28.101-3
Authority of an attorney-in-fact for a bid bond
Contractors must provide valid, documented authority for attorneys-in-fact signing bid bonds, or risk bid rejection for non-responsiveness.
Overview
FAR 28.101-3 outlines the requirements for demonstrating the authority of an attorney-in-fact who signs a bid bond on behalf of a surety. It specifies the acceptable forms of evidence, how signatures and seals are treated, and the responsibilities of contracting officers in verifying and handling issues related to powers of attorney. The regulation ensures that only authorized individuals bind sureties, protecting the integrity of the bid process.
Key Rules
- Evidence of Authority
- Anyone signing a bid bond as an attorney-in-fact must provide evidence (such as a power of attorney) showing their authority to bind the surety.
- Acceptable Forms of Evidence
- Original, photocopy, or facsimile of a power of attorney is sufficient; electronic and mechanically-applied signatures are treated as originals.
- Responsiveness and Responsibility
- Failure to provide a signed and dated power of attorney at bid opening is a responsiveness issue; questions about authenticity are responsibility issues, handled after bid opening.
- Validation Process
- If the contracting officer contacts the surety to validate the power of attorney, the officer must document the contact and response. Corrections for technical errors may be allowed if the power was valid at bid opening, but not if it was invalid.
- Non-Responsibility Determinations
- If the surety disavows the power of attorney, non-responsibility determinations are not subject to the Certificate of Competency process.
Responsibilities
- Contracting Officers: Verify authority, document validation efforts, and distinguish between responsiveness and responsibility issues.
- Contractors: Ensure proper, timely submission of valid powers of attorney with bid bonds.
- Agencies: Maintain documentation and enforce compliance with bid bond authority requirements.
Practical Implications
- This section protects the government from unauthorized bid bond commitments and clarifies procedures for handling authority issues. Contractors must be diligent in submitting proper documentation, as failure can result in bid rejection. Contracting officers must carefully document and distinguish between procedural and substantive issues to ensure fair bid evaluation.