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B-247459, Jun 2, 1992, 71 Comp.Gen. 421

B-247459 Jun 02, 1992
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PROCUREMENT - Bid Protests - GAO procedures - Protest timelines - 10-day rule PROCUREMENT - Sealed Bidding - Bids Responsiveness - Certification Signatures Protest challenging requirement for submission of a signed Certificate of Procurement Integrity is dismissed as untimely where solicitation clearly advised prospective bidders that the failure to submit the signed certificate with the bid would render the bid nonresponsive. Bid was properly rejected as nonresponsive for failure to submit a signed Certificate of Procurement Integrity because completion of the certificate imposes material legal obligations on the bidder to which it is not otherwise bound. The solicitation was issued on December 12.

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B-247459, Jun 2, 1992, 71 Comp.Gen. 421

PROCUREMENT - Bid Protests - GAO procedures - Protest timelines - 10-day rule PROCUREMENT - Sealed Bidding - Bids Responsiveness - Certification Signatures Protest challenging requirement for submission of a signed Certificate of Procurement Integrity is dismissed as untimely where solicitation clearly advised prospective bidders that the failure to submit the signed certificate with the bid would render the bid nonresponsive. Bidder's alleged lack of knowledge regarding identity of contracting officer does not bar bidder from submitting properly completed and signed Certificate of Procurement Integrity with its bid since this certification only requires the bidder to disclose possible or actual Office of Federal Procurement Policy Act violations to the best of its knowledge and belief. PROCUREMENT - Sealed Bidding - Bids Responsiveness - Certification Prior procurements Office of Federal Procurement Policy Act and its implementing regulations contemplate submission of a new Certificate of Procurement Integrity for each procurement; accordingly, a Certificate of Procurement Integrity submitted by protester under prior procurement does not correct bidder's failure to provide a signed certificate with its bid under current solicitation. Bid was properly rejected as nonresponsive for failure to submit a signed Certificate of Procurement Integrity because completion of the certificate imposes material legal obligations on the bidder to which it is not otherwise bound. James A. Wilke, Esq., for the protester. Kurt D. Summers, Esq., General Services Administration, for the agency. Behn Miller, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

Hein-Werner Corporation:

Hein-Werner Corporation protests the rejection of its bid as nonresponsive for failure to include a signed Certificate of Procurement Integrity as required by invitation for bids (IFB) No. 6FEP CO-FM-920052-S-1-14-92, issued by the General Services Administration (GSA) for hydraulic and manual jacks.

We dismiss the protest in part and deny it in part.

The solicitation was issued on December 12, 1991, and contemplated the award of a 2-year, fixed-price, indefinite quantity contract. The IFB's pricing schedule contained 23 contract line items; under the terms of the solicitation, bidders could submit bids for one or more of these items.

Because the estimated value of all contract awards was expected to exceed $100,000, the solicitation contained the Certificate of Procurement Integrity clause, Federal Acquisition Regulation (FAR) Sec. 52.203-8, as required by FAR Sec. 3.104-10(a). /1/ This clause implements 41 U.S.C. Sec. 423(e)(1) (Supp. II 1990), 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 procurement integrity provisions of the Office of Federal Procurement Policy (OFPP) Act set forth elsewhere in 41 U.S.C. Sec. 423 (1988 and Supp. II 1990). The activities prohibited by the OFPP Act, applicable to contractor employees and representatives and to government procurement officials, involve soliciting or discussing post- government employment, offering or accepting a gratuity, and soliciting or disclosing proprietary or source selection data.

At the January 14, 1992, bid opening, 12 bids were received. On January 16, after discovering that Hein-Werner had failed to complete and sign the Certificate of Procurement Integrity, the contract specialist rejected Hein-Werner's bid as nonresponsive. /2/ On January 31, Hein-Werner filed this protest with our Office. In its protest, Hein-Werner first contends that the requirement that a signed Certificate of Procurement Integrity be submitted with its bid is "unreasonable" since the OFPP Act only provides that a federal agency "may not award a contract" without the certification. See 41 U.S.C. Sec. 423(e)(1). Hein-Werner also contends that the requirement was unreasonable since Hein-Werner did not know the identity of the contracting officer for this procurement and therefore could not complete the certificate. In the alternative, Hein-Werner argues that because it submitted a signed Certificate of Procurement Integrity under a prior procurement for the same items, its current bid is responsive.

To the extent Hein-Werner is challenging the requirement that a signed certificate be submitted with its bid, the protest is untimely. Under our Bid Protest Regulations, a protest based on an alleged solicitation impropriety-- such as the "unreasonable" certification submission requirement here-- which is apparent from the face of the solicitation must be filed prior to bid opening. 4 C.F.R. Sec. 21.2(a)(1) (1992); Summit Forests, Inc., B-242991, Apr. 25, 1991, 91-1 CPD Para. 411. this case, the solicitation set forth the full text of FAR Sec. 52.203-8, "Certificate of Procurement Integrity," which expressly provides that the "failure of a bidder to submit the signed certificate with its bid shall render the bid nonresponsive. Additionally, the cover page of the IFB advised all bidders to "PAY PARTICULAR ATTENTION" to the Certificate of Procurement Integrity provisions set forth in the text of the solicitation. Since the requirement that the Certificate of Procurement Integrity be submitted with each contractor's bid was clearly set forth in the IFB and because Hein-Werner failed to challenge this requirement prior to the January 14 bid opening, this ground of protest is untimely. /3/

We find Hein-Werner's contention that it was unable to provide a signed certificate with its bid because the firm did not know the identity of the contracting officer for this procurement to be without merit. Under the terms of the OFPP Act and its implementing regulations, specific knowledge of a possible violator's actual identity is not a prerequisite to proper certification; the language of FAR Sec. 52.203-8 merely requires the contractor to certify that "to the best of my knowledge and belief, with the exception of any information described in this certificate, I have no information concerning a violation or possible violation ... of the OFPP Act."

The purpose of this certification requirement is disclosure of any and all knowledge in a firm's possession regarding possible OFPP Act violations by any of the parties; accordingly, we do not see how a bidder's lack of knowledge regarding the exact identity of the agency contracting officer bars it from submitting a properly completed and signed certificate with its bid.

Nor do we find that the certificate submitted by Hein-Werner under a
previous procurement for these same items renders its current bid
responsive. /4/
Both the OFPP Act and its implementing regulations define
a federal agency procurement as a distinct time period "beginning" with a
specific procurement action request and "concluding" with a contract award
or contract modification.
See 41 U.S.C. Sec. 423(p); FAR Sec. 3.104-
4(c)(1).
Thus, each contract award or modification constitutes a separate
procurement action.
With regard to the requirement for a Certificate of
Procurement Integrity, 41 U.S.C. Sec. 423(e)(1)(A)(i) specifically
provides that "a Federal agency may not award a contract ... unless the
contractor responsible for the offer or bid for such contract, or the
modification or extension of such contract ... certifies in writing" as to
its compliance with the OFPP Act's procurement integrity provisions for
"such procurement."
FAR Sec. 3.104-4(c)(2) similarly provides that "each
contract award and each contract modification constitutes a separate
procurement action]
i.e., a separate period to which the prohibitions and
the requirements of the Act apply."

Finally, the certification provisions set forth in the actual certificate
itself specifically identify the contractor's disclosure and certification
as "pertaining to this procurement" and relating to OFPP Act violations
"occurring during the conduct of this procurement."
See FAR Sec. 52.203-
8.

Since the OFPP Act and its implementing regulations clearly contemplate
the submission of a new signed certificate for each contract award, the
fact that Hein-Werner submitted a Certificate of Procurement Integrity
under a prior solicitation is irrelevant in determining its current
compliance with the OFPP Act requirements for this procurement.

As a result of the substantial legal obligations imposed by the
certification, omission from a bid of a signed Certificate of Procurement
Integrity leaves unresolved a bidder's agreement to comply with a material
requirement of the IFB; accordingly, a bidder's failure to submit a signed
certificate with its bid is a material deficiency requiring that the bid
be rejected as nonresponsive.
See FAR Sec. 14.404-2(m); Mid-East
Contractors, Inc., 70 Comp.Gen. 383 (1991), 91-1 CPD Para. 342.
Here,
because Hein-Werner failed to submit a signed Certificate of Procurement
Integrity with its bid for this procurement, we find the agency's
rejection of its bid as nonresponsive to be proper.
See McGuire
Refrigeration, Inc., B-242754, May 31, 1991, 91-1 CPD Para. 519.

The protest is dismissed in part and denied in part.

/1/ Where, as here, the estimated value of the orders to be placed under an indefinite quantity contract is expected to exceed $100,000, the solicitation properly requires submission of a Certificate of Procurement Integrity. See Service Technicians, Inc., 70 Comp.Gen. 676 (1991), 91-2 CPD Para. 136.

/2/ Hein-Werner was the low bidder for three items and secondlow bidder for six items.

/3/ In any event, we have expressly upheld the requirement that the Certificate of Procurement Integrity be submitted with a firm's bid. See American Dredging Co., B-244790, Oct. 29, 1991, 91-2 CPD Para. 396.

/4/ GSA issued a solicitation for these items in December 1989 under which Hein-Werner received contract award. As issued, the 1989 solicitation required bidders to complete and sign a Certificate of Procurement Integrity. Although this certification provision was later deleted from the solicitation-- due to the fact that Congress suspended the OFPP Act provisions requiring the certification from December 1, 1989, through December 1, 1990-- Hein-Werner nonetheless submitted a properly completed and signed certificate with its bid for that procurement.

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