BNUMBER:  B-272109
DATE:  June 28, 1996
TITLE:  Carter Construction Company, Inc.

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Matter of:Carter Construction Company, Inc.

File:     B-272109

Date:June 28, 1996

George E. Pike, Jr., Esq., Hoffman & Pike, for the protester.
Roger L. Pentzien, Pentzien Inc., an intervenor.
Lester Edelman, Esq., Department of the Army, for the agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected as nonresponsive a bid accompanied by a bid 
bond in which the monetary amounts set out for the penal sum of the 
bond and the liability limit of the surety resulted from alterations 
to the original amounts set out in the bond and the bid or documents 
submitted with the bid did not establish whether the surety was bound 
by these altered amounts.  

DECISION

Carter Construction Company, Inc. protests the rejection of its bid 
under invitation for bids (IFB) No. DACW66-96-B-0027, issued by the 
U.S. Army Corps of Engineers for the lease of a cutterhead hydraulic 
pipeline dredge to be fully operated with attendant plant and snagging 
equipment.  The bid was rejected as nonresponsive after the agency 
determined Carter's bid bond to be defective.  The agency intends to 
award to Pentzien, Inc., the second low bidder.

We deny the protest.

The IFB, issued on April 10, 1996, required bidders to submit prices 
for a hydraulic dredge with an 18-inch pump discharge and for a 
hydraulic dredge with a 20-inch pump discharge.  Award would be made 
for only one of the dredges.  Bidders were also to submit with their 
bids a bid bond or other suitable bid guarantee in the lesser amount 
of 20 percent of the bid price or $3,000,000.  Bids were opened on May 
14.  Carter, the low bidder at $1,322,252, submitted a Standard Form 
24 bid bond in the amount of 20 percent of its bid price, not to 
exceed $300,000.  The bond was signed by the President of Carter and 
by the attorney-in-fact of the corporate surety.  The bid included a 
power of attorney from the surety giving its attorney-in-fact the 
right to obligate the surety on the bid bond.  In examining the bid 
bond, the agency concluded that the two typed figures of $300,000 on 
the bond, inserted first as the penal sum of the bond and then as the 
liability limit of the surety, were alterations of prior typed 
figures.  Also, the bond amount ("$300,000") and the contract amount 
("$1,500,000.00 est.") on the power of attorney were alterations of 
prior typed figures.  There were no initials adjacent to these altered 
amounts on the face of the bid bond or power of attorney.  The agency 
concluded that the surety could not be bound by the terms of the bond 
due to these alterations, and Carter's bid was rejected.

Carter contends that its bid bond is in total conformance with the IFB 
bond requirement and that its bid therefore should not have been 
rejected.  Carter  explains that after the attorney-in-fact inserted 
in the dollar amounts on the two documents, Carter requested that they 
be increased.  Carter further explains that the attorney-in-fact, 
using the same typewriter she used to type the original figures, 
"lifted out" the previous numbers and inserted the new numbers.  Thus, 
the attorney-in-fact had no need to initial the documents since she 
made the changes herself.  Carter believes that if the agency had any 
doubt as to the willingness of the surety to be bound by the figures 
in the bond, it should have simply called the surety to confirm the 
validity of the bond.  According to Carter, this confirmation of the 
validity of the bond would not have constituted an after the fact 
"curing" of the bond since the confirmation does not change the bond.  

We think that Carter's bid was properly found to be nonresponsive.  
The failure of a bidder to present an adequate bid guarantee at the 
time of bid opening renders the bid nonresponsive.  Tri-Tech Int'l, 
Inc., B-244289, June 13, 1991, 91-1 CPD  para.  569.  Thus, a surety's 
obligation must be objectively discernable from the bidding documents 
so that the extent and character of its liability is clearly 
ascertainable.  Allen County Builders Supply, 64 Comp. Gen. 505 
(1985), 85-1 CPD  para.  507.  Alteration of the penal amount of a bid bond, 
without evidence in the bid documents or the bond itself that the 
surety had consented to the alteration, renders the bond defective 
and, therefore, nonresponsive.  Hugo Key & Son, Inc.; Alco Envtl. 
Servs., Inc., B-251053.4; B-251053.5, July 15, 1993, 93-2 CPD  para.  21; HR 
Gen. Maintenance Corp., B-260404, May 16, 1995, 95-1 CPD  para.  247.  The 
record shows that the monetary amounts for the penal sum of the bond 
and the liability limit of the surety in Carter's bond were 
alterations of undeterminable original figures.  There is nothing in 
the bid documents or the bond itself to show that the surety consented 
to the alterations.  Thus, the bond is defective.  

The surety's assurance that it would honor the altered bid bond has no 
effect on the agency's determination that its bid bond was defective, 
because a material defect in a bid bond cannot be explained or 
affirmed after bid opening.  To permit this would place the surety in 
a position to disavow its obligation, thus compromising the integrity 
of the sealed bidding system by permitting the bidder to decide after 
bid opening whether or not to make its bid acceptable.  Southland 
Constr. Co., B-196297, Mar. 14, 1980, 80-1 CPD  para.  199.

The protest is denied.[1]

Comptroller General
of the United States

1. In its comments on the agency report, dated June 6, Carter argues 
that Pentzien cannot supply the dredge, "Jolly Rogers," which Pentzien 
listed in its bid, and that the dredge has a pump discharge of 18 
inches in diameter, not the 20-inch diameter Pentzien claimed in its 
bid.  This protest of Pentzien's bid is untimely.  Where, as here, 
bids are opened publicly, protesters are required to diligently review 
the bids shortly after bid opening.  This supplemental protest 
challenge to Pentzien's bid made in the protester's comments received 
on June 10, 27 days after bid opening, is untimely.  4 C.F.R.  sec.  
21.2(a)(2) (1996); NVT Technologies, Inc., B-256072; B-256072.2, May 
6, 1994, 94-1 CPD  para.  297; General Elevator Co., Inc.,--Recon., 
B-250289.2, Feb. 16, 1993, 93-1 CPD  para.  139.