United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: BCI Construction USA, Inc.

File: B-407451

Date: December 4, 2012

Ronald J. Garber, Esq., Weissmann Zucker Euster Morochnik, PC, for the protester.

Willie J. Williams, Esq., Department of the Army, for the agency.

Pedro E. Briones, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Where an invitation for bids required the submission of a bid guarantee, agency 

properly rejected protester’s bid as nonresponsive where protester’s bid bond listed 

an incorrect bid opening date and a solicitation number for a different procurement.

DECISION

BCI Construction USA, Inc., of Belleville, Illinois, protests the rejection of its bid 

under invitation for bids (IFB) No. W91237-12-B-0003, issued by the Department 

of the Army, Corps of Engineers, for construction services at Bolivar Dam in Ohio.

We deny the protest.

BACKGROUND

The IFB, which was issued by the agency’s Huntington District on July 6, 2012,

provided for the award of a contract for “service gates replacement, Big Sandy 

Creek of Tuscarawas River, Bolivar, O[hio], Bolivar Dam.” IFB at 1. Bidders were 

required to submit a bid guarantee, or bid bond, in the amount of 20 percent of the 

bid price or $3,000,000, whichever was less.1

 1 A bid guarantee is a form of security that ensures that a bidder will not withdraw its 

bid within the period specified for acceptance and, if required, will execute a written 

contract and furnish required performance and payment bonds. Federal Acquisition 

Regulation (FAR) § 28.001. The bid guarantee secures the surety’s liability to the 

government, thereby providing funds to cover the excess costs of awarding to the 

 Id. at 90. The IFB advised bidders 

(continued...)
Page 2 B-407451 

that the failure to furnish the bid guarantee in the proper form and amount, by the 

time set for opening of bids, may be cause for rejection of the bid. Id. The agency 

amended the IFB four times to, among other things, extend the bid opening date. 

As relevant here, amendment 2 extended the bid opening date until August 17, IFB 

amend. 2, at 1, and amendment 4 extended the bid opening date to August 28. IFB 

amend. 4, at 1.

BCI, which submitted the apparent low bid, provided a bid bond that erroneously 

identified a different solicitation number2 and the wrong bid opening date

(August 17), and that stated that it was for “replacement of service gates.” AR, 

Tab G, BCI’s Bid Bond, at 1.

The contracting officer determined that BCI’s bid bond was defective, because the 

solicitation number on the bond was for a different ongoing procurement, the bid 

date was incorrect, and the bond’s description of the contract work did not reference 

the specific location of the work.3

 See AR, Tab N, Corps Letter to BCI, Sept. 20, 

2012. The Corps rejected BCI’s bid, and this protest followed.

DISCUSSION

BCI challenges the agency’s rejection of its bid, arguing that the bond’s citation to 

an incorrect solicitation number and bid opening date were minor clerical errors 

that BCI could have easily corrected or that the agency should have waived. 

Protest at 3, 5, citing FAR §§ 14.405 (Minor Informalities or Irregularities in Bids), 

14.407 (Mistakes in Bids); Comments at 2-3. In this respect, the protester contends 

that the contracting specialist’s initial request that BCI submit a new bid bond 

confirms that the agency believed the incorrect date and solicitation number to be 

 

(...continued)

next eligible bidder in the event that the bidder awarded the contract fails to fulfill 

these obligations. See, e.g., Bob Cummins Constr. Co., B-406812.2, Aug. 28, 

2012, 2012 CPD ¶ 243 at 3.

2 BCI’s bid bond identified invitation for bids No. W911WN-12-B-0007, which is 

a procurement by the agency’s Pittsburgh District to rehabilitate gantry cranes 

at the Mahoning Creek Dam in Pennsylvania. See Agency Report (AR), Tab P, 

FedBizOps Notice, Solicitation No. W911WN-12-B-0007. BCI subsequently was 

awarded a contract under this solicitation on September 27, 2012.

3 The agency’s contract specialist contacted BCI on September 13 regarding what 

he perceived were errors in BCI’s bid bond, and initially requested a corrected bid 

bond, but later that same day informed BCI that further information concerning the 

errors would be forthcoming. Contracting Officer’s Statement at 3. BCI states that 

it did not submit a corrected bid bond pending BCI’s receipt of additional information 

from the agency’s contracting specialist. See Protest at 7.
Page 3 B-407451 

minor defects. Protest at 4. The protester argues that rejection of BCI’s bid was 

unwarranted, because there is no confusion regarding the liability of the surety or 

to which solicitation the bid bond applied. See id. at 3, 5; Comments at 3. For 

example, BCI argues that, although its bond identified the wrong bid opening date 

(August 17), the date identified in its bond reflected the bid opening date announced 

in IFB amendment 2 and the identified date does not relate to the solicitation 

erroneously identified in its bond. Comments at 3. BCI also maintains that its 

bond’s description of the project satisfies the requirements of Standard Form 

(SF) 24, which does not specifically require a bidder to identify the specific location 

of the work in its bond.

4

 Id. at 3; Protest at 5.

The Corps responds that the bond was materially defective and disputes that the 

errors in BCI’s bid bond constitute minor informalities or clerical mistakes that 

could be corrected or waived. See AR at 9. The agency claims that the errors, 

collectively, provide no assurance that the surety intended to be obligated to the 

government for the procurement in question. See id. The Corps argues that the 

FAR provisions for waiving noncomplying bid guarantees do not apply in this case. 

Id. at 14-15, citing FAR §§ 28.101-4(a), (c).

The determinative question in judging the sufficiency of a bid guarantee is whether 

it could be enforced if the bidder subsequently fails to execute required contract 

documents and to provide performance and payment bonds. TJ’s Marine Constr.

LLC, B-402227, Jan. 7, 2010, 2010 CPD ¶ 19 at 3. 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 or uncertainty exists at 

the time of bid opening that the bidder has furnished a legally binding bond, the bid 

itself is rendered defective and must be rejected as nonresponsive. See, e.g., id.; 

BW JVI, LLC, B-401841, Dec. 4, 2009, 2009 CPD ¶ 249 at 3.

The solicitation number referenced in a bid bond is a material element of the bond 

affecting its acceptability. Joseph B. Fay Co., B-241769.2, Mar. 1, 1991, 91-1 CPD 

¶ 234 at 2. Nevertheless, a bid bond that cites an incorrect solicitation number may 

be acceptable where there are clear indicia on the face of the bond that otherwise 

identify it with the correct solicitation. Kirila Contractors, Inc., B-230731, June 10, 

1988, 88-1 CPD ¶ 554 at 2-3 (incorrect solicitation number in bond appeared to be 

a typographical error and did not refer to an ongoing procurement). Such indicia 

may include correct identification of the bid opening date; accurate description of 

the type of services sought; and/or designation of a maximum penal sum in an 

amount which correlates with the amount of the bid. SEEMA, Inc., B-255884, 

Apr. 13, 1994, 94-1 CPD ¶ 256 at 2-3. Another significant factor to be considered 

in determining the acceptability of such a bond is whether or not there are other 

 4 BCI submitted its bid bond using SF 24. AR, Tab G, BCI’s Bid Bond, at 1.
Page 4 B-407451 

ongoing procurements to which the misstated solicitation number could reasonably 

refer. Kirila Contractors, Inc., supra.

Here, the record shows that the agency properly determined that BCI’s bid bond 

was defective and rejected the protester’s bid. It is uncertain whether, at the time 

of bid opening, BCI had provided the government a legally binding bid bond as 

required by the IFB, because the bond referenced a solicitation number for another 

ongoing procurement by the Corps and included an incorrect bid opening date. A 

bid bond is defective, and the agency may properly reject the bid, where the bond

references a wrong bid opening date and identifies a different solicitation instead of 

the solicitation that the bond is actually intended to cover. A & A Roofing Co., Inc., 

B-219645, Oct. 25, 1985, 85-2 CPD ¶ 463 at 3. This is because the bid bond’s 

reference to a different solicitation provides the surety with an opportunity to 

subsequently assert that it was liable only for a default on a bid for the wrongly cited 

procurement, not the bidder’s intended procurement. See Conservatek Indus., Inc., 

B-254927, Jan. 26, 1994, 94-1 CPD ¶ 42 at 4 (bid rejected where bond referenced 

different construction project number). Moreover, the description of the project in 

BCI’s bind bond--which is more general than the IFB’s description of the project--by 

itself, is not enough to overcome the incorrect solicitation number and bid date. 

See Kinetic Builders, Inc., B-223594, Sept. 24, 1986, 86-2 CPD ¶ 342 at 3-4, aff'd, 

Fitzgerald & Co., Inc.--Recon., B-223594.2, Nov. 3, 1986, 86-2 CPD ¶ 510 at 1-2 

(where bid bond references incorrect solicitation number for another ongoing 

procurement, bond’s citation to correct bid opening date and general description 

of work did not sufficiently identify the bond with the correct solicitation); Joseph B. 

Fay Co., supra, at 2-3 (generic description of work does not render bid bond 

enforceable where bond references standard bidding form number instead of 

solicitation number and incorrect bid opening date).

In short, we agree with the agency that the liability of BCI’s surety is uncertain, 

such that the bid guarantee was defective. A defective bid bond renders the bid 

nonresponsive, which may not be waived after bid opening. William V. Walsh 

Constr. Co., Inc., B-241257, Oct. 3, 1990, 90-2 CPD ¶ 270 at 2 n.1.

The protest is denied.

Susan A. Poling

General Counsel