Hawaiian Dredging Construction Co. v. United States

59 Fed. Cl. 305, 2004 U.S. Claims LEXIS 2, 2004 WL 51318
CourtUnited States Court of Federal Claims
DecidedJanuary 9, 2004
DocketNo. 03-2763C
StatusPublished
Cited by20 cases

This text of 59 Fed. Cl. 305 (Hawaiian Dredging Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawaiian Dredging Construction Co. v. United States, 59 Fed. Cl. 305, 2004 U.S. Claims LEXIS 2, 2004 WL 51318 (uscfc 2004).

Opinion

OPINION

MILLER, Judge.

This is a post-award bid protest before the court after argument on plaintiffs motion for summary judgment and defendant’s and in-tervenors’ cross-motions for judgment on the administrative record. Plaintiff submitted bids on two separate dredging contracts with bonds accompanied by powers of attorney [306]*306containing mechanically applied signatures. The contracting officer determined both bids to be nonresponsive because the powers of attorney lacked original signatures. After being denied relief through an agency-level protest, plaintiff brought the present action in the Court of Federal Claims. The issue to be decided is whether the contracting officer had a reasonable basis for rejecting plaintiffs bids on the ground that the documents appointing the officer to execute the bid bonds and the resolutions attesting that the appointment was still in effect lacked original, or “wet,” signatures. Because the contracting officer also invoked the authority of a decision of the Comptroller General that a mechanically applied signature is acceptable, provided that it is affixed after the document otherwise is complete, the court also decides whether the contracting officer’s reliance on that decision was reasonable.

FACTS

The relevant undisputed facts derive from the administrative record. The U.S. Department of the Navy, Construction Contracts Branch, Naval Facilities Engineering Command (the “Navy”), issued two invitations for bids (“IFBs”) for repair work to be performed on a wharf and docks at the Naval Station in Pearl Harbor, Hawaii. IFB N62742-02-B-1408 was issued on August 5, 2003 for repair of Alpha Wharf 1 (the “Alpha contract”). On August 12, 2003, the Navy-issued IFB N62742-03-B-1309 for repair of Bravo Docks 15-19 (the “Bravo contract”).

Hawaiian Dredging Construction Co., Inc. (“plaintiff’), submitted timely bids for both the Alpha and Bravo contracts on September 16 and 17, respectively. Both of the IFBs incorporated 48 C.F.R. (FAR) § 52.228-1 (Sept.1996), which required a potential contractor to submit with its bid a guarantee equal to 20 percent of the total bid price, which could be in the form of a bond “supported by good and sufficient surety.”1

The applicable Federal Acquisition Regulation (“FAR”) was supplemented by Federal Acquisition Circular (“FAC”) § 5252.228-9302 (Jan.1996), also incorporated into both IFBs, which sets forth the requirements for submitting a bid bond. A bidder must submit a bid bond using Standard Form (“SF”) 24 “executed by a surety company holding a certificate of authority from the Secretary of the Treasury as an acceptable surety.” In addition to the SF 24, “[t]he bid guarantee bond shall be accompanied by a document authenticating the agent’s authority to sign bonds for the surety company.”

The SF 24 submitted with both of plaintiffs bids was signed by Richard Adair, Attorney-in-Fact for the surety that issued the bid bond, American Home Assurance Company (“American Home”). To the right of Mr. Adair’s signature, American Home’s raised corporate seal was embossed onto the document.

Along with the SF 24, plaintiff submitted a separate document which contained three sections: a “Power of Attorney,” a notary attestation, and a “Certificate.” A copy of the Power of Attorney document for the Alpha contract is appended hereto as Appendix A. This separate document was printed in blue ink to differentiate it from a photocopy, but nonetheless it was a mechanical reproduction, rather than an original document.

The first section of the document is a Power of Attorney naming Richard Adair, among others, as attorney-in-fact. The Power of Attorney recites that, as attorney-in-fact, Mr. Adair has the authority to “execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity ... and to bind” American Home thereby. The Power of Attorney is dated January 4, 2002, and contains the mechanically applied signature of Mark A. Mallonee, Vice President of American Home. To the left of Mr. Mallo-nee’s signature on the Power of Attorney appears the facsimile of American Home’s corporate seal.

The second section of the document is a notary public’s attestation of Mr. Mallonee’s signature. The notary’s signature is also a [307]*307mechanical reproduction, in the same distinctive blue ink, dated the same as Mr. Mallo-nee’s signature, January 4,2002.

The third section of the document is a Certificate in the same blue ink as the power of attorney and notary attestation. The Certificate contains excerpts of resolutions adopted by the board of directors of American Home. The first resolution authorizes the appointment of attorneys-in-fact to execute bid bonds and affirms them authority to bind American Home. The second resolution states that American Home is bound by facsimile signatures2 and corporate seals on a power of attorney, and any certificate relating thereto, as were present in the documents submitted with plaintiffs bids.

The third resolution in the Certificate authorizes an attorney-in-fact to insert onto the Certificate a date upon which the board resolutions are still in effect, provided that the attorney-in-fact delivers a secretarial certification to that effect.

Included in the Certificate is a certification by Elizabeth M. Tuck, Secretary of American Home, that the resolutions and the powers of attorney are still in effect. Ms. Tuck’s signature was mechanically applied to the certificate and appears in the same blue ink as the rest of the document. To the left of Ms. Tuck’s signature is a facsimile of American Home’s corporate seal. Both of plaintiffs Certificates are dated above Ms. Tuck’s signature, in black typewritten ink, September 8, 2003, for the Alpha contract and September 17, 2003, for the Bravo contract. To the left of the Ms. Tuck’s signature American Home’s raised corporate seal is embossed onto both documents.

On September 16, 2003, the Navy opened the sealed bids for the Alpha contract. Plaintiff had submitted the lowest bid of $3,783,000.00, with the next lowest bid of $4,987,540.00 submitted by Triton Marine Construction Corporation (“Triton”). The Navy opened the sealed bids for the Bravo contract on September 17, 2003, which revealed that plaintiff was also the lowest bidder at $8,020,000.00. The next lowest bidder for the Bravo contract was Nova Group, Inc. (“Nova”), which bid $8,547,747.00.

Five companies bid on the Alpha contract, all of which, save plaintiff, submitted powers of attorney with wet, or original, signatures. On the Bravo IFB, four companies submitted bids, and each bid, other than plaintiffs, contained a power of attorney with a wet signature.

In a sealed bidding process, “[a]ny bid that fails to conform to the essential requirements of the invitation for bids shall be rejected.” FAR § 14.404-2(a) (2002). More specific to this case, “[w]hen a bid guarantee is required and a bidder fails to furnish the guarantee in accordance with the requirements of the invitation for bids, the bid shall be rejected, except as otherwise provided for in 28.101-4.” FAR § 14.404-20).

Contracting Officer Stanley Louis notified plaintiff by two letters dated September 22, 2003, that both of plaintiffs bids had been found to be nonresponsive and therefore ineligible for consideration. As his reason for rejecting the bids, Mr. Louis stated “the signatures on the Power of Attorney accompanying the [SF 24s] were not

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Bluebook (online)
59 Fed. Cl. 305, 2004 U.S. Claims LEXIS 2, 2004 WL 51318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawaiian-dredging-construction-co-v-united-states-uscfc-2004.