BNUMBER:  B-272179
DATE:  September 5, 1996
TITLE:  Frank and Son Paving, Inc.

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Matter of:Frank and Son Paving, Inc.

File:     B-272179

Date:September 5, 1996

William L. Bruckner, Esq., Bruckner & Walker, for the protester.
George N. Brezna, Esq., and Diane D. Hayden, Esq., Department of the 
Navy, for the agency.
Christine Davis, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid including only a photocopy of the required bid bond is 
nonresponsive.

DECISION

Frank and Son Paving, Inc. protests the rejection of its bid under 
invitation for bids (IFB) No. N68711-93-B-2285, issued by the 
Department of the Navy, Naval Facilities Engineering Command, for the 
repair and resurfacing of specified streets and parking lots on the 
Marine Corps Logistics Base, Barstow, California.  The Navy rejected 
Frank and Son's bid as nonresponsive because the bidder submitted a 
photocopy of the required bid bond with its bid.  The protester argues 
that the rejection of its bid for this reason was improper.

We deny the protest.

The IFB required bidders to submit with their bids a bid bond in the 
amount of 20 percent of the bid price.  The IFB authorized facsimile 
copies of any power of attorney attached to the bond.

The Navy received 14 bids at bid opening on April 3, 1996.  Frank and 
Son submitted the apparent low bid of $275,004.  Along with its bid, 
Frank and Son submitted photocopies of the required bid bond and power 
of attorney.[1]  The power of attorney appointed Michael E. Cundiff as 
attorney-in-fact for the surety, American Motorists Insurance Company, 
and Mr. Cundiff's signature appeared on the photocopied bid bond.  The 
surety's corporate seal was not visible on the photocopied documents.

The power of attorney contained a resolution adopted by the surety, 
which provided:

     "That the signature of the Chairman of the Board, the President, 
     any Vice President, or their appointees designated in writing and 
     filed with the Secretary, and the signature of the Secretary, the 
     seal of the Company, and certifications by the Secretary, may be 
     affixed by facsimile on any power of attorney or bond . . . and 
     any such power so executed, sealed, and certified with respect to 
     any bond or undertaking to which it is attached, shall continue 
     to be valid and binding upon the Company."

On May 17, the Navy rejected the protester's bid as nonresponsive 
because the photocopied bid bond "did not bear an original signature 
for the surety nor did it bear a corporate seal for the surety."  This 
protest followed.

The determinative question in judging the sufficiency of a bid 
guarantee is whether it could be enforced if the bidder subsequently 
fails to execute required contract documents and to provide 
performance and payment bonds.  Southern California Eng'g Co., Inc., 
B-232390, Oct. 25, 1988, 88-2 CPD  para.  391.  For the bid guarantee to be 
viewed as enforceable, the surety must appear to be clearly bound 
based on the information in the possession of the contracting officer 
at the time of bid opening.  The King Co. Inc., B-228489, Oct. 30, 
1987, 87-2 CPD  para.  423; Imperial Maintenance, Inc., B-224257, Jan. 8, 
1987, 87-1 CPD  para.  34.  In general, photocopied bid bonds and facsimile 
bid bonds (i.e., electronically transmitted copies) do not satisfy the 
requirement for a bid guarantee because there is no way, other than by 
referring to the original documents after bid opening, for the 
contracting agency to detect unauthorized alterations, which the 
surety could use as a basis to disclaim liability.   Bird Constr., 
B-240002; B-240002.2, Sept. 19, 1990, 90-2 CPD  para.  234.

Frank and Son asserts that, in this case, its surety clearly intended 
to be bound by a photocopied bid bond.  The protester claims that the 
power of attorney expressly provided that bid bonds bearing facsimile 
signatures--and, by implication, photocopied signatures--were 
sufficient to bind the surety.

The power of attorney in question provided that "signature[s] . . . 
designated in writing and filed with the [surety's] Secretary . . . 
may be affixed by facsimile on any power of attorney or bond."  
Although there is some implication to the contrary in Ray Ward Constr. 
Co., B-256374, June 14, 1994, 94-1 CPD  para.  367 and Services Alliance 
Sys., Inc., B-255361, Feb. 22, 1994, 94-1 CPD  para.  137, we do not view 
the phrase "affixed by facsimile" as referring to facsimile or 
photocopied documents, but rather to signatures produced by mechanical 
means, for example, stamped, printed, or typewritten signatures.  See 
Morrison Constr. Servs., B-266233; B-266234, Jan. 26, 1996, 96-1 CPD  para.  
26; Global Eng'g, B-250558, Jan. 11, 1993, 93-1 CPD  para.  31.  In other 
words, the phrase "affixed by facsimile" refers to signatures created 
by facsimile, not to signatures transmitted by facsimile.

The same interpretation applies to the instant power of attorney.  The 
power of attorney provided for original signatures to be "designated 
in writing and filed" with the surety's secretary and to be "affixed" 
or mechanically reproduced by the surety on an original bid bond 
document.  The language does not reasonably suggest that the surety 
consented to be bound by bid bonds which, after leaving the surety's 
hands, had been photocopied or transmitted by facsimile.

The protester argues that this case is distinguishable from Morrison 
Constr. Servs., supra, and Global Eng'g, supra, because, in those 
cases, the bid documents authorizing signatures "affixed by facsimile" 
were stated to be valid only if the documents' serial number appeared 
in red, which effectively invalidated facsimile or photocopied 
documents.  Because no similar condition appeared in the power of 
attorney submitted with its bid, Frank and Son argues that the phrase 
"affixed by facsimile" should be construed to extend to facsimile or 
photocopied bid bonds.

We disagree.  As stated above, the instant power of attorney clearly 
authorized only the mechanical reproduction of signatures on file with 
the surety's secretary.  Because the power of attorney did not 
expressly extend the surety's liability to facsimile or photocopied 
bid bonds, uncertainty existed as to the enforceability of the bond 
submitted with Frank and Son's bid.  As a result of this uncertainty, 
the protester's bid was nonresponsive and was properly rejected.

The protester finally argues that the IFB, by authorizing the use of 
facsimile powers of attorney, implied to bidders that facsimile or 
photocopied bid bonds were also acceptable.  This argument has no 
merit.  Not only does the provision in question only mention powers of 
attorney, but facsimile bid bonds are generally not permissible in any 
case because of the potential for unauthorized alterations.  Bird 
Constr., supra. 

The protest is denied.

Comptroller General
of the United States
f:\projects\pl\272179.wp5

1. Frank and Son states that it received facsimile copies of the bid 
bond and power of attorney from its surety, which it photocopied and 
submitted with its bid.