BNUMBER:  B-278042 
DATE:  November 10, 1997
TITLE: Brothers Construction Company, Inc., B-278042, November 10,
1997
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Matter of:Brothers Construction Company, Inc.

File:     B-278042

Date:November 10, 1997

Philip Chung, Esq., Chung & Press, for the protester.
Madeline Shay, Esq., Office of the Chief of Engineers, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where power of attorney certificate attached to bid bond is endorsed 
with a facsimile, rather than an original, signature of surety's 
authorized representative, bond is defective and renders bid 
nonresponsive, even though certificate was embossed with surety's 
raised corporate seal; corporate seal is prima facie evidence that 
power of attorney is an authorized act but, since it does not 
expressly evidence surety's intent to be bound in the absence of the 
original signature of its authorized representative, it is not 
sufficient to render bond acceptable.

DECISION

Brothers Construction Company, Inc. protests the rejection of its 
apparent low bid as nonresponsive for lack of a valid bid bond, under 
invitation for bids (IFB)      No. DACW31-97-B-0050, issued by the 
U.S. Army Corps of Engineers, for the removal and replacement of an 
existing roof, and other related services, for the Dalecarlia Pumping 
Station located in Washington, D.C.  Brothers contends that the Army 
unreasonably concluded that its bid bond was defective.

We deny the protest.  

The solicitation required bidders to submit a bid guarantee.  Brothers 
submitted a bid bond signed by Justin R. Klein as attorney-in-fact for 
Greenwich Insurance Company, the surety.  Accompanying the bid bond 
was a power of attorney, which was divided into three parts.[1]  In 
part I, executed by Laura A. Shanahan in her capacity as vice 
president of Greenwich, Justin R. Klein was appointed as 
attorney-in-fact, with the power to execute bonds on behalf of the 
company.  In part II, a notary authenticated Ms. Shanahan's signature.  
Part III, executed by Cathy A. Hauck in her capacity as second vice 
president and associate general counsel of Greenwich, certified that 
Ms. Shanahan had authority to appoint attorneys-in-fact for the 
purpose of making bonds on behalf of Greenwich, and that the power of 
attorney was still in full force and effect.  The signature on the 
certificate is that of Ms. Hauck, but it is a facsimile, rather than 
an original, signature; there also is a facsimile imprint of the 
corporate seal on the left side of the signature, and an original, 
raised corporate seal of Greenwich next to the signature at the lower 
right hand corner.  The Corps rejected the protester's bid as 
nonresponsive for lack of an original signature on the power of 
attorney, or language stating the surety would be bound by a facsimile 
signature.   

A bid bond, a form of bid guarantee, is designed to protect the 
government's interest in the event of default.  A bid bond is a 
material requirement of an IFB with which there must be compliance at 
the time of bid opening; when a bid includes a defective bond, the bid 
itself is rendered defective and must be rejected as nonresponsive.  
Ray Ward Constr. Co., B-256374, June 14, 1994, 94-1 CPD  para.  367 at 2.  A 
bond is acceptable, and the bid is responsive, only if the agency can 
determine definitely from the documents submitted with the bid that 
the bond would be enforceable against the surety should the bidder 
fail to meet its obligations.  A bond submitted with an invalid power 
of attorney may render the bid nonresponsive because a power of 
attorney authorizes the agent to act for the principal and only a 
valid power of attorney would indicate that the surety expressly 
agreed to be bound to pay the bond signed by the attorney-in-fact.  
Id.  In this regard, in the absence of other evidence submitted with 
the bid that the surety will be bound by a facsimile signature, a 
power of attorney which is submitted with a facsimile (electronically 
produced, see Fiore Constr. Co., B-256429, June 23, 1994, 94-1 CPD  para.  
379 at 2-3, or electronically transmitted, see Ray Ward Constr. Co., 
supra, at 3-4), rather than an original, signature is invalid, and 
renders a bond unacceptable.  Id. at 3.  A statement included with the 
power of attorney that the surety fully intends to be bound by a 
facsimile or mechanically reproduced signature is considered 
sufficient to show the surety's intent to be bound.  Id. at 4.

Brothers maintains that, even though its bond lacked an original 
signature and a statement that the surety intended to be bound by a 
facsimile signature, the raised corporate seal was sufficient to 
render the bond, and therefore the bid, acceptable.  In this regard, 
Brothers cites decisions in which our Office has recognized that a 
raised corporate seal is prima facie evidence of the authenticity of 
an instrument, and that an instrument is the duly authorized act of 
the corporation.  See Ray Ward Constr. Co., supra, at 4; Daley 
Corp.--California Commercial Asphalt Corp., J.V.,        B-274203.2, 
Dec. 9, 1996, 96-2 CPD  para.  217 at 4.  However, while the raised 
corporate seal does constitute evidence of authenticity of a bond, it 
is not a substitute for a statement that the surety intends to be 
bound by a facsimile signature; it does not rise to the level of an 
express indication that the surety intends to be bound by the bond 
even without the original signature of its authorized representative.  
We have never held otherwise.  In the cases cited by the protester, 
the powers of attorney  included language indicating that the surety 
would be bound by a facsimile signature.  The presence of an original 
corporate seal was merely additional evidence supporting the 
authenticity of the power of attorney. 

We conclude that the surety's intent to be bound by the bond was not 
sufficiently established in the protester's bid, and that the bid 
therefore properly was rejected as nonresponsive.

The protest is denied.

Comptroller General
of the United States

1. A power of attorney is evidence that the named attorney-in-fact is 
authorized to sign the bid bond on the surety's behalf, binding the 
surety to its terms.