon execution of contractual documents and bonds (including any necessary coinsurance or reinsurance agreements), as required by the bid accepted. c) The amount of the bid guarantee shall be 20 percent of the bid price or $3,000,000, whichever is less. d) If the successful bidder, upon acceptance of its bid by the Government within the period specified for acceptance, fails to execute all contractual documents or furnish executed bond(s) within 10 days after receipt of the forms by the bidder, the Contracting Officer may terminate the contract for default. e) In the event the contract is terminated for default, the bidder is liable for any cost of acquiring the work that exceeds the amount of its bid, and the bid guarantee is available to offset the difference. Req. for Dismissal, exh. No. 1, IFB at 20-21 (quoting FAR provision 52.228-1).[1] The IFB did not specify any particular form that bidders were required to use for their respective bid bonds.  Leeward utilized American Institute of Architects (AIA) Document A310 – 2010, Bid Bond.[2]  Relevant here, the AIA form provides that in the event of the offeror’s default, the surety: [P]ays to the Owner the difference, not to exceed the amount of this Bond, between the amount specified in said bid and such larger amount for which the Owner may in good faith contract with another party to perform the work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Req. for Dismissal, exh. No.