B-245823, October 8, 1991

B-245823: Oct 8, 1991

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The bid bond is of questionable enforceability and the bid is properly rejected as nonresponsive. It asserts that the submission of the original bid bond should have cured any defect arising from its failure to submit the original document prior to bid opening. The determinative issue concerning the acceptability of a bid bond is whether. The agency cannot determine definitely from a facsimile copy of the bid bond that the surety would be bound because there is no way it can be certain from examining the copy that there had not been alterations to which the surety had not consented. /1/ Id. The protest is dismissed. /1/ Therefore. The original signature of the bidder's representative and the bidder's corporate seal on the facsimile copy are not relevant.

B-245823, October 8, 1991

DIGEST: Where bidder has submitted only a facsimile copy of a bid bond as of the time of bid opening, the bid bond is of questionable enforceability and the bid is properly rejected as 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 subsequent to bid opening.

Attorneys

J T Roofing, Inc.:

J T Roofing, Inc. protests the rejection of its low bid under invitation for bids (IFB) No. DAKF61-91-B-0051, issued by the Department of the Army for roofing repairs at the United States Army Reserve Center, Milwaukee, Wisconsin. The Army rejected J T Roofing's bid as nonresponsive because its bid contained only a facsimile copy of a required bid bond.

We dismiss the protest.

J T Roofing submitted a facsimile copy of the original bid bond with its bid documents. J T Roofing signed the facsimile bid bond and attached its corporate seal. Three days after bid opening, J T Roofing submitted the original bid bond document. It asserts that the submission of the original bid bond should have cured any defect arising from its failure to submit the original document prior to bid opening.

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 that the surety would be bound, based on the information in the possession of the contracting agency at the time of bid opening. & A General Contractors, B-236181, Oct. 4, 1989, 89-2 CPD Para. 308. The agency cannot determine definitely from a facsimile copy of the bid bond that the surety would be bound because there is no way it can be certain from examining the copy that there had not been alterations to which the surety had not consented. /1/ Id. This deficiency cannot be cured by submitting the original bond documents after bid opening because this would essentially provide the bidder with the option of accepting or rejecting the award by either correcting or not correcting the bond deficiency. Id. Since J T Roofing's submission of a facsimile copy of the bid bond raises a question of bond enforceability that can be resolved only by reference to documents submitted after bid opening, the Army properly rejected its bid as nonresponsive.

The protest is dismissed.

/1/ Therefore, the original signature of the bidder's representative and the bidder's corporate seal on the facsimile copy are not relevant, since they do not reflect the surety's authorized consent.