B-243791.3, Aug 27, 1991

B-243791.3, Aug 27, 1991

DIGEST: Bidder unequivocally committed itself to the requirements of the Certificate of Procurement Integrity by completing the certificate, which failed to contain a space for a signature, and signing the page in the margin adjacent to the certificate; the fact that the bidder's president signed the firm's bid using his full name, but signed the page containing
the certificate with a shorter signature, is not objectionable where the
record is clear that the same person signed both the bid and the
certificate.

Attorneys

David Morles:

David Morales protests the termination of his contract for the
convenience of the government and the award of a contract to Xperts, Inc.,
under invitation for bids (IFB) No. N62470-91C-5395, issued by the
Department of the Navy for grounds maintenance services at the Roosevelt
Roads Naval Station, Puerto Rico.
Mr. Morales argues that Xperts failed
to properly execute the Certificate of Procurement Integrity and therefore
its bid was nonresponsive.

We deny the protest.

The IFB contained the Certificate of Procurement Integrity clause, as set
forth in Federal Acquisition Regulation (FAR) Sec. 52.203-8, and advised
offerors that the "failure of a bidder to submit the signed certificate
with its bid shall render the bid nonresponsive."
The certificate only
provided space for listing violations or possible violations of the Office
of Federal Procurement Policy (OFPP) Act, 41 U.S.C. Sec. 423 (Supp. I
1989), and did not provide a space for bidders' signatures or identify
where bidders should sign the certificate.

The Navy received seven bids by the March 29, 1991, bid opening.
The
four lowest bids were received from J.D. Landscaping Corp. ($1,770,062);
H.P. Construction ($2,089,839); Xperts ($2,139,414); and David Morales
($2,188,105).
The contracting officer rejected the bids of J.D.
Landscaping, H.P. Construction, and Xperts as nonresponsive because those
bidders did not properly execute the Certificate of Procurement
Integrity.
On April 12, the Navy awarded the contract to Mr. Morales.
Xperts protested the award to our Office on April 26.
/1/

In response to Xperts's protest, the Navy determined that Xperts had
properly executed the certificate and that its bid was responsive.
The
Navy terminated Mr. Morales's contract for the convenience of the
government and awarded the contract to Xperts.
Consequently, we dismissed
Xperts's protest as academic.

Xperts's bid was signed by the company president, who, in addition to
signing the bid, signed every page of the bid, including the page
containing the Certificate of Procurement Integrity.
The certification
was also filled out to indicate that the certifier was unaware of any
violations or possible violations of the OFPP Act.
Mr. Morales,
nevertheless, protests that Xperts did not properly execute the
certificate and that therefore the Navy's termination of his contract was
improper.
Specifically, Mr. Morales argues that Xperts did not
demonstrate its specific intent to be bound by the Certificate of
Procurement Integrity requirements by the signature on the Certificate of
Procurement Integrity page; rather, the protester argues, the signature on
each page merely was "an internal control action" designed "to prevent ...
somebody from removing or changing a bid document."
Mr. Morales also
complains that Xperts's president's "short signature" on each page of its
bid is not the same as his full signature on the face of the bid.

The certification requirement, which imposes substantial legal
obligations on the contractor, is a material solicitation term and, thus,
a matter of responsiveness.
See Mid-East Contractors, Inc., B-242435,
Mar. 29, 1991, 70 Comp.Gen. *** , 91-1 CPD Para. 342.
Where, as here, a
bid's responsiveness is challenged, we review the bid to determine whether
the bid represents an unequivocal commitment to perform without exception
the specifications called for in the IFB so that the bidder will be bound
to perform in accordance with all the material terms and conditions.
Contech Constr. Co., B-241185, Oct. 1, 1990, 90-2 CPD Para. 264.
As a
result of the substantial legal obligations imposed by the certificate,
and given the express requirement for the certificate to be separately
signed, the omission from a bid of a signed and completed Certificate of
Procurement Integrity leaves unresolved a bidder's legal commitment to
comply with the certification requirements.
Consolidated Metal Prods.,
Inc., B-244543, July 15, 1991, 91-2 CPD Para. *** .

Here, we think Xperts unequivocally committed itself to the certification
requirements by completing the certificate and separately signing the page
that contained the certificate clause.
Generally, a bidder may evidence
its commitment to solicitation requirements in a manner other than that
specified in the solicitation.
See 51 Comp.Gen. 329 (1971); Bartley,
Inc., 53 Comp.Gen. 451 (1974), 74-1 CPD Para. 1.
While a bidder must
separately sign the Certificate of Procurement Integrity, apart from its
signature on the bid, to demonstrate its commitment to the substantial
legal obligations imposed by the certificate, see Ed A. Wilson, Inc.,
B-244634, July 12, 1991, 91-2 CPD Para. *** , we see no reason why the
signature manifesting that commitment must be within the four corners of
the certification itself.
In our view, Xperts's signature on the page
containing the Certificate of Procurement Integrity evidenced its
commitment to the certificate requirements.
/2/ That Xperts signed each
page of its bid neither lessened nor negated this commitment; this only
shows that the firm separately committed itself to the requirements
contained on each page signed.
Moreover, given the certificate's failure
to provide a space for bidders' signatures or to instruct bidders where to
sign, Xperts cannot be faulted for separately signing adjacent to the
certificate.
/3/

We also find without merit the protester's argument concerning Xperts's
"short signature."
It is true that the president's signature on the face
of the bid is more elaborate than his signature on the other bid pages,
including the page containing the certificate.
The protester does not
contend that the person signing Xperts's bid is not the same person
signing each of the bid pages, including the Certificate of Procurement
Integrity, or that there is any ambiguity concerning the identity of the
person signing the bid and bid pages.
Indeed, the record is clear that
the same person signed the face of the bid and the other bid pages.
See,
e.g., Danish Arctic Contractors, B-225807, June 12, 1987, 87-1 CPD Para.
590 (differences between a surety agent's signatures in a bid bond were
not grounds for rejection of a bid, where the record established the
identity of the surety agent).
Under the circumstances, we fail to see
how this "short signature" is any less valid than the longer signature on
the face of the bid.
See B-158607, Apr. 21, 1966 (a bidder's initials,
along with his typewritten name, evidenced the bidder's commitment to the
solicitation requirements); see also Uniform Commercial Code 1-201(39)
(Official Comment-- a complete signature is not required to be legally
binding).
/4/

We deny the protest.

Honorable Jaime B. Fuster House of Representatives

Mr. Fuster:

This refers to your letter dated August 8, 1991, concerning the protest
filed by your constituent, David Morales, against the termination of his
contract for the convenience of the government and the award of a contract
to Xperts, Inc., under invitation for bids No. N62470-91-B-5395, issued by
the Department of the Navy, for grounds maintenance services at the
Roosevelt Roads Naval Station, Puerto Rico.

By decision of today, copy enclosed, we have denied Mr. Morales's
protest.
To the extent that you are concerned that Mr. Morales incurred
costs in preparation for performance of the contract before it was
terminated, this is a matter that should be raised directly with the
contracting officer.

/1/ On April 26, we dismissed J.D. Landscaping's protest that only objected to the agency's affirmative determination ofMr. Morales's responsibility.

/2/ The Certificate of Procurement Integrity is the only clause contained on the page.

/3/ In Shifa Servs. Inc., B-242686, May 20, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 483, we found that the failure of an IFB's Certificate of Procurement Integrity clause to provide asignature line or space for a signature, despite a parenthetical request for the "signature of the officer or employee responsible" for the certification, was a latent ambiguity that required cancellation of the IFB after bid opening. Here, Mr. Morales, who signed the certificate, is not prejudiced by the absence of a signature line in the certificate. In addition, neither of the two bidders that were lower priced than Xperts protested the agency's determination that they were nonresponsive or that they were misled by the absence of a signature line.

/4/ The General Accounting Office will find the UniformCommercial Code controlling to the maximum extent practicablewhere not inconsistent with federal interest, law, or court decision. See 51 Comp.Gen. 668, 670 (1970); 62 Comp.Gen. 121, 122 (1983).