BNUMBER:  B-274986
DATE:  January 10, 1997
TITLE:  Jay-Brant General Contractors

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Matter of:Jay-Brant General Contractors

File:     B-274986

Date:January 10, 1997

David M. Freeman, Esq., Wade & De Young, for the protester.
Col. Nicholas P. Retson, Maj. Peter D. P. Vint, and Capt. Kenneth G. 
Wilson, Department of the Army, for the agency.
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid found to include only a photocopy of the required bid bond was 
properly rejected as nonresponsive where the protester has not 
provided independent evidence to support its assertion that the 
original bond was included with its bid package submitted to the 
agency prior to bid opening and has not persuasively shown that the 
agency inadvertently substituted a photocopy of the original bind bond 
after bid opening.

DECISION

Jay-Brant General Contractors protests the rejection of its bid under 
invitation for bids (IFB) No. DAHC76-96-B-0016, issued by the 
Department of the Army, Fort Richardson, Alaska, for the replacement 
of heating systems in family housing at Fort Wainwright, Alaska.  The 
Army rejected Jay-Brant's bid as nonresponsive because the bidder 
submitted a photocopy of the required bid bond with its bid.  The 
protester contends that its bid in fact included an original bid bond, 
which it alleges was photocopied and then apparently misplaced by the 
agency after bid opening.

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 Army received seven bids by bid 
opening on
September 19.  No representative from Jay-Brant attended the bid 
opening (although the protester has provided affidavits from 
representatives of two other bidders who did attend).[1]  Jay-Brant's 
bid was the first to be opened and the bid opening official announced 
that Jay-Brant's bid bond was in the correct amount (20 percent).  The 
official did not comment about the absence of an original bid bond or 
state there were any problems with Jay-Brant's bid, either to those in 
attendance or on the abstract of offers.  After reviewing Jay-Brant's 
bid, the bid opening official returned the contents of Jay-Brant's bid 
to its original envelope, and proceeded with the opening of the other 
six bids.  There is no indication that any of the bidders examined 
Jay-Brant's bid at bid opening.

Although Jay-Brant submitted the apparent low bid, the Army rejected 
Jay-Brant's bid as nonresponsive on September 25 and awarded the 
contract to Western Mechanical, Inc.--the second low bidder--because, 
according to the Army's review, Jay-Brant failed to submit an original 
bid bond (with all seals affixed) with its bid.  Rather, the Army 
found that Jay-Brant's bid only included a photocopy of the bid bond 
consisting of a completed front page of a Standard Form 24 bid 
bond--the reverse side was not duplicated--and a photocopy of a power 
of attorney from Jay-Brant's surety.  Jay-Brant was notified that the 
agency rejected its bid as nonresponsive on October 1.  This protest 
followed.

The protester expressly denies having made the photocopy of its bid 
bond now in the bid file at the contracting office and attests that it 
included the original bid bond in its bid.  Jay-Brant asserts that the 
contracting office must have made a photocopy and somehow misplaced 
the original.

As evidence, the protester has provided an affidavit from the employee 
responsible for preparing the bid in which he states he included an 
original bid bond with Jay-Brant's bid and that it is his firm's 
standard office practice not to make copies of bid bonds.  The 
protester points out that the bid opening official completed and 
certified the abstract of offers showing that Jay-Brant had submitted 
the required
20-percent bid bond and that a photocopied bid bond should have been 
readily apparent to the bid opening officials, and announced and 
recorded.[2]  The protester states that following bid opening, 
Jay-Brant representatives contacted agency contracting officials 
several times about the status of contract award and were not informed 
that there was a problem with the bid bond but that the award was 
being processed.  According to the protester, when the agency's 
failure to note an obvious purported discrepancy at the bid opening is 
combined with the responses of agency contracting officials to 
subsequent inquiries from Jay-Brant regarding the status of contract 
award, our Office should conclude that Jay-Brant's original bid bond 
was included with its bid.

In explaining why the photocopy of Jay-Brant's bid bond was not 
discovered at bid opening, the bid opening official states in her 
affidavit that although she "vaguely" remembers something different 
about Jay-Brant's bid bond--"that the seals did not stand out on the 
document"--this is not information that would be commented upon during 
bid opening.  The agency states that bid opening officials do not 
perform a comprehensive review of the bids at bid opening.[3]  Rather, 
after bid opening, the official returns all opened bids to their 
original envelopes, places them into a file folder, inserts then into 
the main solicitation file, and safeguards them at her desk in the 
contracting office, which is accessible only to government personnel 
or those accompanied by government personnel.  According to the bid 
opening official, the bids were secured at her desk or were under her 
direct observation until September 23, when she turned the 
solicitation file over to another contracting official for a 
comprehensive review of the bids and for award processing.  The bid 
opening official states in her affidavit that she did not make any 
copies of Jay-Brant's bid bond.

The contracting official who conducted this more comprehensive review 
of the bids noted in her affidavit that although, at first glance, 
Jay-Brant's bid bond seemed in order, upon further examination, it was 
apparent that the bond was not an original, but was a photocopy.  
Further, she stated that the seals of the bidder and its surety, which 
normally appear on a bond, were not present on Jay-Brant's bid bond.  
The contracting official confirmed that Jay-Brant's bid bond was a 
photocopy by comparing it to an original bid bond that Jay-Brant 
submitted contemporaneously for another solicitation issued by the 
same contracting office.  The official then sought a legal opinion as 
to the sufficiency of Jay-Brant's bid, transmitted a facsimile copy to 
the legal office, and returned the bond to the file.  The contracting 
officer states that her office does not make copies of bid bonds 
unless seeking a legal opinion on the sufficiency of the bond, in 
which case they send a copy to the agency legal office, as was done 
here by facsimile transmission.[4]  The contracting officer and the 
other contracting officials responsible for this solicitation state 
that no copy of Jay-Brant's bid bond was otherwise made and that the 
photocopy of the bid bond in Jay-Brant's bid was the bid bond 
submitted with Jay-Brant's bid.

The determinative question in judging the sufficiency of a bid 
guarantee such as a bid bond 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.  Frank and Son Paving, 
Inc., B-272179, Sept. 5, 1996, 96-2 CPD  para.  106.  Photocopies of bid 
guarantee documents generally do not satisfy the requirement for a bid 
guarantee since there is no way, other than by referring to the 
original documents after bid opening, for the contracting agency to be 
certain that there had not been alterations to which the surety had 
not consented and could use as a basis to disclaim liability.  Id.; 
Morrison Constr. Serv., B-266233; B-266234, Jan. 26, 1996, 96-1 CPD  para.  
26.  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.

While the protester asserts that it submitted an original bid bond, 
the evidence it has submitted is insufficient to show that it did so 
or that the agency misplaced the original bid bond after bid opening 
and substituted a photocopy, as the protester alleges.  In light of 
the various statements contained in this record, the statement by the 
employee of the protester responsible for the bid that the original 
bid bond was submitted with the firm's bid, without independent 
corroborating evidence, simply does not establish that the original 
bid bond was submitted with the firm's bid.  See Secur-Data Sys., 
Inc., B-255090, Feb. 2, 1994, 94-1 CPD  para.  68; Zolman Constr. & Dev., 
Inc., B-247117, Mar. 13, 1992, 92-1 CPD  para.  284.

In this regard, 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 how bids were handled 
until a more comprehensive review of the bids could be performed).  
The fact that agency contracting officials did not mention a problem 
with the bid bond to the protester until after bid opening is not 
persuasive evidence, as the protester contends, that the agency must 
have lost the original bid bond, since the record shows that this 
delay in bringing the deficiency to Jay-Brant's attention was due to 
the fact that the bid was examined in a comprehensive manner for the 
first time several days after bid opening and to the agency's office 
policy of not commenting on a bidder's responsiveness until after 
award is made.  In short, the record does not permit the conclusion 
that in fact an original bid bond accompanied the protester's bid.  
That being, we cannot say that the agency's rejection of the bid was 
improper.  See Pacific Ventures Assocs., Inc., B-265878, Nov. 21, 
1995, 95-2 CPD  para.  236.

The protest is denied.

Comptroller General
of the United States

1. These representatives do not assert that they examined Jay-Brant's 
bid.

2. The protester notes that the day after bid opening, a competing 
bidder inspected Jay-Brant's bid in the presence of the bid opening 
official and neither the competitor, who was presumably looking for 
irregularities in Jay-Brant's bid, nor the bid opening official, 
noticed anything amiss with the bid bond.

3. The agency explains that bid opening officials do not make 
announcements concerning responsiveness at bid opening and that such 
information is not furnished in writing to the unsuccessful bidder 
until the contract is awarded.  In response to Jay-Brant's inquiries 
after bid opening, contracting officials state that they told 
Jay-Brant that bids were being evaluated.

4. The protester contends that the staple holes in the photocopy of 
its bid bond in the solicitation file are evidence that the 
contracting office makes copies of bid bonds.  A contracting official 
explains that before transmitting a copy of Jay-Brant's bid bond to 
the legal office via facsimile, she first unstapled the bid bond, and, 
upon returning it to the file, restapled it.