R.P. Richards, Inc.

B-272430 Oct 08, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Facsimile copy of a bid bond is of questionable enforceability and renders bid nonresponsive. Its bid was rejected as nonresponsive. Award was made to Godot . 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. A requirement for a bid bond is a material IFB term with which there must be compliance at the time of bid opening. The bid itself is defective and must be rejected as nonresponsive. The determinative issue concerning the acceptability of a bid bond is whether. The bid is nonresponsive and must be rejected. 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 . View Decision Matter of: R.P. Richards, Inc. File: B-272430 Date: October 8, 1996 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. Attorneys 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.