B-245572, Jan 13, 1992

B-245572: Jan 13, 1992

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DIGEST: Protest that agency improperly rejected protester's bid as nonresponsive for failure to furnish a signed Certificate of Procurement Integrity with its bid is denied where bid package received by protester advised that completed certificate was required. Since completion of the required certificate imposes material legal obligations upon the bidder to which it is not otherwise bound. The bid was rejected because Thalle failed to complete the Certificate of Procurement Integrity as required by the IFB. Information on the importance of the certificate was included in the bid package which included "CAUTION" and "Cover" pages to the IFB advising bidders that failure to submit a signed certificate with a bid may render the bid nonresponsive.

B-245572, Jan 13, 1992

DIGEST: Protest that agency improperly rejected protester's bid as nonresponsive for failure to furnish a signed Certificate of Procurement Integrity with its bid is denied where bid package received by protester advised that completed certificate was required, even if it did not contain a blank certificate as the protester alleges, since completion of the required certificate imposes material legal obligations upon the bidder to which it is not otherwise bound.

Attorneys

Thalle Construction Co., Inc.:

Thalle Construction Co., Inc. protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. DAAG60-91-B-0090, issued by the Department of the Army for the replacement of a storm water culvert at the United States Military Academy, West Point, New York. The bid was rejected because Thalle failed to complete the Certificate of Procurement Integrity as required by the IFB.

We deny the protest.

The IFB, issued on July 22, 1991, incorporated the Certificate of Procurement Integrity clause, Federal Acquisition Regulation (FAR) Sec. 52.203-8. Information on the importance of the certificate was included in the bid package which included "CAUTION" and "Cover" pages to the IFB advising bidders that failure to submit a signed certificate with a bid may render the bid nonresponsive.

Of the eight bids received by the August 22 bid opening date, Thalle was the apparent low bidder. However, since Thalle's bid did not include a signed Certificate of Procurement Integrity, by letter dated August 26,
the Army advised Thalle that its bid was nonresponsive and could not be
considered for award.
By letter dated August 29, Thalle protested to the
agency and, when that protest was denied, Thalle protested to our Office
on September 10.

In its protest, Thalle asserts that the solicitation package it received
from the Army was incomplete since it did not include a blank
certificate.
Thalle also asserts that the solicitation did not require
rejection of its bid for failure to submit a signed certificate.
Rather,
Thalle argues that since the solicitation states that bids "may" be deemed
nonresponsive if the certificate is not included, the determination is
discretionary.
Thalle contends that the agency has abused its discretion
in finding Thalle nonresponsive and is penalizing Thalle for the agency's
failure to provide Thalle with a complete and accurate bid package.

The agency states that it followed its standard assembly procedure for
all bid packages and that it believes that the certification was part of
Thalle's package.
The agency notes that of the eight bids received, only
Thalle's bid failed to include a signed certificate.
The Army argues that
Thalle's failure to submit a signed certificate was, in fact, the result
of its lack of diligence in reading the bid package.

As explained in Environmental Management Servs., B-244783, Aug. 1, 1991,
91-2 CPD Para. 114, the Certificate of Procurement Integrity imposes
additional legal requirements upon the bidder materially different from
those to which the bidder is otherwise bound either by its bid or by law.
In particular, the certificate requires the bidder to become familiar with
the prohibitions of the Office of Federal Procurement Policy Act, 41
U.S.C. Sec. 423 (West Supp. 1990), and to make full disclosures of any
possible violations of the Act.
The Act and the certificate expressly
require a separately signed certification agreeing to comply with various
provisions of the Act as a condition of award.
As a result of the
substantial additional legal obligations imposed by the certificate, and
given the express requirement for the certification to be separately
signed, omission from a bid of a signed certificate leaves unresolved a
bidder's legal commitment to comply with the material requirements of the
IFB and requires that the bid be rejected as nonresponsive.
See also FAR
Sec. 14.404-2(m).

Thalle asserts that a blank certificate was not included in its bid
package and that it is being penalized for the agency's "misconduct."
Even if Thalle's allegation is correct, the bid contained ample cautionary
language warning of the consequences of failing to provide a signed
certificate to put Thalle on notice of the requirement, so that Thalle was
obligated to avail itself of reasonable opportunities to obtain the
required document.
See Fort Myer Constr. Corp., B-239611, Sept. 12, 1990,
90-2 CPD Para. 200; D. M. Baker, B-223091; B-223156, Aug. 11, 1986, 86-2
CPD Para. 175.
Thus, we do not conclude that the agency wrongly rejected
the protester's bid as nonresponsive.

The protest is denied.