B-245532, October 22, 1991

B-245532, October 22, 1991

DIGEST: Bid was properly rejected as nonresponsive where the bidder failed to submit a signed Certificate of Procurement Integrity with its bid.

Attorneys

Ted's Trash Service, Inc.:

Ted's Trash Service, Inc. protests the rejection of its bid as nonresponsive for failure to include with its bid a signed Certificate of Procurement Integrity, as required by invitation for bids (IFB) No. GS-06P -91-GXC-0070, issued by the General Services Administration.

We dismiss the protest.

The IFB, incorporated the Certificate of Procurement Integrity clause, Federal Acquisition Regulation (FAR) Sec. 52.203-8 (FAC 90-2) as required by FAR Sec. 3.104-10(a) (FAC 90-2). This clause implements the Office of Federal Procurement Policy (OFPP) Act, 41 U.S.C.A. Sec. 423(e)(1) (West Supp. 1991), 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 OFPP Act. The activities prohibited by the OFPP Act involve soliciting or discussing post-government employment, offering or accepting a gratuity, and soliciting or disclosing proprietary or source selection information. Under FAR Sec. 52.203-8, bidders are to complete the certificate, where indicated, by identifying the individual certifier, providing the solicitation number and the name of the offeror, listing all violations or possible violations of the OFPP Act (or entering "none" if none exists), and signing the certificate. FAR Sec. 3.104-9(b)(3) (FAC 90-2) provides that for procurements using sealed bidding procedures, as here, a signed procurement integrity certification "shall be submitted by each bidder with the bid submission ...." FAR Sec. 14.404-2(m) (FAC 90-5) provides that "a bid shall be rendered nonresponsive and rejected if the bidder fails to submit the signed certificate... with its bid." Section K of the IFB similarly cautioned prospective bidders that the certification was a material representation of fact to be relied on in awarding the contract and that the failure of a bidder to submit the signed certificate with its bid by bid opening shall render the bid nonresponsive.

Ted's submitted the low bid. However, because its bid did not contain a signed Certificate, it was rejected as nonresponsive.
Ted's believes that
it should be permitted to furnish a completed certificate after bid
opening so that an award may be made to the firm.

The certification's requirements obligate a named individual-- the
officer or employee of the contractor responsible for the bid-- to become
familiar with the prohibitions of the OFPP Act, and impose on the bidder,
and its representative, a requirement to make full disclosure of any
possible violations of the OFPP Act, and to certify to the veracity of
that disclosure.
In addition, the signer of the certification is required
to collect similar certifications from all other individuals involved in
the preparation of bids or offers.
The certification provisions also
prescribe specific contract remedies-- including withholding of profits
from payments and terminating errant contractors for default-- not
otherwise available.
These provisions, which impose substantial legal
obligations on the contractor, are materially different from those to
which the bidders otherwise are bound; accordingly, the requirement for a
separate, signed and completed Certificate of Procurement Integrity, to be
submitted with the bid submission, is a material requirement of the IFB
that affects the bid's responsiveness.
See Shifa Servs., Inc., B-242686,
May 20, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 483.
We thus have found
that a bid is properly rejected as nonresponsive for the bidder's failure
to submit a signed Certificate of Procurement Integrity with its bid, even
though the bidder signed its bid and acknowledged the amendment that added
the certification requirement to the solicitation.
Mid-East Contractors,
Inc., B-242435, Mar. 29, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 342.

Since the obligations imposed in the certificate are material, we cannot
consider the protester's failure to sign and submit with its bid its
certificate a minor informality capable of being cured after bid opening.
See Environmental Management Servs., B-244783, Aug. 1, 1991, 91-2 CPD
Para. 114; Ed A. Wilson, Inc., B-244634, July 12, 1991, 91-2 CPD Para.
53.
To do so would permit a bidder to decide after bid opening whether to
comply with a material term of an IFB, which strains the integrity of the
competitive bidding system by giving otherwise successful bidders an
opportunity to walk away from a low bid.
General Kinetics Inc., Cryptek
Division, B-244148, Aug. 19, 1991, 91-2 CPD 166.

The protest is dismissed.