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.