FAR 28.101-3—Authority of an attorney-in-fact for a bid bond.
Plain-English Summary
FAR 28.101-3 explains how a bid bond must be supported when it is signed by an attorney-in-fact rather than directly by the surety, and how contracting officers should evaluate the accompanying power of attorney. It covers the required evidence of authority to bind the surety, what forms of power of attorney are acceptable, how electronic, mechanically applied, and printed signatures/seals/dates are treated, and the distinction between responsiveness and responsibility when the power of attorney is missing or questionable at bid opening. The section also tells contracting officers how to document any contact with the surety, when technical corrections may be allowed, when substitution of a replacement power of attorney or surety is prohibited, and when a non-responsibility determination is excluded from the Certificate of Competency process. In practice, this rule protects the government by ensuring the bid bond is enforceable at the time of bid opening while preventing bidders from curing substantive defects after bids are exposed. It also gives contracting officers a clear process for handling authenticity concerns without improperly rejecting bids for issues that belong in the responsibility arena.
Key Rules
Authority must be shown
Anyone signing a bid bond as an attorney-in-fact must include evidence that they are authorized to bind the surety. Without that proof, the bid bond is not properly supported.
Power of attorney is sufficient
An original power of attorney, or a photocopy or facsimile of an original, is acceptable evidence of authority. The regulation does not require the original document if a copy or facsimile is provided.
Electronic signatures count
Electronic, mechanically applied, and printed signatures, seals, and dates on the power of attorney are treated as original signatures, seals, and dates. The order in which they were affixed does not matter for this purpose.
Missing POA is responsiveness
If a signed and dated power of attorney is not provided at bid opening, the defect is treated as a matter of responsiveness. That means the bid is defective on its face and cannot be cured after opening.
Authenticity is responsibility
Questions about whether the power of attorney is authentic or enforceable at bid opening are matters of responsibility, not responsiveness. Those questions are handled after bid opening, which means the contracting officer may investigate the surety’s position before deciding.
Document surety contact
If the contracting officer contacts the surety to validate the power of attorney, the file must document the name of the person contacted, the date and time of contact, and the surety’s response. This creates a record supporting the procurement decision.
Valid POA may be corrected technically
If the surety confirms the power of attorney was valid at bid opening, the contracting officer may allow correction of a technical error. This is limited to non-substantive defects and does not permit changing the underlying bid bond obligation.
Invalid POA cannot be replaced
If the surety says the power of attorney was invalid at bid opening, the bidder may not substitute a new power of attorney or a replacement surety. The defect is fatal because the bond was not properly authorized when bids were opened.
C.O.C. does not apply
A non-responsibility determination based on an unacceptable power of attorney is not subject to the Certificate of Competency process if the surety has disavowed the power of attorney’s validity. This limits SBA review in that situation.
Responsibilities
Bidder/Contractor
Ensure the bid bond is signed by an attorney-in-fact who has proper authority from the surety. Include a signed and dated power of attorney with the bid bond at bid opening, and make sure the document is complete and supportable.
Surety
Provide valid authority for the attorney-in-fact and, if contacted, confirm whether the power of attorney was valid at the time of bid opening. The surety’s response may determine whether a defect is curable or fatal.
Attorney-in-fact
Sign the bid bond only within the scope of authority granted by the surety’s power of attorney. The attorney-in-fact should ensure the authority document accompanies the bond and is properly executed.
Contracting Officer
Verify that the bid bond includes evidence of authority, treat missing signed and dated powers of attorney as responsiveness issues, treat authenticity/enforceability questions as responsibility matters, document any surety contact, allow only technical corrections when the surety confirms validity, and prohibit substitution of a replacement power of attorney or surety when the surety disavows validity.
Agency/Procurement File
Maintain a complete record of any surety validation effort, including contact details and the surety’s response, so the basis for the bid evaluation and award decision is clear and defensible.
Practical Implications
A bid bond defect can be fatal if the signed and dated power of attorney is missing at bid opening, so bidders should verify the bond package before submission.
Contracting officers must separate responsiveness from responsibility: missing authority documents are handled differently from doubts about authenticity or enforceability.
If the surety confirms the power of attorney was valid, the government may be able to treat minor errors as technical and avoid unnecessary bid rejection.
If the surety disavows the power of attorney, the bidder cannot fix the problem by swapping in a new power of attorney or a different surety after opening.
Careful documentation matters because any contact with the surety may be scrutinized in a protest or audit, and the file must show exactly who was contacted, when, and what was said.
Official Regulatory Text
(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.