BNUMBER:  B-259686.3
DATE:  November 16, 1995
TITLE:  Dick Enterprises, Inc.--Protest and Reconsideration

**********************************************************************

Matter of:Dick Enterprises, Inc.--Protest and Reconsideration

File:     B-259686.3

Date:   November 16, 1995

Martin Healy, Esq., Thompson & Waldron, for the protester.
Julia L. Perry, Esq., Department of Transportation, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where General Accounting Office (GAO) recommended in prior decision 
that awardee provide information to resolve ambiguity relating to the 
identity of the offering concern, and information provided resolves 
ambiguity, GAO finds that original award decision was proper.

DECISION

Dick Enterprises, Inc. protests the actions of the Department of 
Transportation (DOT) in failing to terminate for the convenience of 
the government a contract awarded to The Walsh Group, Ltd. d/b/a 
Archer-Western Contractors, Ltd. under request for proposals (RFP) No. 
DTFH71-94-R-00006, issued by the Department of Transportation, Federal 
Highway Administration (DOT) for the construction of a tunnel and 
portal buildings at Cumberland Gap National Historic Park.  Dick also 
requests reconsideration of our decision in Dick Enters., Inc., 
B-259686.2, June 21, 1995, 95-1 CPD  286, in which we sustained an 
earlier protest by Dick against the contract award to Walsh.

We deny the protest and the request for reconsideration.

In our first decision, we found that Walsh's proposal, submitted in 
the name of The Walsh Group, Ltd. d/b/a Archer-Western Contractors, 
Ltd., was unclear regarding which of numerous corporate entities 
identified in the proposal was the actual offeror, and because there 
was no information to show that the individual signing the offer had 
authority to execute contracts on behalf of the companies named.   We 
specifically noted that d/b/a is generally employed where the same 
legal entity is merely using another name as its trade name.  We 
found, however, that Walsh and Archer-Western were distinct 
corporations, that they were not necessarily liable for each other's 
obligations, and that there was no information to show, for example, 
that Walsh was the actual offeror and was merely using Archer-Western 
as its trade name.  We also found no evidence to show that there 
existed a distinct legal entity known as The Walsh Group d/b/a 
Archer-Western Contractors.  Finally, we found that, because of these 
infirmities, there was doubt regarding the enforceability of the bid 
bond submitted with Walsh's bid.

We therefore sustained the protest and recommended that DOT 
expeditiously obtain information to establish the identity of the 
offering entity and the authority of the individual signing the offer 
to bind the firm; we further recommended that, if the information 
provided was inadequate, DOT terminate the contract awarded to Walsh 
for the convenience of the government, and make award to Dick if 
otherwise proper.  

In response to our recommendation, the agency has obtained various 
documents from Walsh.  This information includes copies of the 
articles of incorporation for The Walsh Group, Ltd. and Archer-Western 
Contractors, Ltd., as well as the minutes from the two companies' 
boards of directors' annual meetings and authenticated copies of 
various motions of the boards dated January 10, 1994.  This 
information shows, among other things, that (as represented in the 
original protest record) Archer-Western is a subsidiary of The Walsh 
Group, and that The Walsh Group assumed all liabilities of 
Archer-Western prior to the original deadline for submission of 
offers.

As an initial matter, Dick argues in its reconsideration request that 
our original decision was erroneous in that it permitted Walsh to 
furnish information after award regarding the identity of the offeror 
and authority of the individual signing the offer to bind the concern.  
Since our decision was based on the fact that the record contained 
insufficient information concerning which of several named entities 
was the offeror, the appropriate remedy--notwithstanding that award 
had been made--was to determine whether there was information that the 
agency could have obtained that would sufficiently clarify the 
relationships between the various entities.  This recommendation was 
consistent with previous decisions of our Office which, because of 
circumstances, necessarily rely on evidence furnished after award to 
determine whether the award was proper--for example, where the issue 
was whether an individual in fact had authority to bind a concern at 
the time of bid opening.  Hutchinson Contracting, B-251974, May 18, 
1993, 93-1 CPD  391; Schmidt Eng'g & Equip., Inc.; Defense Logistics 
Agency--Recon., 72 Comp. Gen. 262 (1993), 93-1 CPD  470.  We 
therefore have no basis to disregard the post-award evidence furnished 
here, and the reconsideration is denied. 

In its protest, Dick contends that the information furnished is still 
inadequate to establish the identity of the offeror.  Dick maintains 
that the two concerns named in the Walsh offer, The Walsh Group, Ltd. 
and Archer-Western Contractors, Ltd., are discrete corporate entities 
and that DOT cannot be sure which of the two concerns is in fact 
liable to perform the contract.  Dick also contends that the fact that 
Archer-Western is a subsidiary of The Walsh Group is immaterial since 
the limitation of liability arising as a consequence of these two 
firms being separate corporations is what creates doubt concerning 
which firm bears contractual liability here. 
  
The central concern in every case where there is doubt regarding which 
firm is the actual offeror is the risk that there will be no party 
that is bound to perform the obligations of the contract.  Sunrise 
Int'l Group, Inc.; Eagle III Knoxville, Inc.,       B-252735; 
B-252735.2, July 27, 1993, 93-2 CPD  58.  Within the context of this 
case, there was no evidence to show whether Walsh, Archer-Western, or 
both, were bound to perform the obligations of the contract.  The 
evidence now before us demonstrates that The Walsh Group bears 
ultimate liability for performance of this contract.  Among the 
materials submitted by the agency is a resolution of the board of 
directors of The Walsh Group dated January 10, 1994, approximately 2 
weeks prior to submission of the offerors' technical proposals.  This 
resolution, entitled Parent Company Obligations, provides

     "Be it resolved that The Walsh Group, Ltd. the parent company of 
     Archer-Western Contractors, Ltd., a wholly owned subsidiary of 
     The Walsh Group, Ltd., accepts and assumes all contractual and 
     other liabilities and obligations on behalf of Archer-Western 
     Contractors, Ltd., regardless of how such obligations may arise."

In our view, this resolution provides the necessary legal connection 
between The Walsh Group and Archer-Western Contractors; The Walsh 
Group has agreed by the terms of the resolution to be liable for the 
contractual obligations of Archer-Western, and this agreement removes 
any limitation of liability arising as a consequence of the two 
concerns being separate corporations.  Given that this resolution was 
executed before the submission of offers, we think the record now 
shows that, at the time of proposal submission, the two concerns could 
be viewed as essentially synonymous, and that The Walsh Group could 
properly be considered the offeror for purposes of this contract.[1]

The record also now shows conclusively that Matthew Walsh, the 
individual signing the Walsh submissions, had authority to bind both 
The Walsh Group, Ltd. and Archer-Western Contractors, Ltd.  In this 
regard, the agency's submissions to our Office include two additional 
resolutions, one by the board of directors for The Walsh Group, Ltd., 
and one by the board of directors for Archer-Western Contractors, Ltd.  
Both of these resolutions are also dated January 10, 1994, 
approximately 2 weeks prior to the submission of Walsh's proposal.  
These resolutions provide, respectively, that Matthew Walsh, as 
president of each concern, is authorized to execute legal documents on 
behalf of each corporation.

Dick argues that our Office should not accept the agency's submissions 
because the agency presented the information in a piecemeal fashion.  
The agency made three submissions to our Office after the issuance of 
our decision on June 21, 1995; the first agency submission was dated 
July 6, the second August 14, and the third November 2.  The Parent 
Company Obligations resolution (quoted above) was not furnished until 
November 2.  Dick argues that the agency has taken an unreasonably 
long time to present the information, and maintains that DOT's actions 
were inconsistent with the recommendation in our earlier decision to 
"promptly" obtain the information.

While we agree with the protester that the agency's presentation of 
the evidence was protracted, we nonetheless conclude that 
consideration of it is consistent with our central aim of ultimately 
determining the legal propriety of contract awards.  The protester has 
advanced no legitimate reason for us to disregard the information, and 
we will not recommend that DOT terminate Walsh's contract--as the 
protester urges is the proper remedy here--based solely on its 
piecemeal presentation of relevant information; while the agency's 
presentation introduced some delay in the resolution of this protest, 
the evidence now before us shows that DOT's award decision was 
unobjectionable for the reasons discussed above.

The protest and request for reconsideration are denied.  

Comptroller General
of the United States

1. We also noted in our first decision that Walsh's proposal had 
apparently been submitted in the name of a nonexistent legal entity, 
The Walsh Group, Ltd. d/b/a Archer-Western Contractors, Ltd.  Given 
Walsh's assumption of Archer-Western's contractual liabilities, we 
think it unobjectionable that the firm used this name in identifying 
Walsh as the contractor ultimately liable for performance.