B-246012, Feb 12, 1992

B-246012, Feb 12, 1992

DIGEST: Where bidder's representative failed to sign solicitation's Certificate of Procurement Integrity on designated signature line, he failed to unequivocally commit his company to the certificate's terms] thus, the agency properly rejected his company's bid as nonresponsive.

Attorneys

Koehler GmbH:

Koehler GmbH protests the rejection of its bid under invitation for bids (IFB) No. DAJA76-91-B-0060, issued by the U.S. Army for interior and exterior repair of Building No. 1365 at Fliegerhorst Kaserne in Hanau, Germany. The Army rejected Koehler's bid as nonresponsive because Koehler's representative failed to execute properly its Certificate of Procurement Integrity. Koehler contends that its bid was responsive because its representative otherwise manifested an intent to be bound by the certificate's terms.

We deny the protest.

The IFB contained the Certificate of Procurement Integrity clause set forth at Federal Acquisition Regulation (FAR) Sec. 52.203-8 (FAC 90 5). It advised bidders that a failure to submit the signed certificate would render a bid nonresponsive.

Twelve bidders responded to the IFB. The agency permitted the apparent low bidder, Ehlers-Noll GmbH, to withdraw its bid because of mistake and rejected Koehler's bid, which was second low, based on the bidder's failure to submit a properly signed Certificate of Procurement Integrity with its bid. The agency also rejected the bid of the third low bidder, EMS GmbH, on unrelated grounds. It awarded a contract to the fourth low bidder, Abersfelder GmbH & Co.

Koehler furnished the following information with its Certificate of Procurement Integrity: (1) name of the officer responsible for preparing the bid; (2) identification of the procurement; (3) identification of the bidder; (4) identification of any violation or possible violations of the Act; and (5) the printed name of the officer responsible for the bid, his title, and the date. Koehler's managing director, Heinz Koehler, who was responsible for preparation of the bid, did not sign the certificate, but only initialed the bottom right hand margin of the page on which the signature line appeared. He also initialed several other pages requiring information to be furnished with the bid.

The agency contends that it was unclear from the initials in the margin whether Mr. Koehler intended to be bound by the certificate's terms since a proper signature did not appear on the signature line] thus, the agency maintains, it was required to reject the bid as ambiguous. Koehler disputes this position, arguing that Mr. Koehler's initials in the margin clearly reflected his and his company's intent to be bound.

The certification requirement, which imposes substantial legal obligations on the contractor, is a material solicitation term and, thus, a matter of responsiveness. Mid-East Contractors, Inc., 70 Comp.Gen. 383 (1991), 91-1 CPD Para. 342. Where, as here, a bid's responsiveness is challenged, we review the bid to determine whether the bid represents an unequivocal commitment to perform without exception the requirements stated in the IFB so that the bidder will be bound to perform in accordance with all the material terms and conditions. Contech Constr. Co., B-241185, Oct. 1, 1990, 90-2 CPD Para. 264. As a result of the substantial legal obligations imposed by the certificate, and given the express requirement for the certificate to be separately signed, the omission from a bid of a signed and completed Certificate of Procurement Integrity leaves unresolved a bidder's legal commitment to comply with the certification requirements. Consolidated Metal Prods., Inc., B-244543, July 15, 1991, 91-2 CPD Para. 58.

Here, in our view, by failing to enter his signature on the line expressly provided for that purpose, Mr. Koehler failed to unequivocally commit himself and his company to the certificate's requirements. We have found the signature of a bidder's representative in the margin of the page containing the certificate to be sufficient, where the certificate failed to include a signature line, and bidders had no choice but to improvise. David Morales, B-243791.3, Aug. 27, 1991, 91-2 CPD Para. 202. In our opinion the holding in Morales goes no further-- where a certificate signature line is included, the contracting agency may reasonably conclude that by failing to sign in the designated location, the bidder's representative has failed to manifest an unequivocal intent to be bound by the certificate's terms. We find that Mr. Koehler's failure to sign the Certificate of Procurement Integrity on the designated line rendered his company's bid nonresponsive.

The protest is denied.