Matter of: Bootz Distribution File: B-251155 Date: February 10, 1993

Matter of: Bootz Distribution File: B-251155 Date: February 10, 1993

PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards PROCUREMENT Sealed Bidding Invitations for bids Certification Signature lines Omission Where bidder failed to sign required Certificate of Procurement Integrity on designated signature line, bidder is not unequivocally committed to certificate's terms and bid must be rejected as nonresponsive; under these circumstances, bidder is not an interested party to challenge agency's rejection of its bid due to an inadequate bid guarantee since bidder's failure to sign the required certificate renders it ineligible for award even if protest were sustained.

Attorneys

DECISION Bootz Distribution protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. USM 92-65, issued by the Department of the Treasury, United States Mint, for storage and drayage services for the Denver, Colorado, Mint. Bootz contends that an "error" in its bid guarantee does not provide a basis for rejecting its bid as nonresponsive.

We dismiss the protest.

The solicitation was issued as a total small business set-aside on August 25, 1992, and contemplated the award of a fixed-price contract for a 1- year base period and 2 option years. The IFB required that bidders submit bid guarantees in the amount of 20 percent of the bid price and indicated that the minimum bid acceptance period was 60 days; additionally, because the contract award was expected to exceed $100,000, the solicitation incorporated the requirement for a Certificate of Procurement Integrity clause pursuant to Federal Acquisition Regulation (FAR) Sec. 52.203-9.

By the September 28 bid opening, five bids were received. Although Bootz was the apparent low bidder, the agency rejected its bid as nonresponsive since the irrevocable letter of credit (LOC) submitted as its bid guarantee was only effective for 30 days--from September 25 until October 24, 1992. On October 29, Bootz filed this protest with our Office; in its protest Bootz contends that the October 24 limitation in its LOC is the result of an "honest mistake" and, accordingly, the agency should permit Bootz to correct this error so that it can receive contract award as the low bidder.

Under the Competition in Contracting Act of 1984, and our Regulations, a protester must qualify as an interested party before its protest may be considered by our Office. See 31 U.S.C. Sec. 3553 (1988); 4 C.F.R. Sec. 21.1(a) (1992). That is, a protester must have a direct economic interest which would be affected by the award of a contract or the failure to award a contract. 31 U.S.C. Sec. 3551(2); 4 C.F.R. Sec. 21.0(a). Here, even if we were to sustain Bootz's protest, the record shows that Bootz would not be eligible for award since it failed to sign the required Certificate of Procurement Integrity.

The Certificate of Procurement Integrity requirement, set forth at FAR Sec. 52.203-9, implements the Office of Federal Procurement Policy (OFPP) Act, 41 U.S.C. Sec. 423 (1988 and Supp. II 1990), a statute which 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 OFPP Act set forth elsewhere in 41 U.S.C. Sec. 423. Shifa Servs., Inc., 70 Comp.Gen. 502 (1991), 91-1 CPD Para. 483. 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); Hein-Werner Corp., 71 Comp.Gen. 421 (1992), 92-1 CPD Para. 484; Mid East Contractors, Inc., 70 Comp.Gen. 393 (1991), 91-1 CPD Para. 342.

In this case, the record shows that although Bootz's certificate identified an individual responsible for the additional requirements imposed by the terms of the certificate, that individual did not sign the certificate's designated signature line, and thus did not establish the protester's intent to be bound to the terms of the certificate. See G. Penza & Sons, Inc., B-249321, Sept. 2, 1992, 92-2 CPD Para. 147. Since Bootz's failure to sign the Certificate of Procurement Integrity clearly renders its bid nonresponsive and therefore ineligible for award, Bootz would not be in line for award even if its protest regarding the rejection of its bid due to an improper bid guarantee were sustained. Under these circumstances, Bootz lacks the direct economic interest necessary to be an interested party to pursue the protest. See U.S. Def. Sys., Inc., B-248928, Sept. 30, 1992, 92-2 CPD Para. 219.

The protest is dismissed.