B-242686, May 20, 1991, 70 Comp.Gen. 502

B-242686, May 20, 1991, 70 Comp.Gen. 502

PROCUREMENT - Sealed Bidding - Invitations for bids - Defects - Signature lines - Omission Protest is sustained where solicitation's Certificate of Procurement Integrity failed to provide a signature line, which reasonably misled bidders to believe a separate signature on the certificate was not required.

Attorneys

Shifa Services, Inc.:

Shifa Services, Inc. protests the rejection of its bid as nonresponsive for failure to submit a signed Certificate of Procurement Integrity as required by invitation for bids (IFB) No. 91-A-5, issued by the Railroad Retirement Board for janitorial services. Shifa claims that since the solicitation's Certificate of Procurement Integrity failed to provide a space for the certifier's signature, and the certificate was incorporated into the solicitation and Shifa's bid, the firm's authorized signature on its bid adequately demonstrates the intent to be bound by, and thus satisfies, the requirement for a "signed certificate".

We sustain the protest.

The IFB, issued December 3, 1990, incorporated the Certificate of Procurement Integrity clause, Federal Acquisition Regulation (FAR) Sec. 52.203-8, as required by FAR Sec. 3.104-10. This clause implements 41 U.S.C.A. Sec. 423(e)(1) (West Supp. 1990), a statute that bars agencies from awarding contracts unless a bidder or offeror certifies in writing that neither it nor its employees has any information concerning violations or possible violations of the Office of Federal Procurement Policy (OFPP) Act provisions set forth elsewhere in 41 U.S.C.A. Sec. 423. The OFPP Act's provisions requiring this certification became effective, for the second time, on December 1, 1990. /1/ 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 and list, on the blank lines provided, all existing violations or possible violations of the OFPP Act (or enter "none" if none exists). The Certificate of Procurement Integrity form that was included in the IFB, which is essentially a photocopy of the certification clause provided at FAR Sec. 52.203-8, did not contain a signature line or signature block for the offeror to complete. The form provided, in pertinent part, as follows:

"K18. REQUIREMENT FOR CERTIFICATE OF PROCUREMENT INTEGRITY (SEP 1990)

(b) Certifications. As required in paragraph(c) of this provision, the officer or employee responsible for this offer shall execute the following certification:

CERTIFICATE OF PROCUREMENT INTEGRITY

(1) I, Name of certifier, am the officer or employee responsible for the preparation of this offer and hereby certify that, to the best of my knowledge and belief, with the exception of any information described in this certificate, I have no information concerning a violation or possible violation of ... the Office of Federal Procurement Policy Act, as amended (41 U.S.C. Sec. 423), ...

(2) ... I further certify that, to the best of my knowledge and belief, each officer, employee, agent, representative, and consultant of Name of Offeror who has participated personally and substantially in the preparation or submission of this offer has certified that he or she is familiar with, and will comply with, the requirements of ... the Act ... pertaining to this procurement.

(3) Violations or possible violations:

(Continue on plain bond paper if necessary and label Certificate of Procurement Integrity (Continuation Sheet), ENTER NONE IF NONE EXIST) (4) I agree that, if awarded a contract under this solicitation, the certifications required by subsection 27(e)(1)(B) of the Act shall be maintained in accordance with paragraph(f) of this provision.

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

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

Nine bids were received by the January 10, 1991 closing date. Four bidders submitted signed Certificates of Procurement Integrity with their bids. Shifa and three other bidders inserted "none" under section 3, but did not sign the certificate itself; one other firm left the certification completely blank. These five bids, including Shifa's, were rejected as nonresponsive for failure to include a signed Certificate of Procurement Integrity. The four responsive bidders altered the IFB's certificate, either by retyping the full certificate or by erasing the bracketed print, to create a signature line for the certifier's signature. On January 16, Shifa filed a protest with our Office challenging the rejection of its bid. No award has been made.

FAR Sec. 3.104-9(b)(3) 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) provides that "a bid shall be rendered nonresponsive and rejected if the bidder fails to submit the signed certificate ... with its bid." Accordingly, a separate signed certificate is required to be submitted by each bidder by bid opening and this requirement affects the bid's responsiveness.

In a recent decision, Mid-East Contractors, Inc., B-242435, Mar. 29, 1991, 91-1 CPD Para. ***, we found that a bid was properly rejected as nonresponsive for the bidder's failure to submit a signed and completed 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.
In that decision, we recognized that
since the certification provision, which implements several requirements
of the OFPP Act, imposes additional and substantial legal obligations on
the contractor, omission from a signed bid of a separately signed,
completed Certificate of Procurement Integrity is a material deficiency.
We upheld the contracting agency's nonresponsiveness determination in that
case because the incomplete certificate called into question the bidder's
commitment to the certificate's stated requirements.

In this case, however, the record shows that the majority of bidders were
evidently misled by the certificate's omission of a signature line.
find this resulted from a latent solicitation defect.
While the clause
contained a parenthetical request for the "signature of the officer or
employee responsible" for the certification, there was no indication where
the signature should be placed.
There was no signature line or space
provided in the clause to reasonably indicate a signature in addition to
the one on the face of the bid was required.
Four of nine bidders
submitted signed certificates by altering the form contained in the IFB,
four other firms, including Shifa, signed the bid after completing the
provision in the certificate which solicited a response concerning any
procurement integrity violations.
We find it unreasonable to hold bidders
responsible for creatively altering a solicitation provision, as here to
include their own signature line, in order to be found responsive.
In our
view, due to the omission of the signature line, Shifa and the other
bidders that filled out their bids in the same manner reasonably were
misled regarding the certification's signature requirement.

This solicitation was ambiguous as to the precise manner by which bidders
were to certify compliance with requirements concerning procurement
integrity.
In these circumstances, we think that it would be in the best
interest of the government to cancel the IFB and resolicit the requirement
to include a distinct signature line on the required Certificate of
Procurement Integrity, making it clear to bidders that a separate
signature is required on the certificate itself.
See American Cyanamid
Co., B-232200.2, June 23, 1989, 89-1 CPD Para. 593.
We also find that
Shifa is entitled to the costs of filing and pursuing the protest.
Bid
Protest Regulations, 4 C.F.R. Sec. 21.6(d)(1) (1991).
By letter of today,
we are advising the Chairman of the Railroad Retirement Board of our
decision.

The protest is sustained.

The Honorable Glen L. Bower

Chairman

Railroad Retirement Board:

Enclosed is a copy of our dicision of today sustaining the bid protest of
Shifa Services, Inc., filed in connection with invitation for bids (IFB)
No. 91-A-5, issued by the Railroad Retirement Board.
We sustain the
protest based upon our finding that the IFB failed to provide a distinct
signature line or space on its Certificate of Procurement Integrity,
reasonably misleading the protester, and perhaps several other bidders, to
complete the lines provided in the certificate regarding possible
violations and to sign its bid, instead of signing the certificate
itself.

We therefore recommend that the agency cancel the IFB and resolicit the
requirement to include a distinct signature line on the required
Certificate of Procurement Integrity, making it clear to bidders that a
separate signature is required on the certificate itself.
We also find
that Shifa is entitled to recover the cost of filing and pursuing its bid
protest.
See 31 U.S.C. Sec. 3554(c) (1988); 4 C.F.R. Sec. 21.6(d)(1)
(1991).

Since the enclosed decision contains a recommendation for corrective
action, we direct your attention to 31 U.S.C. Sec. 3554(e)(1) (1988),
which requires that the head of the procuring activity responsible for the
solicitation report to our Office if the agency has not fully implemented
our recommendations within 60 days of our decision.
Please advise us in
any case of the action taken on the recommendation.

The Honorable Allan V. Burman

Administrator

Office of Federal Procurement Policy

Enclosed is a copy of our decision of today sustaining the bid protest of
Shifa Services, Inc., filed in connection with invitation for bids (IFB)
No. 91-A-5, issued by the Railroad Retirement Board.
We sustain the
protest based upon our finding that the IFB failed to provide a distinct
signature line or space for a signature on its Certificate of Procurement
Integrity, which is essentially a photocopy of the certificate clause at
Federal Acquisition Regulation (FAR) Sec. 52.203-8.
We find that this
omission reasonably misled the protester, and perhaps several other
bidders, to complete the lines provided in the certificate regarding
possible violations and to sign its bid, instead of signing the
certificate itself.

The use by contracting agencies of a copy of the certificate clause
without providing lines or space for a signature is the subject of several
protests currently filed with our Office.
We also have received protests
by bidders excluded for making other sorts of errors in completing the
certificate.
While hopefully problems with the new certificate may
diminish as contractors gain more familiarity with it, the government is
paying a premium for goods and services as low bidders are rejected for
inadvertent failures to fill out the form properly.
In at least one of
the protests currently filed with our Office, the government is paying a
$1 million premium for an award to a bidder that submitted a signed
certificate where the low bidder apparently inadvertently failed to do so.
Similar problems occurred with the requirement for a separate signature
for affirmative action certifications, see, e.g., 53 Comp.Gen. 431 (1973)
and Pacific West Constructors, B-181608, Nov. 22, 1974, 74-2 CPD Para.
282, and ultimately, the requirement for the submission of a separate
signed affirmative action certification prior to bid opening was relaxed
by regulation.

In light of the financial benefits being lost by rejecting low bidders
that fail to submit a properly signed certificate, we recommend that the
FAR Council consider revising the FAR to provide clearly and explicitly
that by the submission of its signed bid, the bidder certifies that it
will comply with the terms of the Certificate of Procurement Integrity
that is incorporated into the IFB-- thus eliminating the need for a
separate signature on the certificate.

/1/ After extending the original effective date of these provisions to July 16, 1989, see Woodington Corp., B-235957, Oct. 11, 1989, 89-2 CPD Para. 339; recon. dismissed, B-235957.2, Nov. 15, 1989, 89-2 CPD Para. 461, Congress suspended them, including the certification requirements at issue here, for 12 months beginning December 1, 1989. See section 507 of the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 1759 (1989).