Date: January 27, 1989

P.S. Protest No. 88-58

TOMPKINS & ASSOCIATES

Under Solicitation No. 489986-88-A-0412

ON RECONSIDERATION

Tompkins & Associates (Tompkins) has timely requested reconsideration of our December 30, 1988, decision which denied its protest. We found that its bid in response to a solicitation for removal of asbestos-containing materials from boilers and piping was properly rejected as nonresponsive because of a rider to the bid bond purporting to limit Tompkins' and its surety's liability in the event of nonperformance of the contract.

Tompkins asserts that we failed to recognize that the rider was applicable only to the bid bond and not to performance and payment bonds to be supplied under the contract. It also states that we did not address its argument that the bid bond includes all the requirements of the Miller Act 1 and that the bond should be read as conforming to Miller Act requirements notwithstanding the inclusion of language at variance with standard forms.

Our scope of review of a request for reconsideration is very limited. Reconsideration is not appropriate where the protester simply wishes us to draw from the argument and facts considered in the original protest decision conclusions different from those we reached in that decision. Fort Lincoln New Town Corporation, On Reconsideration, P.S. Protest No. 83-53, November 21, 1983.

Tompkins' argument that we failed to recognize that the rider is not applicable to the performance and payment bonds was already considered and rejected in the original decision. The decision was based on Tompkins' failure to promise, without qualification, to perform as required by the solicitation, including but not limited to the providing of payment and performance bonds. Thesecond paragraph of the rider limited the surety's and contractor's liability by constraining the time limits to bring suits for nonperformance. By its plain terms the rider qualified Tompkins' commitment to the solicitation's requirements. As we stated in our previous decision, post-opening explanations cannot be considered to correct a nonresponsive bid. Pease Management and Construction, Inc., P.S. Protest No. 86-68, October 24, 1986.

Tompkins' second argument, that the bid bond is to be construed as imposing all the requirements of the Miller Act, although not mentioned in the decision, was considered. The Miller Act is not the source of the bid bond requirement; the Act requires only performance and payment bonds. Therefore, the Miller Act and cases considering Miller Act payment or performance bonds, or payment and performance bonds under state statutes similar to the Miller Act, have no bearing on resolution of the responsiveness of Tompkins' bid. The solicitation required a bid bond, and Tompkins' submission of one that purported to limit its own and its surety's liability in the event of nonperformance qualified its bid and rendered it nonresponsive. See Universal Contracting, P.S. Protest No. 80-47, October 30, 1980.

On reconsideration, our decision is affirmed.

[Norman Menegat for:]
William J. Jones
Associate General Counsel
Office of Contracts and Property Law
[checked against original JLS 3/4/93]

1/The Miller Act, 40 U.S.C. ' 270a, et seq., requires payment and performance bonds for all construction contracts over $2,000.