FAR 28.101—Bid guarantees.

Policy on use.

FAR 28.101-1 explains when a contracting officer may or must require a bid guarantee, and how that requirement relates to performance bonds and performance and payment bonds. It also distinguishes between acceptable forms of bid guarantees for supply and service contracts versus construction contracts, including the special rule that construction contracts require separate bid guarantees and may be limited further by agency policy. The section also gives the Government a waiver mechanism when a bid guarantee is not in the Government’s best interest for a particular acquisition, with examples such as overseas construction, emergency acquisitions, and sole-source contracts. In practice, this section is about aligning bid security with the risk of award and performance, so the Government does not impose unnecessary bid protection or use the wrong form of security for the contract type. It matters because bid guarantees can affect competition, bidder participation, and the Government’s ability to protect itself against a bidder’s failure to execute the contract or provide required performance security.

Solicitation provision or contract clause.

FAR 28.101-2 tells contracting officers when and how to use the bid guarantee solicitation provision or contract clause, and how to set the required guarantee amount. It covers insertion of a provision or clause substantially the same as FAR 52.228-1, Bid Guarantee, whenever a solicitation or contract requires a bid guarantee or similar guarantee, and it explains when that provision may be modified for specific situations. Those situations include setting a return period for executed bonds other than 10 days, using the provision in construction solicitations where only separate bid bonds are acceptable, using it in negotiated procurements, and using it in service contracts with options for extended performance. The section also requires the contracting officer to determine the bid guarantee amount and ties that amount to the need to protect the Government if the successful bidder fails to execute required contract documents and bonds. Practically, this section ensures the solicitation clearly states the guarantee requirement, the form it must take, and the financial exposure the Government is trying to cover, so bidders know exactly what is expected and agencies can enforce the requirement consistently.

Authority of an attorney-in-fact for a bid bond.

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.

Noncompliance with bid guarantee requirements.

FAR 28.101-4 explains what happens when a bidder or offeror does not comply with a solicitation’s bid guarantee requirement. It covers the consequences in sealed bidding, the treatment of noncompliance in negotiated procurements when award may be made on initial proposals without discussions, and the different handling when discussions are held and the deficiency can be corrected. It also lists specific situations in which noncompliance must be waived, unless the contracting officer makes a written determination that accepting the bid would be detrimental to the Government’s interest. Those waiver situations include only one offer received, a shortfall in the guarantee amount that still covers the gap to the next higher acceptable offer, partial coverage for a quantity the offeror is otherwise eligible to receive, late receipt waived under FAR 14.304, inadequacy caused by correction of a mistake, and certain bid bond defects such as missing offeror signature, erroneous or missing date, or failure to name the United States as obligee when other identifying information is correct. In practice, this section protects the Government’s ability to enforce bid security while also preventing rejection for minor or technical defects that do not materially affect the Government’s protection. It is important because bid guarantee defects can determine whether a bid or proposal is rejected, waived, or corrected, which can directly affect award eligibility and competition outcomes.