Kemper Construction Company, Inc., B-283286.2, November 29, 1999

B-283286.2 Nov 29, 1999 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights The bond was unacceptable and the bid nonresponsive. The agency rejected Kemper's bid as nonresponsive because the power of attorney attached to its bid bond was a faxed copy. The protester contends that the copy was sufficient to bind the surety and thus should have been accepted. Which was issued on June 15. Five bids were received by the bid opening time on July 15. Kemper was the apparent low bidder. Inc. and Cooper Construction were second and third low. DeLoach Corp. was fourth low. The contracting officer agreed with DeLoach that Cooper's bid was nonresponsive. That the powers of attorney that accompanied Kemper's and Payne's bid bonds were not original documents. Agency counsel further determined that because the powers of attorney were copies. View Decision Matter of: Kemper Construction Company, Inc. File: B-283286.2 Date: November 29, 1999 DIGEST Attorneys DECISION Kemper Construction Company, Inc. protests the rejection of its bid under invitation for bids (IFB) No. DACW29-99-B-0069, issued by the Army Corps of Engineers for construction of a shop and garage building at the Mississippi River Spillway, St. Charles Parish, Louisiana. The agency rejected Kemper's bid as nonresponsive because the power of attorney attached to its bid bond was a faxed copy. The protester contends that the copy was sufficient to bind the surety and thus should have been accepted. We deny the protest. The IFB, which was issued on June 15, 1999, required bidders to submit with their bids a bid bond in the amount of 20 percent of the bid price. Five bids were received by the bid opening time on July 15. Kemper was the apparent low bidder; Julius A. Payne Company, Inc. and Cooper Construction were second and third low, respectively; and DeLoach Corp. was fourth low. On July 16, DeLoach filed an agency-level protest, contending that the bids of Kemper, Payne, and Cooper should all be rejected as nonresponsive and that award should be made to DeLoach. The contracting officer agreed with DeLoach that Cooper's bid was nonresponsive, but denied the protest with regard to Kemper's and Payne's bids. Upon learning that its agency-level protest had been denied, DeLoach protested to our Office. DeLoach argued, among other things, that the powers of attorney that accompanied Kemper's and Payne's bid bonds were not original documents. Upon investigation, the agency determined that both Kemper and Payne had in fact submitted faxed copies of powers of attorney with their bid bonds. Agency counsel further determined that because the powers of attorney were copies, the bids were nonresponsive. The agency notified all three bidders that the bids of Kemper and Payne had been determined nonresponsive and that award would be made to DeLoach, whereupon DeLoach withdrew its protest, and Kemper and Payne filed protests of their own. /1/ Kemper's bond was signed by the attorney-in-fact for the National Fire Insurance Company of Hartford, and the surety company's seal was crimped over the attorney-in-fact's signature. The bond was accompanied by a faxed copy of a power of attorney appointing the individual as attorney-in-fact for the above-named surety company with "full power and authority . . . to sign, seal and execute for and on [its] behalf bonds undertakings and other obligatory instruments of similar nature . . . In Unlimited Amounts." A certificate at the bottom of the power of attorney provided that it was still in force; the date "July 15, 1999" had been handwritten onto the certificate. On the reverse side of the power of attorney, the following statement appeared: This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993. RESOLVED: That the signature of the President, an Executive Vice President or any Senior or Group Vice President and the seal of the Corporation may be affixed by facsimile on any power of attorney granted pursuant to the Resolution adopted by this Board of Directors on February 17, 1993 and the signature of a Secretary or an Assistant Secretary and the seal of the Corporation may be affixed by facsimile to any certificate of any such power, and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Corporation. Any such power so executed and sealed and certified by certificate so executed and sealed, shall with respect to any bond or undertaking to which its is attached, continue to be valid and binding on the Corporation. The protester contends that the power of attorney accompanying its bid bond, although a facsimile copy, was valid, and that its bid was thus responsive.