BNUMBER:  B-278341 
DATE:  December 24, 1997
TITLE: Bio-Nomic Services, Inc., B-278341, December 24, 1997
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Matter of:Bio-Nomic Services, Inc.

File:     B-278341

Date:December 24, 1997

Donald J. Walsh, Esq., Scaldara & Potler, L.L.P., for the protester.
Col. Nicholas P. Retson and Capt. Christopher Hellmich, Department of 
the Army, for the agency.
Adam Vodraska, Esq., and James Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

A bid accompanied by a bid bond listing the principal as incorporated 
in a different state than the nominal bidder was properly rejected as 
nonresponsive because the obligation of the surety is unclear where 
the legal entity on the bid and the legal entity shown on the bid bond 
are not the same.

DECISION

Bio-Nomic Services, Inc. protests the award of a contract to Waste 
Management Industrial Services, Inc. under invitation for bids (IFB) 
No. DABT31-97-B-0041, issued by the Department of the Army for sludge 
removal and dewatering from the sedimentation pond at the Ft. Leonard 
Wood, Missouri, water treatment plant.
Bio-Nomic contends that the Army improperly rejected its bid as 
nonresponsive.

We deny the protest.

The Army received three bids in response to the IFB, which required 
bidders to submit a bid bond in the amount of 20 percent of the bid 
price.  The contracting officer rejected the low bid as nonresponsive 
because that bidder failed to provide the required bid bond.  The 
apparent second low bid was from the protester, identified on the 
bid's cover page as Bio-Nomic Services, Inc., with a Charlotte, North 
Carolina business address.  Elsewhere in its bid, the protester 
represented that it operates as a corporation incorporated under the 
laws of the state of Illinois.  With its bid, the protester submitted 
a bid bond issued by a corporate surety for the requisite amount.  The 
bid bond identified the principal as Bio-Nomic Services, Inc., at the 
same North Carolina business address as on the bid, but listed the 
principal as a corporation incorporated in the state of North 
Carolina.  The bid bond was imprinted with the principal's corporate 
seal stating "Bio-Nomic Services, Inc. North Carolina."

The contracting officer contacted Bio-Nomic after bid opening to 
establish in which state--Illinois or North Carolina--the firm was 
actually incorporated.  In response, Bio-Nomic confirmed that it is 
incorporated in Illinois.  It then submitted a revised bid bond 
without a corporate seal and changed the state of incorporation listed 
on the bond to Illinois.  The contracting officer thereafter rejected 
Bio-Nomic's bid as nonresponsive because the legal entity identified 
as the bidder was not identical to the legal entity named as the 
principal on the original bid bond.  Award was made to Waste 
Management Industrial Services, Inc., the remaining bidder.  
Bio-Nomic's protest of the rejection of its bid followed.

The submission of a required bid bond is a material element of a bid 
which affects its acceptability.  The sufficiency of a bid bond 
depends on whether the surety is clearly bound by its terms at the 
time of bid opening; when the liability is not clear, the bond is 
unacceptable, and the bid must be rejected as nonresponsive.  Design 
for Health, Inc., 69 Comp. Gen. 712, 714 (1990), 90-2 CPD  para.  213 at 3; 
Reliable Elec. Constr., Inc., B-250092, Sept. 23, 1992, 92-2 CPD  para.  198 
at 2.  This rule is prompted by the rule of suretyship that no one 
incurs a liability to pay the debts of another unless he expressly 
agrees to be bound.  A.D. Roe Co., Inc., 54 Comp. Gen. 271, 273 
(1974), 74-2 CPD  para.  194 at 4; The Scotsman Group, Inc., B-245634, Jan. 
13, 1992, 92-1 CPD  para.  57 at 3.  For this reason, the principal listed 
on the bid bond must be the same legal entity as the nominal bidder 
since there is doubt whether a bid bond that names a principal 
different from the nominal bidder clearly binds the surety.  A.D. Roe 
Co., Inc., supra, at 4.  Such a discrepancy between the bid bond 
principal and nominal bidder may not be waived as a minor informality 
or be corrected after bid opening.  Design for Health, Inc., supra, at 
4; Mount Diablo Corp., Inc., B-228193, Nov. 10, 1987, 87-2 CPD  para.  475 
at 1-2.

We agree with the Army that Bio-Nomic's bid was nonresponsive because 
the discrepancy between the nominal bidder's state of incorporation 
shown in the bid and the principal's state of incorporation shown in 
the bid bond evidences that the legal entity named in the bid may be 
different from the entity named in the bid bond.  While the nominal 
bidder and the bid bond principal have the same name and address, the 
bid bond clearly obligates the surety on behalf of a principal 
incorporated in the state of North Carolina.[1]  While the protester 
now claims that there is no North Carolina corporation by this name, 
but only the Illinois corporation, we think that there is doubt 
whether the surety's obligation would extend beyond its obligation on 
behalf of a North Carolina corporation, and that the contracting 
agency could not be certain that the surety would be bound by the 
terms of the bid bond in the event of a default by the bidder.  See 
Design for Health, Inc., supra, at 4; The Scotsman Group, Inc., supra, 
at 3.

In its comments on the agency report, the protester challenges the 
responsiveness of the awardee's bid.  We dismiss this allegation as 
untimely.  Where, as here, bids are opened publicly, protesters are 
required to make some diligent effort to review the bids shortly after 
bid opening, and may not, as here, wait to review the awardee's bid in 
the agency report.  Products for Indus., B-257463, B-257463.2, Oct. 6, 
1994, 94-2 CPD  para.  128 at 3-4; Thomas May Constr. Co., B-255683, Mar. 
23, 1994, 94-1 CPD  para.  210 at 2. 

The protest is denied.

Comptroller General
of the United States

1. The corporate imprint "Bionomic Services, Inc. North Carolina" on 
the bid bond also suggests that the surety's obligation is on behalf 
of a North Carolina corporation.