BNUMBER: B-271518.2
DATE: June 28, 1996
TITLE: M.R. Dillard Construction
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Matter of:M.R. Dillard Construction
File: B-271518.2
Date:June 28, 1996
James A. Pemberton, Esq., King & King, for the protester.
Robert W. Pessolano, Esq., Department of the Army, for the agency.
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
An unsigned bid is responsive where the individual that signed the
Certificate of Procurement Integrity was authorized to bind the bidder
at the time the bid was submitted.
DECISION
M.R. Dillard Construction protests the cancellation of the award of
contract No. DACA27-96-C-0040 to Dillard by the U.S. Army Corps of
Engineers, Louisville District, under invitation for bids (IFB) No.
DACA27-96-B-0014, for the installation of additional railroad track at
Fort Campbell, Kentucky.[1]
We sustain the protest.
Dillard submitted the low bid by the February 22, 1996, bid opening.
Dillard's bid omitted the back of Standard Form (SF) 1442,
Solicitation, Offer, and Award, included with the IFB, on which the
bidder is to execute its offer and the government make award. The
back of the SF 1442 contains an offer section including, among other
items, spaces for the bidder to enter the name and title of the person
authorized to sign the offer, a space for that person's signature, and
spaces to acknowledge amendments. The offer section also provides a
space for a bidder to enter the dollar amount of its bid, although in
this case bidders were instructed to instead enter their prices on a
bid schedule included on a separate continuation sheet. The back of
the SF 1442 contained other material provisions such as the minimum
bid acceptance period and the bidder's agreement to furnish
performance and payment bonds. Dillard's bid did contain the front
side of the SF 1442.
Dillard's bid indicated that the bidding entity was owned by M.R.
Dillard. The bid included a Certificate of Procurement Integrity
(CPI) in the representations and certifications section, which was
executed by Harry Q. Horner, Dillard's general superintendent with his
original signature. M.R. Dillard's rubber stamp facsimile signature
was used on documents throughout the rest of the bid, including an
additional procurement integrity certification on the continuation
sheet of the bid schedule as well as on the amendments and the
required bid bond.
After bid opening, Dillard submitted the completed back of the SF
1442, which it explained had been signed by Mr. Dillard on the day of
bid opening but was inadvertently omitted during the preparation of
the bid package. Dillard also explained that Mr. Horner had the
authority to contractually bind Dillard as well as to use the owner's
rubber stamp facsimile signature. As a result, the Corps waived as a
minor informality Dillard's failure to have included in its bid the
back of the SF 1442 with its owner's signature, and awarded the
contract to Dillard on March 7.
Following a protest filed with our Office on March 22 by Firth
Construction Co., Inc., the second low bidder, the Corps determined
that Dillard's bid should have been rejected as nonresponsive because
it did not contain an original signature that could bind Dillard to
the terms of the IFB. In this regard, the Corps found nothing
submitted by Dillard prior to bid opening that authorized the use of
the owner's rubber stamp facsimile signature or that authorized
Dillard's superintendent to bind Dillard contractually. The Corps
declared that it had improperly awarded the contract to Dillard and
then took corrective action by canceling the award. We dismissed
Firth's protest as academic on April 23. Dillard protested on April
26. The Corps is withholding award to Firth pending our decision.
As a general rule, an unsigned bid must be rejected as nonresponsive
because without an appropriate signature, the bidder would not be
bound should the government accept the bid. Stafford Grading and
Paving Co., Inc., B-245907, Jan. 14, 1992, 92-1 CPD para. 66. Federal
Acquisition Regulation (FAR) sec. 14.405(c) permits waiver of a bidder's
failure to sign its bid only if--
"(1) The unsigned bid is accompanied by other material
indicating the bidder's intention to be bound by the unsigned bid
(such as the submission of a bid guarantee or a letter signed by
the bidder, with the bid, referring to and clearly identifying
the bid itself); or
"(2) The firm submitting a bid has formally adopted or
authorized, before the date for opening of bids, the execution of
documents by typewritten, printed, or stamped signature and
submits evidence of such authorization and the bid carries such a
signature . . . ."
Dillard concedes that by omitting the back page of the SF 1442, its
bid, as submitted, was unsigned by its owner and was not accompanied
by documentation which showed that the owner's rubber stamp facsimile
signature used elsewhere in the bid was authorized. Nonetheless,
Dillard contends that its omission of the back of the SF 1442 was
properly waived by the Corps as a minor informality and that Dillard
should retain the award because other evidence in its bid,
specifically the original signature of Dillard's superintendent on the
CPI, shows that Dillard intended to be bound by its bid. We agree.
A signed CPI included in a bid package is sufficient to show a
bidder's intention to be bound by its bid, even if the bid is
unsigned. Johnny F. Smith Truck and Dragline Serv., Inc., B-252136,
June 3, 1993, 93-1 CPD para. 427; JRW Enters., Inc., B-238236, May 11,
1990, 90-1 CPD para. 464. We view a bidder's signature included in a bid
package as the prime consideration for determining a bidder's intent
to be bound; the fact that the signature appears in other than the
usual location does not mean the bidder is any less committed to the
provisions of the solicitation. Id. We also note that the individual
executing the CPI must have the authority to bind the bidder to its
bid as well as the certificate because of the significant legal
obligations contained in the certificate, and the penalties imposed
upon the certifying individual for violating the certificate, as well
as the administrative penalties that might be imposed on the
contractor for its employee's violation.[2] See Sweepster Jenkins
Equip. Co., Inc., B-250480, Feb. 8, 1993, 93-1 CPD para. 111, rev'd on
other grounds, Schmidt Eng'g & Equip., Inc.; Defense Logistics
Agency--Recon, 72 Comp. Gen. 262 (1993), 93-1 CPD para. 470.
The Corps contends that the bid indicates that Dillard's owner, not
Dillard's general superintendent, was the person authorized to sign
Dillard's bid and bind the bidder. However, the record shows that
Dillard's superintendent was indeed authorized to sign Dillard's bid
on behalf of the owner at the time of bid opening. The Certification
of Independent Price Determination included in the bid stated that Mr.
Horner was an authorized agent of Dillard. In addition, Dillard, in
response to Firth's earlier protest, supplied the Corps with copies of
letters, signed by the owner during 1986, authorizing Mr. Horner to
legally bind Dillard contractually by Mr. Horner's own signature and
to use the owner's rubber stamp facsimile signature. The protester
also submitted an affidavit from the owner reiterating Mr. Horner's
authority to bind Dillard and authenticating the 1986 letters, which
the owner stated continued in full force and effect. Our Office has
long held that the evidence required to show the authority of an
individual signing a bid may be presented after bid opening. 49 Comp.
Gen. 527 (1970); Schmidt Eng'g & Equip., Inc.; Defense Logistics
Agency--Recon, supra; Hutchinson Contracting, B-251974, May 18, 1993,
93-1 CPD para. 391. Accordingly, the original signature of Dillard's
superintendent on the completed CPI in Dillard's bid sufficiently
demonstrates Dillard's intent to be bound by its bid and permits its
acceptance.[3]
The Corps nevertheless argues that Dillard's bid is nonresponsive
because documentation showing authority to use the owner's rubber
stamp facsimile signature was not provided by Dillard prior to bid
opening as required, see Stafford Grading and Paving Co., Inc., supra,
and the stamp, rather than any original signature by an authorized
official, was used in connection with material provisions of the IFB,
such as the additional procurement integrity certification included on
the continuation sheet, the amendments, and the bid bond. However, as
discussed further below, since Dillard was bound to its bid by virtue
of Mr. Horner's execution of the CPI, Dillard's failure to include
original signatures on other portions of the IFB was not material.
Specifically, the procurement integrity certification on the
continuation sheet to the bid schedule, which was acknowledged by the
rubber stamp signature of Mr. Dillard, imposed no legal requirements
beyond those stated in the full text of the CPI in the IFB's
representations and certifications section.[4] By entering his
original signature on the CPI in the representations and
certifications section, Mr. Horner certified that he was the officer
or employee responsible for the preparation of the bid and that to the
best of his knowledge, each officer, employee, agent, representative,
and consultant of Dillard who had participated personally and
substantially in the preparation or submission of the bid had
certified his or her familiarity and compliance with the requirements
of the relevant OFPP Act provisions. Therefore, the fact that the
additional certification on the continuation sheet was acknowledged by
the Mr. Dillard's rubber stamp facsimile signature does not render the
bid nonresponsive. Further, although Mr. Dillard's name was entered
on the continuation sheet beneath his rubber stamp signature as the
officer or employee responsible for the offer, we think the identify
of the actual certifier was clearly established by the full text of
the CPI, which was personally executed by Mr. Horner and properly
identified Mr. Horner as the "certifier." See Aerospace Design, Inc.,
B-259350, Mar. 23, 1995, 95-1 CPD para. 161.
In addition, notwithstanding that the owner's facsimile signature was
stamped on the first pages of the amendments which Dillard included in
its bid, the superintendent's authorized original signature elsewhere
in the bid ensures that acceptance of the bid will, as a legal matter,
obligate Dillard to perform in accordance with the terms of the
solicitation, including the amendments, at the bid price. See First
Fed. Data Servs., B-216487, Dec. 21, 1984, 84-2 CPD para. 685. Likewise,
regarding Dillard's use of the owner's rubber stamp signature on its
bid bond, we do not regard the signature on the bid bond as a material
requirement with which the bidder must comply in order to be
responsive where, as here, the bond is submitted with a bid which
contains a signature sufficient to bind the bidder. See Noslot Pest
Control, Inc., 68 Comp. Gen. 396 (1989), 89-1 CPD para. 396; The Ryan Co.,
B-245659, Oct. 23, 1991, 91-2 CPD para. 365.
Finally, the fact that Dillard's bid did not include the back page of
the 1442 did not render it nonresponsive, inasmuch as Dillard bound
itself to the provisions (e.g., the minimum bid acceptance period and
the requirements to furnish performance and payment bonds) contained
thereon by acknowledging receipt of an amended version of the SF 1442,
containing the same material provisions as the omitted SF 1442. See
Weber Constr., B-233848, Mar. 27, 1989, 89-1 CPD para. 309.
As Dillard's bid was responsive and should have properly been accepted
by the Corps for award, we recommend that the Corps reinstate the
award of the contract to Dillard. In addition, we recommend that
Dillard be reimbursed the costs of filing and pursuing the protest,
including reasonable attorneys' fees. 4 C.F.R. sec. 21.8(d)(1).
Dillard's certified claim for such costs, detailing the time expended
and costs incurred, should be submitted directly to the agency within
90 days after receipt of this decision. 4 C.F.R. sec. 21.8(f)(1).
The protest is sustained.
Comptroller General
of the United States
1. This decision is made under our express option procedures, 4 C.F.R. sec.
21.10 (1996).
2. Since the contract was expected to exceed $100,000, the IFB
contained the CPI clause set forth at FAR sec. 52.203-8. The clause
serves to implement the Office of Federal Procurement Policy (OFPP)
Act, 41 U.S.C. sec. 423(e) (1994), which precludes federal agencies from
making award to a competing contractor unless the officer or employee
of the contractor responsible for submitting the offer or bid
certifies in writing that neither he nor those employees who
participated in preparing the bid have any information concerning
violations or possible violations of the OFPP Act. C.B.C. Enters.,
Inc., 72 Comp. Gen. 275 (1993), 93-1 CPD para. 495. 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.
Id.
3. Contrary to the Corps's assertion, Dillard's status as a sole
proprietorship does not preclude it from being bound by an authorized
individual acting on behalf of the owner. See Jordan Contracting Co.;
Griffin Constr. Co., Inc., B-186836, Sept. 16, 1976, 76-2 CPD para. 250.
4. The continuation sheet warned bidders that failure to complete the
additional certification would render the bid nonresponsive. However,
that certification is not the additional procurement integrity
certification contemplated under FAR sec. 3.104-9(d) which may be
requested by the agency, such as the certifications from others who
participated in preparing or submitting the bid which the signer of
the certificate is required to collect. See Sweepster Jenkins Equip.
Co., Inc., supra.