B-246182, Feb 21, 1992, 71 Comp.Gen. 268

B-246182, Feb 21, 1992, 71 Comp.Gen. 268

PROCUREMENT - Sealed Bidding - Bids - Responsiveness - Certification - Signatures Bidder's failure to enter company name in second paragraph of Certificate of Procurement Integrity form does not render its bid nonresponsive where the certifier's typed name and signature were properly inserted on the certificate; the certification is clearly applicable to the bidder since the completed certificate was submitted with the bid which was signed by the company president, the same individual who signed the certificate.

Attorneys

Firebird Construction Corp.:

Firebird Construction Corp. protests the rejection of its bid as nonresponsive under invitation for bids (IFB) No. GATE-185A, issued by the National Park Service, Department of the Interior, for the rehabilitation of roads and parking areas at Gateway National Recreation Area, New York. Firebird's low bid was rejected as nonresponsive for failure to properly execute the Certificate of Procurement Integrity, and award was made to I.P.I. Industries, Inc., the next low bidder.

We sustain the protest.

BACKGROUND

The IFB was issued on August 7, 1991. Because the contract award was expected to exceed $100,000, the agency included the Certificate of Procurement Integrity in the IFB as required by Federal Acquisition Regulation (FAR) Sec. 3.104-10(a). The Certificate of Procurement Integrity requirement, set forth at FAR Sec. 52.203-8, implements the Office of Federal Procurement Policy (OFPP) Act, 41 U.S.C.A. Sec. 423 (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. Shifa Servs., Inc., 70 Comp.Gen. 502 (1991), 91-1 CPD Para. 483. 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. Id.

The certification requirements obligate a named individual-- the officer or employee of the contractor responsible for the bid or offer- 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 the disclosure. Mid-East Contractors, Inc., 70 Comp.Gen. 383 (1991), 91-1 CPD Para. 342. Additionally, the signer of the certificate is required to collect similar certifications from all other individuals involved in the preparation of bids or offers; as a result of the substantial legal obligations imposed on a contractor by the certificate, we have held that the Certificate of Procurement Integrity constitutes a material term of the solicitation, and compliance with the certification requirements is therefore a matter of responsiveness. Id.

In this case, the agency used the certification clause provided at FAR Sec. 52.203-8 as the IFB's Certificate of Procurement Integrity. Accordingly, bidders were required to complete and submit the following form:

"CERTIFICATE OF PROCUREMENT INTEGRITY

"(1) I, *** (name of certifier), am the officer or employee responsible for the preparation of this offer ... hereby certify that ... I have no information concerning a violation or possible violation of... the [OFPP! Act ... occurring during the conduct of this procurement IFB GATE-185A (solicitation number).

"(2) ... I further certify that, to the best of my knowledge and belief, each officer, employee, agent, representative, and consultant of (Name of Offeror) ... is familiar with, and will comply with, the requirements ... of the Act. ...

"(3) Violations or possible violations: ... ENTER "NONE" IF NONE EXIST

"Signature of the officer or employee responsible for the offer and date

Typed name of the officer or employee responsible for the offer."

Firebird's bid was signed by William Skolnik in his capacity as the company president, and Skolnik also signed as the certifier on the certificate. Firebird entered Skolnik's name in the "name of certifier" blank at paragraph 1 and entered "NONE" at paragraph 3 to indicate that the certifier was unaware of any violation or possible violation of the OFPP Act. Skolnik signed and dated the certificate on the appropriate lines beneath paragraph 4 of the form. Because Firebird neglected to fill in the "Name of Offeror" blank at paragraph 2, the agency found Firebird's bid nonresponsive.

DISCUSSION

The question here is whether Firebird certified in writing regarding violations or possible violations of the OFPP Act and its continued compliance with the Act as required by 41 U.S.C.A. 423 and FAR Sec. 52.203 -8. We find that even though the bidder's name was not recorded in paragraph 2 of the clause, Firebird's bid contained the required certification.

The bidder's president certified that the firm's employees, agents, and representatives are familiar with and will comply with the OFPP Act. The certifier neglected only to insert the name of the offeror/employer. However, since the certification is signed by the same individual who signed the bid for Firebird, and the certification was submitted with
Firebird's bid, this is sufficient to identify Firebird as the offeror on
this certification.
Indeed, the only reasonable interpretation of the
documents is that the president of the company was certifying that
Firebird and its employees would comply with the requirements of the OFPP
Act.
We thus conclude that Firebird's failure to insert its company name
on its signed certificate does not render its bid nonresponsive and this
omission is properly waivable as a minor informality.
See Woodington
Corp., B-244579.2, Oct. 29, 1991, 91-2 CPD Para. 393; C.B.C. Enter., Inc.,
B-246235, Oct. 31, 1991, 91-2 CPD Para. 416.

Suspension of contract performance was not required in this case under
the Competition in Contracting Act because the protest was filed in our
Office more than 10 days after the award was made.
Since the contract has
been substantially performed, termination is not a feasible remedy.
However, because the agency's improper actions deprived the protester of a
fair opportunity to compete for the award, Firebird is entitled to recover
its bid preparation costs.
4 C.F.R. Sec. 21.6(d)(2) (1991).
Firebird is
also entitled to the costs of filing and pursuing its protest.
4 C.F.R.
Sec. 21.6(d).

The protest is sustained.

Comptroller General of the United States.

AMENDMENT OF SIN 271-109

Komatsu argues that GSA has improperly amended one of the SINs in the
solicitation that describes the type of equipment that may be offered.
The solicitation, which calls generally for Federal Supply Classification
(FSC) Group 38 commodities, includes FSC 3825, "Road Clearing and Cleaning
Equipment," and solicits offers for five SINs falling under FSC 3825.
One
of those five, SIN 271-109, "Other Road Clearing and Cleaning Equipment,"
is the subject of Komatsu's argument.
According to Komatsu, GSA has
improperly added nine heavy construction items to the list of commodities
acceptable under SIN 271 109, because each of the items is already
properly classified under another FSC code.
Komatsu maintains that
acquiring the same goods or services under more than one FSC code violates
the FPMR provisions relating to the cataloging of federal supply items,
which require items to be described under one four-digit FSC class.
See
FPMR, 41 C.F.R. Sec. 101-30.201(b)(1) and (b)(2); Federal Catalog System
Policy Manual, GSA-FSS-4130.2-M, Sec. 331.04(a).
Komatsu concludes that
the nine additional heavy construction items should be removed from the
RFP.

According to GSA, these items have long been contracted for under SIN 271
-109, and have been described using generic names such as "backhoes" in
order to apprise offerors that multiple-application equipment that is
suitable for use in street cleaning and clearing will be considered by the
agency for inclusion under SIN 271-109.
GSA notes that many equipment
manufacturers produce a base machine bearing a generic name that can be
modified using various attachments, some of which will render the machine
suitable for the applications contemplated under FSC 3825 and SIN 271-
109.
For example, GSA states that one of the current contractors under
this SIN supplies an item described as a "multiple tool carrier/wheeled
articulated loader."
This basic machine has 16 possible attachments, some
of which allow the machine to perform street cleaning and clearing
functions.
According to GSA, it has attempted to list some of the
possible types of machines which, when properly equipped, will be
acceptable under SIN 271-109.
GSA notes that the commerciality and
versatility of these machines will result in cost savings to the user
agencies, which can simply buy additional attachments when new needs
arise.
The determination of the appropriate FSC for an item is within the
discretion of the procuring activity, utilizing the available guidance
provided by the FPMR and the various cataloging policy manuals, Hung Myung
(USA) Ltd., Inc; Containertechnik Hamburg GmbH & Co., 71 Comp.Gen. 64
(1991), 91-2 CPD Para. 434; we will not disturb an agency's determination
in this regard unless it lacks a reasonable basis.
Id. Although in some
circumstances there may be no question as to the appropriate
classification for a particular item, some items may appropriately be
classified under more than one FSC category and we will not overturn such
classifications simply because a category other than the one selected
might also have been chosen.
Cincinnati Milacron Mktg.
Co., B-237619,
Feb. 27, 1990, 90-1 CPD Para. 241.
We find that GSA's inclusion of the
nine items under FSC 3825 was reasonable.
We are persuaded by GSA's
explanation regarding the multiple-use nature of these items.
The record
shows that many of these items, while bearing generic names such as "front
-end loaders," in fact are suitable for performing a wide variety of
operations, some of which are clearly encompassed by the equipment
described in FSC 3825.
For example, machines that may be generically
described as articulated front-end loaders are suited for the performance
of snow removal or street sweeping and cleaning when the appropriate
attachments are utilized.
While we recognize that this equipment properly
can be classified under another FSC category, we think it also reasonably
can be included under the category here.
This being the case, we have no
basis to conclude that GSA's classification of the items was improper.
Cincinnati Milacron Mktg.
Co., supra.

MISCELLANEOUS

Komatsu alleges for the first time in its comments on the agency report
that the description of acceptable items under SIN 271-109 is ambiguous
because it is indefinite.
Komatsu asserts that this alleged ambiguity
became apparent only when it received the agency's report and understood
the agency's position regarding the description of acceptable items under
SIN 271-109.
This argument is untimely.
GSA's interpretation of
acceptable items under SIN 271-109 as including what Komatsu describes as
heavy construction equipment was evident from the solicitation's
description of acceptable items under that SIN and was made still more
explicit in the July 3 presolicitation notice.
Consequently, if Komatsu
considered the specification indefinite, it should have raised the matter
in its initial protest.
4 C.F.R. Sec. 21.2(a)(1), as amended by 56
Fed.Reg. 3759 (1991).

RECOMMENDATION

By letter of today to the Administrator of General Services, we are
recommending that the solicitation be amended to eliminate the requote
arrangements clause.
We also find Komatsu to be entitled to those costs
of filing and pursuing its bid protest, including attorneys' fees, related
to its protest on the requote arrangements clause.
4 C.F.R. Sec.
21.6(d)(1); Interface Flooring, 66 Comp.Gen. 597 (1987), 87-2 CPD Para.
106.

The protest is sustained in part and denied in part.

/1/ The OFPP ACT's provisions requiring this certification became effective, for the second time, on December 1, 1990.

/2/ The solicitation number had been completed by the agency in all of the certifications.