Bid Guarantees and the Attorney-in-Fact: A Contractor Q&A Guide
When assembling bids for federal construction work, prime contractors and trade subcontractors alike must understand the strict mechanics behind bid security. A bid bond is only as good as the legal authority backing the signature on the document. Under federal procurement rules, specific standards govern when a bid guarantee is mandatory and how a contracting officer reviews the authority of an attorney-in-fact who executes the bond on behalf of a surety.
When Is a Bid Guarantee Required Under FAR 28.101-1?
Under FAR 28.101-1 Policy on use, a contracting officer cannot require a bid guarantee unless a performance bond or a performance and payment bond is also required. Except when waived under specific conditions, bid guarantees must be required whenever a performance bond or a performance and payment bond is mandated. Estimators preparing federal submittals should coordinate early with their bonding agents, especially when cross-referencing requirements outlined in our guide on Bid Bonds, Performance Bonds and Payment Bonds.
For construction contracts, the rules are notably strict regarding format. While all types of bid guarantees are acceptable for supply or service contracts, only separate bid guarantees are acceptable in connection with construction contracts. Furthermore, federal agencies may specifically dictate that only separate bid bonds are acceptable for construction acquisitions.
Can the Government Waive a Bid Guarantee?
Yes, but only under defined administrative channels. According to FAR 28.101-1, the chief of the contracting office may waive the requirement to obtain a bid guarantee when a performance bond or a performance and payment bond is required, provided it is determined that a bid guarantee is not in the best interest of the Government for a specific acquisition. Examples cited in the regulation include:
- Overseas construction
- Emergency acquisitions
- Sole-source contracts
Additionally, class waivers may be authorized by the agency head or a designee.
What Evidence Must an Attorney-in-Fact Provide?
Under FAR 28.101-3 Authority of an attorney-in-fact for a bid bond, any person signing a bid bond as an attorney-in-fact must include with the bid bond evidence of authority to bind the surety. The standard proof required is a power of attorney.
The regulation confirms that an original, or a photocopy or facsimile of an original, power of attorney serves as sufficient evidence of that authority. Furthermore, electronic, mechanically-applied, and printed signatures, seals, and dates on the power of attorney are treated as original signatures, seals, and dates, without regard to the order in which they were affixed.
How Does the Contracting Officer Treat a Missing Power of Attorney?
The timing and nature of the defect determine how the government handles the issue. As set forth in FAR 28.101-3, the contracting officer must:
- Treat the failure to provide a signed and dated power of attorney at the time of bid opening as a matter of responsiveness.
- 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.
Because responsiveness is evaluated strictly at bid opening, omitting the signed and dated power of attorney from the bid package is fatal to the bid.
What Happens If the Contracting Officer Contacts the Surety?
If the contracting officer decides to contact the surety to validate the power of attorney, the contracting officer must document the procurement file. At a minimum, that documentation must capture:
- The name of the person contacted
- The date and time of contact
- The response of the surety
If the surety declares during the investigation that the power of attorney was valid at the time of bid opening, the contracting officer may require correction of any technical error. However, if the surety declares the power of attorney to have been invalid, the contracting officer cannot allow the bidder to substitute a replacement power of attorney or a replacement surety.
Does the SBA Certificate of Competency Process Apply If a Surety Disavows the Bond?
Normally, small businesses found non-responsible can seek review through the Small Business Administration, a process discussed in our overview of the SBA Certificate of Competency. However, FAR 28.101-3(f) explicitly states that 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.
Sources
FAR 28.101-3 Authority of an attorney-in-fact for a bid bond. | Acquisition.GOV
FAR 28.101-1 Policy on use. | Acquisition.GOV
Published October 30, 2026. No affiliate links on this page. Facts come from the sources linked above; check them for updates.