Matter of: Hunter-Knepshield Company File: B-249884 Date: September 17, 1992

B-249884: Sep 17, 1992

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The bond's enforceability is questionable and the bid must be rejected as nonresponsive. Hunter-Knepshield contends that the agency improperly rejected its bid since the facsimile copy of its bid bond which was submitted had the original signature of the bidder's representative. Other government agencies have never rejected its bid bond. The facts in this case are identical. Where we pointed out that the determinative issue concerning the acceptability of a bid bond is whether. An agency cannot determine definitively from a facsimile copy of the bid bond that the surety would be bound since 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.

Matter of: Hunter-Knepshield Company File: B-249884 Date: September 17, 1992

PROCUREMENT Sealed Bidding Bids Responsiveness Bid guarantees Facsimile Where company submits with its bid only a facsimile copy of a bid bond, the bond's enforceability is questionable and the bid must be rejected as nonresponsive.

Attorneys

DECISION

Hunter-Knepshield Company protests the rejection of its apparent low bid under invitation for bids (IFB) No. 1443IB400092911, issued by the Department of the Interior. The agency rejected the bid as nonresponsive because the firm submitted only a facsimile copy of a required bid bond with its bid.

We dismiss the protest.

Hunter-Knepshield contends that the agency improperly rejected its bid since the facsimile copy of its bid bond which was submitted had the original signature of the bidder's representative, a notary signature as a witness, and the bidder's corporate seal. The protester asserts that in the past, other government agencies have never rejected its bid bond.

The facts in this case are identical, in relevant part, to the facts in J T Roofing, Inc., B-245823, Oct. 8, 1991, 91-2 CPD Para. 318, where we pointed out that 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. An agency cannot determine definitively from a facsimile copy of the bid bond that the surety would be bound since 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. See Executone Information Sys., Inc., B-246155, Oct. 21, 1991, 91-2 CPD Para. 353; G & A Gen. Contractors, B-236181, Oct. 4, 1989, 89-2 CPD Para. 308. The original signature of the bidder's representative, the bidder's corporate seal, and the signature of a notary public on the facsimile copy are of no effect because they do not reflect the surety's authorized consent. Even if, as Hunter-Knepshield suggests, other government agencies have accepted bonds with similar deficiencies, this provides no basis to accept the bond under this procurement. Each procurement is a separate transaction, and action taken on any one procurement does not govern the conduct of all similar procurements. See U.S. Gen., Inc.--Recon., B-242769.2, Aug. 5, 1991, 91-2 CPD Para. 126.

Hunter-Knepshield submitted, after bid opening, a letter from its surety stating that the surety considers the bid bond valid as if it contained an original signature. However, as with other matters relating to the responsiveness of a bid, Hunter-Knepshield cannot cure this deficiency after bid opening since a bidder's intention and the obligation running to the government must be determinable from the bid and bond at bid opening. G & A Gen. Contractors, supra. The post bid opening letter from the surety cannot cure the deficiency in Hunter-Knepshield's bid, because to permit such a result would give a bidder essentially the impermissible option, after bid opening, of accepting or rejecting the award by either correcting or not correcting the bond deficiency. Id.

The protest is dismissed.

The Honorable Mitch McConnell United States Senator 600 Martin Luther King, Jr., Place Room 136-C Louisville, KY 40202

Dear Senator McConnell:

This is in response to your letter of August 19, 1992, concerning the protest filed by Hunter-Knepshield Company in connection with invitation for bids No. 14431B400092911, issued by the Department of the Interior. By decision of today, copy enclosed, we have dismissed the protest.