28.101-3 Authority of an attorney-in-fact for a bid bond
Source: FAR 28.101-3 on acquisition.gov
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.
(a) Any person signing a bid bond as an attorney-in-fact shall include with the bid bond evidence of authority to bind the surety.
(b) An original, or a photocopy or facsimile of an original, power of attorney is sufficient evidence of such authority.
(c) For purposes of this section, electronic, mechanically-applied and printed signatures, seals and dates on the power of attorney shall be considered original signatures, seals and dates, without regard to the order in which they were affixed.
(d) The contracting officer shall-
(1) Treat the failure to provide a signed and dated power of attorney at the time of bid opening as a matter of responsiveness; and
(2) Treat questions regarding the authenticity and enforceability of the power of attorney at the time of bid opening as a matter of responsibility. These questions are handled after bid opening.
(e)
(1) If the contracting officer contacts the surety to validate the power of attorney, the contracting officer shall document the file providing, at a minimum, the following information:
(i) Name of person contacted.
(ii) Date and time of contact.
(iii) Response of the surety.
(2) If, upon investigation, the surety declares the power of attorney to have been valid at the time of bid opening, the contracting officer may require correction of any technical error.
(3) If the surety declares the power of attorney to have been invalid, the contracting officer shall not allow the bidder to substitute a replacement power of attorney or a replacement surety.
(f) Determinations of non-responsibility based on the unacceptability of a power of attorney are not subject to the Certificate of Competency process of subpart 19.6 if the surety has disavowed the validity of the power of attorney.