BNUMBER:  B-265878
DATE:  November 21, 1995
TITLE:  Pacific Ventures Associates, Inc.

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Matter of:Pacific Ventures Associates, Inc.

File:     B-265878

Date:     November 21, 1995

Michael H. Ferring, Esq., Jeffery, Ferring & Jenkel, for the 
protester.
Sherry Kinland Kaswell, Esq., Department of the Interior, for the 
agency.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid which did not include required power of attorney was properly 
rejected, despite the fact that omission was not discovered until 
approximately 2 weeks after bid opening, when bid first received a 
comprehensive review by agency prior to award.  Bidder's assertion, 
supported by employees' affidavits, that power of attorney was 
included with its bid package prior to bid opening is insufficient to 
show that bid, as submitted, included the power of attorney. 

DECISION

Pacific Ventures Associates, Inc. protests the rejection of its bid 
under invitation for bids (IFB) No. 1425-5-SI-10-06830, issued by the 
Department of the Interior, Bureau of Reclamation, for safety and fire 
protection enhancement of the Left Powerplant, Grand Coulee Power 
Office, Columbia Basin Project, Washington.  The agency determined 
that the bid was nonresponsive because a comprehensive review of the 
bid almost 2 weeks after bid opening revealed that the required bid 
bond was not accompanied by a power of attorney evidencing the 
authority of the attorney-in-fact to sign the bond on the surety's 
behalf.

We deny the protest.

The solicitation, issued on January 27, 1995, required bidders to 
submit, along with their bids, a bid bond for 20 percent of the bid 
price.  Pacific Ventures was the apparent low bidder at bid opening on 
June 29.  Approximately 2 weeks after bid opening, the contract 
specialist conducted a comprehensive review of the bid for 
completeness prior to award and noticed that the protester's bid did 
not include the required power of attorney.  After the agency's legal 
review of the omission issue, on July 18, Pacific Ventures was 
notified that the agency rejected its bid as nonresponsive.  On July 
24, Pacific Ventures filed an agency-level protest of that 
determination, stating that the power of attorney was included with 
its bid package submitted prior to bid opening; the agency denied that 
protest by letter of 
August 23.  This protest followed.

Pacific Ventures states that the power of attorney was included with 
its bid and, in support of that claim, provides affidavits from two of 
its employees responsible for the firm's bid submission stating that 
the requisite document was submitted with the bid.  The protester also 
provides a statement from the attorney-in-fact for the surety listed 
on the protester's bid bond, asserting that the power of attorney was 
provided to the protester as an attachment to the bid bond executed by 
him for the protester in connection with the IFB.  (The 
attorney-in-fact does not state that he has personal knowledge that 
the power of attorney was submitted with the firm's bid.)  Pacific 
Ventures also states that it communicated with the agency about the 
project (e.g., regarding small business status and funding) during the 
2 weeks after bid opening, and that the fact that the omission of the 
power of attorney was not raised during that time period shows that 
the power of attorney was properly submitted but must have been lost 
by the agency after bid opening.

The agency responds that at bid opening, bids were marked with an 
adhesive tab on the bid form (Standard Form (SF) 1442), the bid bond 
(SF 24), and the last page of the bid schedule (for ease in locating 
the information for each bid to be announced at bid opening); the 
bids, however, were not thoroughly reviewed at that time for 
completeness.  Each bid submission was clipped (then stapled) 
together, including the bid package's envelope, and placed in a file 
which remained in the contract specialist's office.  The contract 
specialist states that her comprehensive review of the protester's bid 
in anticipation of award was conducted approximately 2 weeks after bid 
opening--during that review, the contract specialist discovered that 
there was no power of attorney included with Pacific Ventures's bid, 
but there were two original bid bonds (SF 24).

The determinative issue concerning the acceptability of a bid bond is 
whether, in the event of a default by the bidder, the contracting 
agency could be certain that the surety would be bound, based on the 
information in possession of the contracting agency at the time of bid 
opening.  Executone Info. Sys., Inc.,  
B-246155, Oct. 21, 1991, 91-2 CPD  353.  If the agency cannot 
determine definitely from the documents submitted with the bid that 
the surety would be bound, such as where the bid package omits a 
required power of attorney, the bid is nonresponsive and must be 
rejected.  Global Eng'g, B-250558, Jan. 11, 1993, 93-1 CPD  31.  In 
these circumstances, the bond deficiency may not be cured by 
submitting the original bond documents (including the power of 
attorney) after bid opening because this would essentially provide the 
bidder with the option of accepting or rejecting the award by either 
correcting or not correcting the bond deficiency, which is 
inconsistent with the sealed bidding system.  Id.

The protester has submitted insufficient evidence to show that the 
required power of attorney was in fact submitted with its bid and that 
the agency lost the power of attorney after bid opening.  The evidence 
furnished by the protester consists of statements of its own 
employees--that the power of attorney was properly submitted--and a 
statement of the surety's attorney-in-fact--that only suggests that 
the power of attorney was furnished to the bidder, but does not 
provide independent evidence that the power of attorney was submitted 
with the firm's bid.  The statements by the employees of the firm, 
without independent corroborating evidence, do not establish that the 
power of attorney was submitted with the firm's bid.  See Secur-Data 
Sys., Inc., B-255090, Feb. 2, 1994, 94-1 CPD  68; Zolman Constr. & 
Dev., Inc., B-247117, Mar. 13, 1992, 92-1 CPD  284.  

The agency has explained in detail its procedures concerning the 
limited review of the bids at bid opening and the careful handling of 
the bid documents (including clipping and then stapling the documents 
for filing until a more comprehensive review of the bids was to be 
conducted) which, in light of the protester's lack of independent 
corroborating evidence, renders unpersuasive the protester's 
contention that the power of attorney was received and subsequently 
lost.  The fact that the contract specialist first mentioned the 
omission of the power of attorney approximately 2 weeks after bid 
opening is not persuasive evidence, as the protester contends, that 
the agency must have lost the power of attorney after bid opening.  
Rather, the record adequately shows that this delay in bringing the 
deficiency to Pacific's attention was due to the fact that the bid was 
examined in a comprehensive manner for the first time 2 weeks after 
bid opening.  The agency's rejection of the bid therefore was proper.  

The protest is denied.

Comptroller General
of the United States