B-236564.4, Aug 6, 1990

B-236564.4, Aug 6, 1990

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration is denied where protester does not show that challenged decision is inconsistent with other decisions issued by General Accounting Office.

Attorneys

Hampton Roads Leasing, Inc.-- Second Request for Reconsideration:

Hampton Roads Leasing, Inc., requests reconsideration of our decisions, Hampton Roads Leasing, Inc., 69 Comp.Gen.80 (1989), 89-2 CPD Para. 537, and Hampton Roads Leasing, Inc.-- Request for Recon-., B-236564.3, Apr. 4, 1990, 90-1 CPD Para. 357, in which we denied its protest against the Department of the Navy's proposed award of a contract under invitation for bids (IFB) No. N62470-89-B-2238 to a bidder that had failed to submit a signed and completed Certificate of Procurement Integrity prior to bid
opening.
Hampton Roads argues that these decisions are inconsistent with
two other recent decisions by our Office, Feb. 23, 1990, 90-1 CPD Para.
216, and Fry Communications, Inc., B-237666, Feb. 23, 1990, 90-1 CPD Para.
215, and should therefore be reversed.

We deny the request for reconsideration.

By way of background, we note that although the solicitations in the
Hampton Roads case and the Atlas and Fry cases incorporated the
Certificate of Procurement Integrity provision, Federal Acquisition
Regulation (FAR) Sec. 52.203-8, /1/ application of the provision had been
suspended prior to the date of award in all three cases.
/2/

In Atlas and Fry, the agency rejected the protester's bid as
nonresponsive because it did not include a completed certificate at the
time of bid opening.
We concluded that the agency had acted reasonably in
interpreting the certification requirement as relating to responsiveness,
and that the subsequent suspension of the procurement integrity
legislation did not retroactively invalidate the decision.

In Hampton Roads, in contrast, the agency viewed the certification
requirement as a matter of responsibility that could be cured at any time
prior to award.
It therefore proposed to award to Anderson Funding Group,
which had failed to submit a certificate prior to bid opening, but had
furnished one shortly thereafter.
We declined to interfere with the
proposed award since the statutory requirement for completion and signing
of the certificate had been suspended prior to the proposed date of
award.

The protester argues that our holdings in the Atlas and Fry cases are
inconsistent with our original Hampton Roads decision.
Atlas and Fry
stand for the proposition that a decision as to the responsiveness of a
bid should be made on the basis of the solicitation's requirements as they
exist at the time of bid opening, while, according to the protester, our
original Hampton Roads decision stands for the proposition that deletion
of a material requirement from a solicitation after bid opening may
transform a nonresponsive bid into a responsive bid.

We think that the protester has mischaracterized the original Hampton
Roads decision.
In that decision, we declined to interfere with the
proposed award to Anderson since the statutory requirement for completion
and signing of the certificate had been suspended prior to the proposed
date of award.
Our rationale for allowing the agency to proceed with
award was not that Anderson's nonresponsive bid had become responsive
after suspension of the procurement integrity legislation.
Rather, as we
explained in response to the protester's initial request for
reconsideration, Anderson's bid remained nonresponsive.
It could be
accepted nevertheless because the awarded contract would serve the
government's actual needs and no other bidder would be prejudiced by
acceptance of the bid.
The protester had not argued and there was no
evidence that an award to Anderson would not serve the government's
needs.
The protester had not been prejudiced by its completion of the
certificate, since, despite the fact that it had assumed legal obligations
not assumed by other bidders, it would not be required to comply with
these obligations if awarded the contract since the certification would be
deleted from any resultant contract.

The protester takes issue with our finding that it was not prejudiced by
acceptance of Anderson's bid, arguing that it was prejudiced in that it
was denied an award to which it otherwise would have been entitled.
When
we speak of prejudice in the bid protest context, we mean action taken by
the agency which places a bidder or offeror at a competitive disadvantage,
and not simply any decision by the agency which is unfavorable to the
competitor's interests.
In our view then, Hampton Roads was not
prejudiced by the mere fact that another competitor was selected for
award.

The request for reconsideration is denied.

/1/ FAR Sec. 52.203-8, which implements 41 U.S.C. Sec. 423(d)(1) (West Supp. 1989), requires that the officer or employee responsible for an offer certify that, with the exception of any information described in the certificate, he has no information concerning a violation or possible violation of subsections (a), (b), (c), or (e) of 41 U.S.C. Sec. 423, and that each representative of his firm substantially involved in the preparation of the offer has certified that he is familiar with and will comply with the requirements of 41 U.S.C. Sec. 423(a) and will report to him immediately any information concerning a violation or possible violation of the section pertaining to the procurement.

/2/ Pursuant to Sec. 507 of the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 1759 (1989), 41 U.S.C. Sec. 423 and the implementing regulations, including FAR Sec. 52.203-8, were suspended for a 1-year period beginning on Dec. 1, 1989.