Matter of: Gammon Technical Products, Inc. File: B-257497 Date: June 15, 1994

Matter of: Gammon Technical Products, Inc. File: B-257497 Date: June 15, 1994

DIGEST

Attorneys

DECISION

There is no merit to these arguments. Accordingly, we dismiss the protest.

First, the submission of a signed bid does not satisfy the requirement to submit a signed certification. It is well-settled that an appropriate signature on the certificate itself is required to establish the bidder's intent to be bound to the provisions of the certificate. See Mid-East Contractors, Inc., 70 Comp.Gen. 383 (1991), 91-1 CPD Para. 342; G. Penza & Sons, Inc., B-249321, Sept. 2, 1992, 92-2 CPD Para. 147; Ed A. Wilson, Inc., B-244634, July 12, 1991, 91-2 CPD Para. 53.

Second, it is also well-established that the failure to submit a signed certificate with the bid renders the bid nonresponsive; it cannot be cured after bid opening. Gammon asserts that this is inconsistent with the statutory requirement for the certificate, which provides only that an agency "may not award a contract" unless the bidder "certifies in writing." 41 U.S.C. Sec. 423(e) (Supp. IV 1992). The Federal Acquisition Regulation (FAR), however, requires the certification to be furnished with the bid and explicitly states that a bid not accompanied by the required certification is nonresponsive. FAR Secs. 3.104-9, 14.404-2(m), 52.203-8. The courts have held that this FAR implementation is not precluded by the statute and is a permissible implementation thereof, see S.J. Amoroso Constr. Co., Inc. v. U.S., 981 F.2d. 1073 (9th Cir. 1992); McMaster Constr., Inc. v. U.S., 23 Cl. Ct. 679 (1991), and we have held that the obligations imposed by the certification are material such that the failure of a bid to include a properly signed certificate indeed renders the bid nonresponsive. See, e.g., Mid-East Contractors, Inc., supra.

Gammon cites to several cases that permit evidence of the individual's authority to sign a bid or certificate to be furnished after bid opening and suggests that the "same line of thinking" should lead us to the conclusion that the signature itself may be furnished after bid opening. We allow agencies to consider evidence of a signatory's authority that is furnished after bid opening, see Schmidt Eng'g & Equip., Inc.; Defense Logistics Agency--Recon., B-250480.2; B-250480.3, June 18, 1993, 93-1 CPD Para. 470, because we view the government as being adequately protected against a false disavowal of a signatory's authority or other fraudulent practices. See 49 Comp.Gen. 527, 529-530 (1970). There is no such protection, however, when a bid itself does not reflect the bidder's commitment to all the material solicitation requirements. In other words, the bidder may not be given the opportunity, after bid opening, to explain or remedy the bid defect because the government would have no recourse against the bidder regardless of whether the bidder chooses to cure the defect or allows it to remain; the bidder would have the unfettered choice, after bid opening, of remaining in the competition or abandoning its bid. To allow a bidder such "two bites at the apple" is inconsistent with the principles of competitive bidding. See 49 Comp. Gen. 801 (1966); 38 Comp. Gen. 532 (1959).

The protest is dismissed.

OGC Form 500(Rev 4/94) (form omitted)