B-242754, May 31, 1991, 91-1 CPD 519

B-242754, May 31, 1991, 91-1 CPD 519

PROCUREMENT - Sealed Bidding - Terms - Materiality - Integrity certification PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Certification - Omission DIGEST: 1. Assertion that bidder was not required to sign and complete a certificate of procurement integrity because the solicitation included the certificate for informational purposes only is denied where the solicitation specifically states that each bidder is required to submit a signed certificate with its bid and that the failure to do so will result
in rejection of the bid as nonresponsive.
PROCUREMENT - Sealed Bidding - Invitations for bids - Terms -
Interpretation - Certification
2. Protester's argument that it was misled by a provision in an
invitation for bids (IFB) stating that the Certificate of Procurement
Integrity could be completed by successful "offerors" at any time prior to
award to conclude that it was not required to provide a completed
certificate with its bid is denied because (1) it ignores the language of
Federal Acquisition Regulation Sec. 52.203-8(c)(1), set forth in full in
the IFB, which states that bidders are required to submit a signed
certificate with their bid submissions; (2) it confuses the requirements
applicable to sealed bidding with those applicable to negotiated
procurements; and (3) in any event, it concerns a patent ambiguity in the
solicitation which should have been challenged prior to bid opening.
PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Certification -
Omission
3. Contention that by signing its bid protester effectively satisfied the
requirement to complete and sign the Certificate of Procurement Integrity
is denied because the certification provision imposes additional and
substantial legal obligations on the contractor, and failure to sign and
complete the certificate calls into question the bidder's commitment to
the certificate's stated requirements.

Attorneys

McGuire Refrigeration, Inc.:

McGuire Refrigeration, Inc. (MRI) protests the rejection of its bid as
nonresponsive for failure to include a completed Certificate of
Procurement Integrity as required by invitation for bids (IFB) No. 51 WCNA
-1-06014RA, issued by the Department of Commerce for above-ground diesel
fuel storage tanks.
MRI argues that its failure to submit a completed
certificate with its bid does not render its bid nonresponsive because the
solicitation permitted bidders to certify any time prior to award and,
alternatively, that MRI effectively satisfied the certification
requirement at bid opening by signing its bid.

We deny the protest.

The IFB, issued November 2, 1990, contained the full text of the
Certificate of Procurement Integrity clause found at Federal Acquisition
Regulation (FAR) Sec. 52.203-8, which includes instructions to bidders on
how to execute a Certificate of Procurement Integrity as well as the text
of the applicable certificate.
The instructions set forth in FAR Sec.
52.203-8 require bidders to complete the certificate, by identifying the
individual certifier, providing the solicitation number and the name of
the offeror, listing all violations or possible violations of the Office
of Federal Procurement Policy (OFPP) Act provisions found at 41 U.S.C.A.
Sec. 423 (West Supp. 1990) (or entering "none" if none exists), and
signing the certificate.
The clause also advises that "failure of the
bidder to submit the signed certificate with its bid shall render the bid
nonresponsive."
In addition, the solicitation cover sheet expressly
warned potential bidders that "'fill ins' are provided in Section K,
Representations Certifications And Other Statements of Offerors, and must
be completed in full as applicable."

Eight bids were received by the bid opening date of December 4, with MRI
the apparent low bidder.
Upon review, MRI's bid was rejected as
nonresponsive for failure to complete or sign the Certificate of
Procurement Integrity.
By letter dated January 22, MRI was notified that
its bid had been rejected and that award had been made to the second low
bidder, JoaQuin Manufacturing Company.
MRI's protest to our Office
followed.

The Certificate of Procurement Integrity clause is required by FAR Sec.
3.104-10 to be included in all solicitations where the resulting contract
is expected to exceed $100,000.
The clause implements 41 U.S.C.A. Sec.
423(e)(1), a statute that bars agencies from awarding contracts unless a
bidder or offeror certifies in writing that neither it nor its employees
have any information concerning violations or possible violations of the
OFPP Act provisions set forth elsewhere in 41 U.S.C. Sec. 423.
The
activities prohibited by the OFPP Act involve soliciting or discussing
post-government employment, offering or accepting a gratuity, and
soliciting or disclosing proprietary or source selection information.

MRI contends that its bid was responsive because the certificate in the
solicitation was intended for "reading and understanding and not for
specific execution" by bidders and, therefore, the firm properly left the
certificate blank.
MRI also asserts that the solicitation, on its face,
states that only successful bidders must complete the certificate, and
that bidders may complete the certificate at any time prior to award.
MRI
bases this contention on section L.7, entitled "Procurement Integrity
Provisions," which states that "if the resultant contract exceeds
$100,000, the apparent successful offeror shall be required to complete
the certification required by FAR 3.104-9(b) prior to contract award."
Finally, MRI argues that, in any event, its bid is responsive
notwithstanding its failure to submit a completed certification because
the signature on the front of its bid establishes MRI's intent to comply
with all the solicitation's requirements, and is therefore tantamount to
completing the certification.

MRI's argument that the certificate was informational only is both
unpersuasive and at odds with the text of the certificate and the explicit
instructions in the solicitation for completing the certificate.
The text
of the certificate advises bidders to enter existing violations or
possible violations of the OFPP Act, or to enter the word "none" on the
face of certificate to indicate that there are no existing violations.
addition, the provisions following the certificate specifically state that
each bidder is required to submit a signed certificate with its bid
submission and that the failure to do so will result in rejection of the
bid as nonresponsive.
FAR Secs. 52.203-8(c)(1) and (c)(3).
Given these
explicit instructions, MRI cannot reasonably argue that the certificate
was merely informational.

MRI also argues that despite the text of FAR Sec. 52.203-8(c)(1),
reprinted in full at section K.4 of the solicitation, section L.7 advised
that the certificate could be completed by apparent successful "offerors"
at any time prior to award.
According to MRI, section L.7 led MRI to
conclude that it need not provide a completed certificate with its bid.

MRI confuses the requirements applicable to a procurement using sealed
bids with those applicable to negotiated procurements.
The language of
section L.7 reflects and refers to the FAR provisions explaining the
procurement integrity requirements of the OFPP Act, which state that when
agencies use other than sealed bid procedures, signed and completed
certificates must be submitted no later than contract award.
FAR Sec.
3.104-9(b)(3)(ii).
These provisions do not apply to sealed bid
procurements, which are covered by a companion FAR provision requiring
that bids must be accompanied by signed and completed certificates when
submitted.
FAR Sec. 3.104-9(b)(3)(i).
In short, section L.7 was not
applicable to the procurement because it applies to offerors-- entities
that respond to requests for proposals-- not to bidders.
Although the
Commerce Department erroneously included section L.7 in an IFB, given the
clear language of FAR Sec. 52.203 8(c)(1), which, as stated above, is set
forth in full in the solicitation, we do not believe that MRI was
reasonably misled by section L.7.
Even if MRI's view were a reasonable
understanding of the solicitation, the question was at least ambiguous and
had to be challenged prior to bid opening.
See 4 C.F.R. Sec. 21.2(a)(1)
(1991); Wheeler Bros., Inc.; Defense Logistics Agency-- Recon.,
B-214081.3, Apr. 4, 1985, 85-1 CPD Para. 388.

Finally, MRI argues that even if the completed Certificate of Procurement
Integrity was required at the time of bid opening, MRI effectively
certified by signing its bid.
We disagree.
In a recent decision, Mid-
East Contractors, Inc., B-242435, Mar. 29, 1991, 91-1 CPD Para. ***, we
found that a bid was properly rejected as nonresponsive for the bidder's
failure to complete and sign the Certificate of Procurement Integrity,
even though the bidder signed its bid and acknowledged the amendment that
added the certification requirement to the solicitation.
Since the
certification provision, which implements several requirements of the OFPP
Act, imposes additional and substantial legal obligations on the
contractor, /1/ omission from a signed bid of a separately signed and
completed Certificate of Procurement Integrity is a material deficiency in
a bid because it calls into question the bidder's commitment to the
certificate's stated requirements.

Given the legal obligations imposed under the certificate and the fact
that the IFB specifically cautioned bidders, on the IFB cover sheet, to be
sure that all required provisions in section K were completed in full, we
cannot find that MRI unquestionably committed itself to the procurement
integrity requirements of the IFB merely by signing its bid.
/2/ See,
e.g., 52 Comp.Gen. 874 (1973). Since MRI did not provide any of the
required information and failed to submit a signed, completed Certificate
of Procurement Integrity, the agency properly rejected MRI's bid as
nonresponsive.
Mid-East Contractors, Inc., B-242435, supra.

The protest is denied.

/1/ For example, it imposes on one individual representative of the bidder a direct obligation to become familiar with the OFPP Act's prohibitions against certain conduct.

/2/ Although the text of the certificate incorporated into the IFB does not provide a distinct signature line, the solicitation's reproduction of the certificate provides ample space for a signature immediately below the instruction to sign the certificate. Further, below the signature space, the certificate text also directs certifiers to type their name. Again the text provides ample space to comply with the instructions. These facts differ from those in our recent decision in Shifa Servs., Inc., B-242686, May 21, 1991, 91-1 CPD Para. ***, where it was unclear where bidders were to sign in order to meet the Certificate of Procurement Integrity requirement because the solicitation provided neither a signature line nor adequate space to sign the certificate.