TITLE:  All Seasons Construction, Inc., B-291166.2, December 6, 2002
BNUMBER:  B-291166.2
DATE:  December 6, 2002
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All Seasons Construction, Inc., B-291166.2, December 6, 2002

   Decision
    
    
Matter of:   All Seasons Construction, Inc.
    
File:            B-291166.2
    
Date:              December 6, 2002
    
Donald A. Tobin, Esq., and Nick R. Hoogstraten, Esq., Bastianelli, Brown &
Kelley, for the protester.
Andrew J. Kilpatrick, Jr., Esq., Gore, Kilpatrick, Purdie, Metz & Adcock,
for Witherington Construction Corp., an intervenor.
Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the
agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
    
Contracting officer reasonably determined bid bond accompanied by power of
attorney bearing computer printer-generated signatures unacceptable
because signatures were not applied to the document after its creation and
thus do not serve to authenticate its contents.
DECISION
    
All Seasons Construction, Inc. protests the rejection of its low bid under
invitation for bids (IFB) No. 667-29-02, issued by the Department of
Veterans Affairs (VA) for the construction of operating rooms at the
Overton Brooks VA Medical Center in Shreveport, Louisiana.  The
contracting officer rejected All Seasons' bid as nonresponsive based on
her determination that neither the power of attorney attached to the
protester's bid bond nor the accompanying certification attesting to the
authenticity of the power of attorney and its continuing effectiveness was
an original document.  The protester contends that the document containing
the power of attorney and certification was an original, and that the bid
should therefore have been accepted.
    
We deny the protest.
    
The IFB required each bidder to submit with its bid a bid guarantee in the
amount of 20 percent of the bid price or $3 million, whichever was less. 
IFB S: 4.26.  Four bids were received and opened on the August 20, 2002
bid opening date.  All Seasons was the apparent low bidder with a bid of
$3,361,000.  Witherington's bid was second low.
    
All Seasons' bid was accompanied by a bid bond signed by David A.
Montgomery as attorney-in-fact for the surety, Hartford Casualty Insurance
Company.  The surety's corporate seal was crimped next to Mr. Montgomery's
signature.  A power of attorney appointing Mr. Montgomery as
attorney-in-fact for Hartford Casualty Insurance Company was attached to
the bid bond.  The power of attorney, which affirmed the intention of the
Company to be bound *by any mechanically applied signatures applied to
this Power of Attorney,* did not contain any ink signatures and was not
crimped with the surety's corporate seal.
    
At the bottom of the power of attorney, there appeared the following
statement:
    
I, the undersigned, Assistant Vice President of the Companies, DO HEREBY
CERTIFY that the above and foregoing is a true and correct copy of the
Power of Attorney executed by said Companies, which is still in full force
effective as of August 9, 2002.
    
Signed and sealed at the city of Hartford.
    
                                       [Signature of Colleen Mastroianni]
Colleen Mastroianni, Assistant Vice President
    
The date August 9, 2002 was in a different size type than the rest of the
document and had clearly been inserted after the document had been
generated.  The signature of Colleen Mastroianni beneath the certification
was not in ink, and the certification was not crimped with the surety's
corporate seal.
    
The contracting officer determined that the document containing the power
of attorney and certification was not an original, and, thus, that it did
not establish unequivocally at the time of bid opening that the bond would
be enforceable against the surety in the event that the bidder failed to
meet its obligations.  Accordingly, she rejected All Seasons' bid as
nonresponsive.
    
A bid bond is a form of guarantee designed to protect the government's
interest in the event of default; that is, if a bidder fails to honor its
bid in any respect, the bid bond secures a surety's liability for all
reprocurement costs.  A required bid bond is a material condition of an
IFB with which there must be compliance at the time of bid opening; when a
bidder submits a defective bid bond, the bid itself is rendered defective
and must be rejected as nonresponsive.  The determinative question as to
the acceptability of a bid bond is whether the bid documents, including
the power of attorney appointing an attorney-in-fact with authority to
bind the surety, establish unequivocally at the time of bid opening that
the bond is enforceable against the surety should the bidder fail to meet
its obligations.  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.  Schrepfer Indus., Inc.,
B-286825, Feb. 12, 2001, 2001 CPD P: 23 at 2.  Unless accompanied by an
original certification from a current officer of the surety attesting to
its authenticity and continuing validity, a photocopied power of attorney
does not satisfy the requirement for a clearly enforceable guarantee
because there is no way, other than by referring to the original after bid
opening, to be certain that there have not been alterations to which the
surety has not consented.  Id. at 2-3; Daley Corp.--California Commercial
Asphalt Corp., J.V., B-274203.2, Dec. 9, 1996, 96-2 CPD P: 217 at 3-4. 
The same is true of a faxed power of attorney (that is, an electronically
transmitted copy of a power of attorney).  Kemper Constr. Co., Inc.,
B-283286.2, Nov. 29, 1999, 99-2 CPD P: 98 at 3.
    
The protester contends that the foregoing guidance concerning faxed or
photocopied powers of attorney is inapplicable here because the power of
attorney/certification that accompanied its bid bond was a *computer
printer-generated original document  containing computer printer-generated
signatures and seals.* [1]  Protest at 2.  All Seasons argues that a power
of attorney bearing mechanically applied signatures is valid and binding
where it affirms the surety's intention to be bound by the signatures.
    
While we have recognized a power of attorney bearing mechanically applied
signatures as valid and binding where there is evidence demonstrating that
the surety intends to be bound by such signatures, see Fiore Constr. Co.,
B-256429,
June 23, 1994, 94-1 CPD P: 379 at 2-3, we conclude that, for a
mechanically applied signature to be recognized as valid and binding, it
must be affixed to the power of attorney after the power of attorney has
been generated.  Where, as here, signatures are generated as part of a
document, as opposed to being affixed to the document after its
generation, they do not constitute an affirmation as to the correctness of
its contents and thus do not serve to validate the document.  In the
absence of a validating signature, there is no way to be certain at the
time of bid opening that the file from which a computer printer-generated
power of attorney/certification was created has not been altered, just as
there is no way to be certain that the original from which a faxed or
photocopied power of attorney/certification was created has not been
altered.  
While, as noted above, an original certification from a current officer of
the surety attesting to its authenticity and continuing validity would
have been sufficient to validate the power of attorney that accompanied
All Seasons' bid bond, the certification submitted by the protester's
surety suffered from the same defect as the power of attorney
itself--i.e., it contained only a computer printer-generated signature;
thus, it did not serve to validate the power of attorney.  Moreover, the
certification is itself of questionable validity because it clearly had
been altered--through insertion of the date August 9, 2002[2]-- after
being printed, and there is no evidence that the assistant vice president
whose computer printer-generated signature appears beneath the
certification was aware of or approved the alteration.
    
Because neither the power of attorney nor the certification of continuing
validity attached to the protester's bid bond bore signatures that had
been applied to the document after its creation, we think that the
contracting officer reasonably concluded that they did not establish
unequivocally at the time of bid opening that the bond would be
enforceable against the surety in the event that the bidder failed to meet
its obligations.  Accordingly, she properly rejected All Seasons' bid as
nonresponsive.[3]
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] While the protester characterizes the power of attorney as an
*original* document generated by a computer printer, we note that in a
statement responding to the protest, the contracting officer states that,
after reviewing the power of attorney, he concluded that it was a
photocopy.  While the agency does not further advocate this position in
its report, our review of the power of attorney confirms that it in fact
looks more like a photocopy than a document generated by a computer
printer.  This fact in itself would be sufficient to justify rejection of
the bid under the long-standing rule, cited above, that photocopied powers
of attorney are not acceptable.
[2] As noted above, it is evident from the different type size that the
date was added to the document after it was printed.  The protester
concedes as much in its pleadings, noting that *the 'still in full force'
date . . . was typed onto the document by typewriter.*  Protest at 2.
[3] In its report on the protest, the agency takes the position that the
power of attorney/certification is invalid because it lacks an original
corporate seal.  In our view, the determinative issue in deciding whether
a power of attorney is valid is not whether it bears an original corporate
seal; the determinative issue is whether the power of attorney is properly
signed.  Application of an original corporate seal is not sufficient to
overcome the lack of a proper signature, see Schrepfer Indus., Inc.,
supra, at 3, and we see no basis to find that an original corporate seal
is required for a properly signed power of attorney to be considered
authentic.