B-244790, October 29, 1991

B-244790, October 29, 1991

DIGEST: Procuring agency properly canceled an invitation for bids after bid opening where the solicitation-- whose award amount was expected to exceed $100,000-- failed to include mandatory requirement for Certificate of Procurement Integrity clause and certificate form.

Attorneys

American Dredging Company:

American Dredging Company protests the cancellation, after bid opening, of invitation for bids (IFB) No. DACW51-91-B-0034, by the United States Army Corps of Engineers, New York District, for maintenance dredging of the Tarrytown Harbor, located in New York. American contends that the Army's failure to include a Certificate of Procurement Integrity form in the solicitation, and the resulting failure of the bidders to include signed certificates with their bids, is not a valid basis for canceling
the IFB after bids have been opened.

We dismiss the protest because it fails to state a valid basis of
protest.
See 4 C.F.R. Sec. 21.3(m) (1991).

The IFB, issued May 17, 1991, sought bids for the Tarrytown Harbor
dredging project by June 18.
At bid opening, bids were received from two
contractors-- American and Great Lakes Dredging Company.
When neither of
the two contractors provided procurement integrity certifications with
their bids, the contracting officer realized that the mandatory
procurement integrity provisions had been inadvertently omitted from the
solicitation.
Thus, the contracting officer canceled the IFB on June 28,
and notified both bidders, by undated letter, several days later.
In his
letter, the contracting officer further advised that the dredging
requirement would be resolicited in the near future.
/1/ On July 15,
American-- the apparent low bidder under the original IFB-- filed this
protest.

American contends that the Army improperly canceled the IFB without a
compelling reason since, according to American, no bidder would be
prejudiced by allowing both bidders to submit a completed Certificate of
Procurement Integrity form after bid opening.
In addition, American
argues that it is not necessary to cancel the procurement, because the
underlying statute requiring the certification only requires that the
certificate be completed before award.

The Certificate of Procurement Integrity clause, Federal Acquisition
Regulation (FAR) Sec. 52.203-8 (FAC 90-2), which was omitted from the
solicitation, implements 41 U.S.C. Sec. 423(e)(1) (Supp. I 1989), a
statute that bars agencies from awarding contracts unless a bidder or
offeror certifies in writing that neither it nor its employees has any
information concerning violations or possible violations of the Office of
Federal Procurement Policy (OFPP) Act provisions set forth elsewhere in 41
U.S.C. Sec. 423.
Although the OFPP Act itself only provides that a
federal agency may not award a contract without the certification, see 41
U.S.C. Secs. 423(e)(1), (2), the implementing regulations in the FAR
specifically require that when agencies use sealed bidding procedures,
each bidder must submit a signed certificate with its bid.
FAR Sec.
52.203-8(c)(1).

American is correct in its assertion that an agency must have a
compelling reason to cancel a solicitation after bid prices have been
exposed.
See FAR Sec. 14.404-1(a)(1); Nomura Enter.
Inc., B-244993;
B-245521, Sept. 6, 1991, 91-2 CPD ***. Nonetheless, we have previously
decided that completion of the Certificate of Procurement Integrity
concerns a matter of bid responsiveness, and that bidders may not,
therefore, be permitted to submit completed Certificates of Procurement
Integrity after bid opening.
Mid-East Contractors, Inc., B-242435, Mar.
29, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 342.

In fact, we have held that where, as here, a defect in the solicitation
prevents bidders from properly complying with the procurement integrity
certification requirement at the time of bid opening-- for example, where
the actual certificate lacks the requisite blanks or lines for signature
or for the mandatory certification data-- the solicitation must be
canceled and resolicited.
See Shifa Servs., Inc., B-242686, May 20, 1991,
70 Comp.Gen. ***, 91-1 CPD Para. 483; Nomura Enter.
Inc., supra; Krielow
Bros., Inc.; King Fisher Marine Svc., Inc., B-243384; B-243384.2, June 21,
1991, 91-1 CPD Para. 591.

We also disagree with American's contention that no bidder would be
prejudiced by now permitting submission of signed certificates.
Permitting bidders to decide after bid opening whether to comply with a
material legal obligation would prejudice the integrity of the competitive
bidding system by giving an otherwise successful bidder a second
opportunity to walk away from a low bid.
See 38 Comp.Gen. 532 (1959).
addition, there is no authority to permit the low bidder under a properly
canceled IFB an exclusive opportunity to meet the revised requirements of
the agency without resolicitation.
See John C. Kohler Co., B-218133, Apr.
22, 1985, 85-1 CPD Para. 460; General Aero Prod. Corp., B-213541, Sept.
18, 1984, 84-2 CPD Para. 310.
/2/

Next, American implies that the FAR-- in requiring that each bidder's
signed procurement integrity certificate must be submitted at the time of
bid opening-- /3/ has expanded the requirements set forth in the OFPP Act,
and that those requirements should not be followed here.
However, not
only have our decisions upheld the requirements in the FAR, see Mid-East
Contractors, Inc., supra, but a recent Claims Court case has expressly
rejected the contention that the regulatory requirement for completed
procurement integrity certifications at the time of bid opening exceeds
the scope of the statute.
McMaster Constr., Inc. v. United States, Cl.Ct.
No. 91-1269C, slip op. (Aug. 5, 1991).
Since we agree with the rationale
of the Claims Court, we will not consider this matter further.

Finally, American argues that our decision in Harsco Corp., B-236777,
Dec. 13, 1989, 89-2 CPD Para. 551, provides authority for amending rather
than canceling the defective IFB here.
In Harsco, we upheld a procuring
agency's decision to permit the low bidder to correct its bid after bid
opening since, after the protested IFB was issued, the statutory
requirement for the Certificate was suspended and therefore bidders were
no longer required to furnish the procurement integrity certification with
their bids.
Since that decision, however, the OFPP Act provisions
requiring the certification were reinstated and became effective, for the
second time, on December 1, 1990.
Accordingly, our holding in Harsco is
no longer applicable since bidders are once again under an affirmative
obligation to provide a procurement integrity certification where the
amount of contract award is anticipated to exceed $100,000.

The protest is dismissed.

/1/ The Army has since issued a new solicitation for the Tarrytown dredging project. The new IFB contains both the Certificate of Procurement Integrity clause and the certificate form, as well as a modified scope of work.

/2/ American also argues that the omitted FAR procurement integrity clause could have been incorporated into the original IFB by operation of law under the "Christian Doctrine." See G.L. Christian & Assoc. v. United States, 312 F.2d 424 (Cl.Ct. 1963). We find this argument without merit since the Christian Doctrine cannot be invoked to incorporate clauses into solicitations before award. Rainbow Roofing, Inc., 63 Comp.Gen. 452 (1984), 84-1 CPD Para. 676.

/3/ See FAR Secs. 3.104-9(b)(3); 3.104-10; 14.404-2(m); 52.203 8(c)(1).

Michael H. Payne, Esq., and Timothy S. Kerr, Esq., Starfield, Payne & Korn, for the protester.