Matter of: Coast Waste Management, Inc. File: B-251167.3 Date: June 10, 1993

B-251167.3: Jun 10, 1993

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PROCUREMENT Contractor Qualification Responsibility Contracting officer findings Affirmative determination GAO review Protest alleging generally that awardee's affiliate has committed various antitrust violations is dismissed because it in essence challenges the contracting officer's determination that the awardee is a responsible contractor. The General Accounting Office will not review a contracting officer's determination of an awardee's responsibility absent circumstances not alleged or evident here. Coast Waste contends that the agency's rejection of its low bid as nonresponsive for failure to submit a signed Certificate of Procurement Integrity was improper. The protest is denied in part and dismissed in part.

Matter of: Coast Waste Management, Inc. File: B-251167.3 Date: June 10, 1993

PROCUREMENT Sealed Bidding Terms Materiality Integrity certification PROCUREMENT Sealed Bidding Bids Responsibility Integrity certification Omission Office of Federal Procurement Policy Act and its implementing regulations contemplate submission of a new Certificate of Procurement Integrity for each procurement; accordingly, a bidder's submission of a Certificate of Procurement Integrity under a prior solicitation does not cure a bidder's failure to provide a signed certificate with its bid under current solicitation. PROCUREMENT Contractor Qualification Responsibility Contracting officer findings Affirmative determination GAO review Protest alleging generally that awardee's affiliate has committed various antitrust violations is dismissed because it in essence challenges the contracting officer's determination that the awardee is a responsible contractor; the General Accounting Office will not review a contracting officer's determination of an awardee's responsibility absent circumstances not alleged or evident here.

Attorneys

DECISION Coast Waste Management, Inc. protests the award of a contract to Waste Management of North County under invitation for bids (IFB) No. N68711-92-B-4128, issued by the Department of the Navy for solid waste collection and disposal services at Camp Pendleton, California. Coast Waste contends that the agency's rejection of its low bid as nonresponsive for failure to submit a signed Certificate of Procurement Integrity was improper. Coast Waste also challenges the award to Waste Management because an affiliate of Waste Management has been indicted for antitrust violations.

The protest is denied in part and dismissed in part.

The solicitation was issued on October 5, 1992, and contemplated the award of a 1-year firm, fixed-price indefinite quantity contract. The Navy subsequently issued five amendments to the IFB; amendment No. 4--which is at issue in this case--contained the Certificate of Procurement Integrity clause, Federal Acquisition Regulation (FAR) Sec. 52.203-8, as required by FAR Sec. 3.104-10(a). This clause implements 41 U.S.C. Sec. 423(e)(1) (Supp. III 1991), 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. The activities prohibited by the OFPP Act, applicable to contractor employees and representatives and to government procurement officials, involve soliciting or disclosing proprietary or source selection data.

The Navy received 10 bids by the January 6, 1993, bid opening date. After discovering that Coast Waste had failed to complete and sign the Certificate of Procurement Integrity, the contracting officer rejected Coast Waste's bid as non-responsive and made award to Waste Management. Coast Waste's protest to our Office, challenging the rejection of its bid and the ultimate award decision, followed.

Coast Waste contends that the rejection of its bid as non-responsive based on its failure to submit a signed and completed Certificate of Procurement Integrity with its bid was improper because the agency had a signed and completed certificate from Coast Waste on file 60 days prior to
the bid opening for the current procurement; that certificate had been
submitted with Coast Waste's bid under an interim solicitation for the
same services for a 2-month base period and two 1-month option periods.
The protester also argues that the agency's rejection of its bid as
nonresponsive was improper because the bid abstract completed by the
contracting officer at bid opening indicates that Coast Waste's bid was
responsive.

Contrary to the protester's suggestion, the certificate it submitted
under a previous procurement does not render its bid responsive. Both the
OFPP Act and its implementing regulations define a federal agency
procurement as involving 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)(1); FAR Sec. 3.104-
4(c)(1); Hein-Werner Corp., 72 Comp.Gen. 421, 92-1 CPD Para. 484. Thus,
different solicitations calling for specific services to be performed for
different specified time periods constitute separate procurement actions.
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 contract may
not be awarded unless an officer or employee of the contractor
"responsible for the offer or bid for such contract, or modification or
extension of such contract . . . certifies in writing" as to its
compliance with the OFPP Act's procurement integrity provisions
"pertaining to such procurement." FAR Sec. 3.104-4(c)(2) similarly
provides that "[e]ach 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." The
certification provisions in both the interim and the subject IFBs
specifically identify the contractor's disclosure and certification as
"pertaining to this procurement" and relating to the 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 Coast Waste submitted a Certificate of Procurement Integrity
under a prior solicitation is irrelevant in determining its compliance
with the OFPP Act requirements for this procurement. Hein-Werner Corp.,
supra.[1]

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 Coast Waste failed to submit a signed Certificate of Procurement
Integrity with its bid for this procurement, the agency properly rejected
its bid as nonresponsive. Hein-Werner Corp., supra. The fact that the bid
abstract indicates that Coast Waste submitted all the necessary bid
documents does not alter the situation. An agency's failure to reject a
bid as nonresponsive immediately at the time of bid opening does not
constitute waiver of the bidder's failure to provide a properly executed
certificate or estop the agency from rejecting the bid later after the bid
has been determined to be nonresponsive. Darla Envtl., Inc., B-234560, May
12, 1989, 89-1 CPD Para. 454.

The protester alleges that its bid should have been found responsive
because the agency has used inconsistent practices when requiring
completed certifications. To support its claim, the protester states that
a solicitation issued by the agency after the subject solicitation does
not contain the Certificate of Procurement Integrity clause. Each
procurement action is a separate transaction and the action taken under
one is not relevant to the propriety of the action taken under another
procurement for the purposes of a bid protest. Westbrook Indus., Inc.,
B-248854, Sept. 28, 1992, 92-2 CPD Para. 213. Simply stated, the fact that
the agency in an unrelated procurement--correctly or incorrectly--did not
require a signed and completed certificate does not affect the protester's
obligation to furnish one in this case.

Finally, we have no basis to review Coast Waste's objection to the
agency's award to Waste Management. According to Coast Waste, Waste
Management should not have received the award because its affiliate has
been indicted for antitrust violations. In essence, Coast Waste is
challenging the contracting officer's determination that Waste Management
is a responsible contractor. An agency's affirmative determination of a
contractor's responsibility will not be reviewed by our Office absent a
showing of possible fraud or bad faith on the part of procurement
officials, or that definitive responsibility criteria in the solicitation
may have been misapplied. 4 C.F.R. Sec. 21.3(m)(5); King-Fisher Co.,
B-236687.2, Feb. 12, 1990, 90-1 CPD Para. 177. Where, as here, a protester
makes such a challenge, but fails to make a showing (or, in fact, any
contention) that procurement officials have acted fraudulently or in bad
faith, or that definitive responsibility criteria have been misapplied, we
have no basis to review the protest. Accordingly, this protest basis is
dismissed.

The protest is denied in part and dismissed in part.

1. Contrary to the protester's suggestion, it is not reasonable to conclude that the protester's alleged confusion regarding the total number of pages contained in amendment No. 4 relieved it of its obligation to submit the certificate. Amendment No. 4 specifically advised bidders to "[r]eplace the bid package with the enclosed bid package (44 pages) and that [f]ailure to do so will make the bid nonresponsive." While the first 10 pages of the package referenced 62 pages (e.g., 1 of 62 pages) the package--including the subject Certificate of Procurement Integrity-- actually contained 44 pages, as stated on the cover sheet of the amendment. Consequently, even if the protester was misled by the reference to 62 pages--and, arguably, concluded that there were missing pages--it was obligated, at a minimum, to submit the information requested in the pages it did receive.