BNUMBER:  B-272430
DATE:  October 8, 1996
TITLE:  R.P. Richards, Inc.

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Matter of:R.P. Richards, Inc.

File:     B-272430

Date:October 8, 1996

C. Patrick Stoll, Esq., Herrig & Vogt, for the protester.
Kev Kutina, for Godot Enterprises, Inc., an intervenor.
Alan P. Shapiro, Esq., and Mary B. Workman, Department of the Army, 
for the agency.
Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Facsimile copy of a bid bond is of questionable enforceability and 
renders bid nonresponsive; since responsiveness cannot be established 
after bid opening, the defect in the bond cannot be cured by the 
bidder's submission of the original bid bond and other information 
subsequent to bid opening.

DECISION

R.P. Richards, Inc. protests the rejection of its bid as 
nonresponsive, and the award of a contract to Godot Enterprises, Inc., 
under invitation for bids (IFB) No. DACA05-96-B-0042, issued by the 
U.S. Army Corps of Engineers for the construction of a dormitory at 
Luke Air Force Base, Arizona.

We deny the protest.

The IFB required the submission of a bid guarantee in the amount of 20 
percent of the bid price, not to exceed $3 million.  Although Richards 
submitted the apparent low bid, its bid was rejected as nonresponsive, 
and award was made to Godot--the second low bidder--because Richards 
submitted a facsimile copy of its bid bond.  Richards argues that its 
bid should not have been rejected under the circumstances here.

A bid bond is a form of bid guarantee designed to protect the 
government's interest in the event of default; if a bidder fails to 
honor its bid in any respect, the bid bond secures a surety's 
liability for all reprocurement costs.  Morrison Constr. Servs.,     
B-266233; B-266234, Jan. 26, 1996, 96-1 CPD  para.  26.  A requirement for a 
bid bond is a material IFB term with which there must be compliance at 
the time of bid opening; when a bidder submits a defective bid bond, 
the bid itself is defective and must be rejected as nonresponsive.  
Id.  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 the surety would be bound, based 
on the information in the agency's possession at the time of bid 
opening.  Bird Constr., B-240002; B-240002.2, Sept. 19, 1990, 90-2 CPD  para.  
234.  If the agency cannot determine definitely from the documents 
submitted with the bid that the surety would be bound, the bid is 
nonresponsive and must be rejected.  Global Eng'g, B-250558, Jan. 11, 
1993, 93-1 CPD  para.  31.

Facsimile copies of bid bonds generally do not satisfy the requirement 
for a bid guarantee because there is no way for the contracting agency 
to be certain from examining a copy--other than by referring to the 
original after bid opening--whether the original has been altered 
without the surety's knowledge or consent.  If the surety has not 
agreed to the terms as they appear in the facsimile copy of the bond, 
the surety's liability under the bond may be in doubt.  Regional Dev. 
Corp.--Recon.; Ware's Van & Storage Co., Inc.--Recon., B-251299.2; 
B-251431.2, Mar. 16, 1993, 93-1 CPD  para.  238; Executone Info. Sys., Inc., 
B-246155, Oct. 21, 1991, 91-2 CPD  para.  353.  

Richards maintains that its bid bond was acceptable because a 
comparison of the facsimile to the original bond, which it submitted 
to the agency after bid opening, shows that the facsimile in fact 
contained no alterations.  Richards also has submitted a sworn 
statement from a director of the surety, stating that the surety 
intended to be bound by the facsimile signature, a sworn statement 
from the attorney-in-fact that he intended his facsimile signature on 
the bond to bind the surety, and a statement from the protester's 
employee who submitted the bid that he did not alter the bond 
documents.  All of this evidence was presented to the agency after bid 
opening, and thus cannot form the basis for finding the bid bond 
acceptable or the bid responsive.  Again, the acceptability of a bid 
bond (and responsiveness generally) must be determined from the face 
of the bid at the time of bid opening.  The deficiency in a bond 
cannot be cured by submitting the original bond documents, or other 
evidence, 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.  Regional Dev. 
Corp.--Recon.; Ware's Van & Storage Co., Inc.--Recon., supra.

Richards claims that it made reasonable efforts to submit the original 
bid documents by bid opening, that it informed the agency that it 
would not be able to do so, and that the agency told Richards to 
submit the documents by telefacsimile to a Richards employee, who then 
would hand carry them to the contracting office.  Richards's efforts 
to submit the original bond and the agency's willingness to 
accommodate Richards have no relevance here.  Bidders are responsible 
for delivering their bids to the proper place at the proper time, 
J.C.N. Constr. Co., Inc., B-270068; B-270068.2, Feb. 6, 1996, 96-1 CPD  para.  
42, and their failure to timely submit all bid documents can be 
excused only in accordance with the late bid provisions in the IFB.  
See Federal Acquisition Regulation  sec.  14.304-1.  As there is no 
argument or evidence that the original bond documents fall within the 
late bid exception, the original documents cannot be considered as 
part of Richards's bid for purposes of determining the acceptability 
of its bid bond, no matter the effort made to timely submit them.[1]

Richards argues that contracting officials had sufficient information 
at bid opening to be certain that the surety would be bound:  a valid 
power of attorney; a certificate confirming that the power of attorney 
was still in effect on June 10, 1996, the date of execution on the 
facsimile copy of the bond; and a copy of a notary acknowledgment 
attesting to the signature of the attorney-in-fact on a bid bond on 
June 10, 1996, which was also signed by the protester's principal.  
Further, Richards argues, since the bid package was mailed out on June 
11, and ultimately was transmitted by telefacsimile on June 12 to the 
Richards employee who hand-delivered the bid, there was a link between 
the documents that precluded sufficient time or reason for alteration.  
In any case, Richards asserts, there was nothing material on the bid 
bond that could have been altered.  

We do not agree that the agency possessed information at bid opening 
sufficient to establish the surety's liability.  As discussed, there 
was no way for the agency to determine from the bid documents whether 
the bond had been altered after being signed.  In this regard, even 
accepting Richards's version of events, 2 days passed between the 
execution of the bid bond and the submission of the facsimile copy to 
the government; obviously, alteration of the facsimile copy was 
possible within that time.  Contrary to Richards's assertion, 
furthermore, there were several material elements of the bond which 
could have been altered, including the solicitation number and the 
penal amount of the bond.  We conclude that the agency properly 
rejected Richards's bid as nonresponsive.  

The protest is denied.

Comptroller General
of the United States

1. To the extent Richards may be arguing that it did not attempt 
timely submission of the original bond documents due to the agency's 
indication that the facsimile would be sufficient, we note that 
Richards does not specifically claim that it was told that a facsimile 
copy would be acceptable.  In any case, oral advice from government 
officials does not bind the government and a bidder relies on such 
advice at its own risk.  Selrico Servs., Inc., B-259709.2, May 1, 
1995, 95-1 CPD  para.  224.