Matter of: Dennis T. Hardy Electric, Inc. File: B-250497.2 Date: February 8, 1993

B-250497.2: Feb 8, 1993

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PROCUREMENT Sealed Bidding Bids Certification Signatures Contract modification PROCUREMENT Sealed Bidding Invitations for bids Modification Photo copy Signatures There is no requirement that a bidder. Hardy argues that Malone's bid is nonresponsive because Malone failed to submit a signed Certificate of Procurement Integrity for contract modifications with its bid. VA determined that Malone's bid was actually responsive and took corrective action by terminating Hardy's contract for the convenience of the government and making award to Malone. Imposes substantial legal obligations and is thus a material solicitation term and a matter of responsiveness. A bid's responsiveness is challenged.

Matter of: Dennis T. Hardy Electric, Inc. File: B-250497.2 Date: February 8, 1993

PROCUREMENT Sealed Bidding Bids Certification Signatures Contract modification PROCUREMENT Sealed Bidding Invitations for bids Modification Photo copy Signatures There is no requirement that a bidder, in addition to submitting with its bid a completed and signed Certificate of Procurement Integrity, also complete and sign the procurement integrity certificate for contract modifications included in the solicitation.

Attorneys

DECISION Dennis T. Hardy Electric, Inc. protests the termination of its contract for the convenience of the government and the award of a contract to J.L. Malone & Associates, Inc., under invitation for bids (IFB) No. 622 -92-108, issued by the Department of Veterans Affairs (VA) to upgrade the existing electrical supply system at the Alvin C. York VA Medical Center, in Murfreesboro, Tennessee. Hardy argues that Malone's bid is nonresponsive because Malone failed to submit a signed Certificate of Procurement Integrity for contract modifications with its bid.

We deny the protest.

The IFB contained the Certificate of Procurement Integrity and Certificate of Procurement Integrity--Modification clauses, set forth in Federal Acquisition Regulation (FAR) Secs. 52.203-8 and 52.203-9 (FAC 90-5), respectively, as required by FAR Sec. 3.104-10 (FAC 90-2). These clauses implement the Office of Federal Procurement Policy (OFPP) Act, 41 U.S.C. Sec. 423(e) (1988 and Supp. II 1990), which precludes federal agencies from awarding a contract or modifying a contract, in excess of $100,000, unless the officer or employee of the contractor responsible for the bid or offer, or the modification, certifies in writing that neither it nor its employees has any information concerning violations or possible violations of the OFPP Act. The certifications require that the officer or employee responsible for the bid, offer or modification proposal become familiar with the prohibitions of the OFPP Act, and impose on the contractor, or its representative, a requirement to make full disclosure of any possible violations of the OFPP Act, and to certify to the veracity of the disclosure. See Mid-East Contractors, Inc., 70 Comp.Gen. 383 (1991), 91-1 CPD Para. 342.

The text of the procurement integrity clause, as set forth in FAR Sec. 52.203-8, informs bidders that the signed and completed certificate must be submitted with the bid, and warns that "[f]ailure of a bidder to submit the signed certificate with its bid shall render the bid nonresponsive." The text of the procurement integrity clause for contract modifications, as set forth in FAR Sec. 52.203-9, provides that the bidder agrees to execute the procurement integrity certificate for modifications "when requested by the [c]ontracting [o]fficer in connection with the execution of any modification of this contract."

At bid opening, VA received 17 bids, including the low bid of Malone and the next low bid of Hardy. In its bid, Malone completed and signed the certificate of procurement integrity but not the procurement integrity certificate required for contract modifications. The contracting officer rejected Malone's bid as nonresponsive and made award to Hardy as the next low responsive bidder. After Malone protested the rejection of its bid to our Office, VA determined that Malone's bid was actually responsive and took corrective action by terminating Hardy's contract for the convenience of the government and making award to Malone. This protest followed.

Hardy essentially protests that FAR Sec. 3.104-9(b)(3)(i)(A) requires that "the signed certifications [prescribed in FAR Sec. 3.104-10] shall be submitted by each bidder with the bid submission," and that FAR Sec. 3.104 -10 requires the contracting officer to insert both of the procurement integrity clauses set forth in FAR Secs. 52.203-8 and 52.203-9. Hardy thus argues that this means that, to be considered responsive, the bidder must submit with its bid both certificates signed and executed.

The certification requirement, set forth in FAR Sec. 52.203-8, imposes substantial legal obligations and is thus a material solicitation term and a matter of responsiveness. See Mid-East Contractors, Inc., supra. 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 requirements stated 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 (FAR Sec. 52.203-8), and given the express requirement for the certificate to be separately signed, a bid with an improperly executed Certificate of Procurement Integrity renders the bid nonresponsive. See Consolidated Metal Prods., Inc., B-244543, July 15, 1991, 91-2 CPD Para. 58.

Unlike the certification requirements set forth in FAR Sec. 52.203-8, the procurement integrity clause for contract modifications only requires, at bid submission, that the bidder promise to execute, upon request of the contracting officer at the time of a proposal for modifications, a new certificate. The bidder's promise to execute the modification certificate at some future date, when applicable, is made by the bidder's signature on its bid. Neither the IFB nor the text of the procurement integrity clause or certificate contemplates that a bidder will complete and sign the procurement integrity certificate for contract modifications until a proposal for contract modification is made. This is consistent with the requirements of the OFPP Act, as implemented by the FAR, which require contractors, prior to a contract modification in excess of $100,000, to certify in writing their familiarity with the requirement of the OFPP Act and to disclose any known violations of the Act. 41 U.S.C. Sec. 423(e); FAR Sec. 43.106. To require the completion of the modification certificate at the time of bid submission, as Hardy argues, would not satisfy the statutory purpose of ensuring that, at the time of a contract modification, the contractor again certify that it is aware of its legal obligation and disclose any known violations of the OFPP Act. In any case, since Malone has already properly executed and signed the certificate of procurement integrity for its bid (FAR Sec. 52.203-8), certifying that it is unaware at the time of bid submission of any violation of the OFPP Act, there would be no useful purpose in requiring the bidder to again certify, at bid submission, under the modification certificate (FAR Sec. 52.203-9) that it is unaware of any OFPP Act violations.

Therefore, Malone's bid was responsive. Since the agency correctly concluded that the rejection of Malone's low bid was improper, it acted appropriately in terminating Hardy's contract for the convenience of the government and making award to Malone.

The protest is denied.