48 C.F.R. § 28.101-4

28.101-4 Noncompliance with bid guarantee requirements.

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(a) In sealed bidding, noncompliance with a solicitation requirement for a bid guarantee requires rejection of the bid, except in the situations described in paragraph (c) of this subsection when the noncompliance shall be waived.

(b) In negotiation, noncompliance with a solicitation requirement for a bid guarantee requires rejection of an initial proposal as unacceptable, if a determination is made to award the contract based on initial proposals without discussion, except in the situations described in paragraph (c) of this subsection when noncompliance shall be waived. (See 15.306(a)(2) for conditions regarding making awards based on initial proposals.) If the conditions for awarding based on initial proposals are not met, deficiencies in bid guarantees submitted by offerors determined to be in the competitive range shall be addressed during discussions and the offeror shall be given an opportunity to correct the deficiency.

(c) Noncompliance with a solicitation requirement for a bid guarantee shall be waived in the following circumstances unless the contracting officer determines in writing that acceptance of the bid would be detrimental to the Government's interest when—

(1) Only one offer is received. In this case, the contracting officer may require the furnishing of the bid guarantee before award;

(2) The amount of the bid guarantee submitted is less than required, but is equal to or greater than the difference between the offer price and the next higher acceptable offer;

(3) The amount of the bid guarantee submitted, although less than that required by the solicitation for the maximum quantity offered, is sufficient for a quantity for which the offeror is otherwise eligible for award. Any award to the offeror shall not exceed the quantity covered by the bid guarantee;

(4) The bid guarantee is received late, and late receipt is waived under 14.304;

(5) A bid guarantee becomes inadequate as a result of the correction of a mistake under 14.407 (but only if the bidder will increase the bid guarantee to the level required for the corrected bid);

(6) An otherwise acceptable bid bond was submitted with a signed offer, but the bid bond was not signed by the offeror;

(7) An otherwise acceptable bid bond is erroneously dated or bears no date at all; or

(8) A bid bond does not list the United States as obligee, but correctly identifies the offeror, the solicitation number, and the name and location of the project involved, so long as it is acceptable in all other respects.

[54 FR 48985, Nov. 28, 1989, as amended at 60 FR 34739, July 3, 1995; 62 FR 51271, Sept. 30, 1997; 81 FR 83099, Nov. 18, 2016]

Notes of Decisions

Cited in 7 cases, 1989–2010 · leading case: Radva Corp. v. United States, 17 Cl. Ct. 812 (Ct. Cl. 1989).

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Radva Corp. v. United States, 17 Cl. Ct. 812 (Ct. Cl. 1989). · cites it 3× “The contention that 48 C.F.R. § 28.101-4 (a) required the contracting officer to allow a bidder up until the time of award to secure adequate bonding finds support neither in the plain language of that provision nor in any case or Comptroller General opinion construing it.”

A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126 (Fed. Cl. 2006). “48 C.F.R. § 28.101-4 (b). Task orders issued pursuant to FAR 16.”

Interstate Rock Prods., Inc. v. United States, 50 Fed. Cl. 349 (Fed. Cl. 2001). · cites it 3× “” Title 48 C.F.R. § 28.101-4 provides that in sealed bidding “noncompliance with a solicitation requirement for a bid guarantee requires rejection of the bid, except in the situations described in paragraph (c) of this subsection when the noncompliance shall be waived.”

Davis/HRGM Jt. Venture v. United States, 50 Fed. Cl. 539 (Fed. Cl. 2001). “48 C.F.R. § 28.101-4 (c). None of the exceptions apply in this case.”

Bilfinger Berger AG Sede Secondaria Italiana v. United States, 97 Fed. Cl. 96 (Fed. Cl. 2010). “13 (citing 48 C.F.R. § 28.101-4 (b)). Since A & D did not submit any bid bond, it lacked standing to bring the protest.”

Prof'l Bldg. Concepts, Inc. v. City of Cent. Falls, 974 F.2d 1 (1st Cir. 1992). “812 (1989) (quoting 48 C.F.R. § 28.101-4 ), aff'd, 914 F.2d 271 (Fed.”

Prof'l Bldg. Concepts, Inc. v. City of Cent. Falls Hous. Auth., 783 F. Supp. 1558 (D.R.I. 1992). “1990) (quoting 48 C.F.R. 28.101-4). The regulations further state that “failure to furnish a bid guarantee in the proper form and amount, by the time set for opening of the bids, may be cause for rejection of the bid.”

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