BNUMBER: B-271662
DATE: August 2, 1996
TITLE: Trandes Corporation
**********************************************************************
Matter of:Trandes Corporation
File: B-271662
Date:August 2, 1996
Daniel A. Perkowski, Esq., for the protester.
David W. Burgett, Esq., Hogan & Hartson, for ManTech Advanced Systems
International, Inc., the intervenor.
Elizabeth Rivera Bagwell, Esq., and Otto A. Thompson, Jr., Esq.,
Department of the Navy, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
A succession of interest in, or a transfer of, a proposal has not
occurred where an initial proposal is prepared and submitted by one
unincorporated operating unit of the offeror corporation and
subsequent revised proposals are prepared and submitted by another
unincorporated operating unit of the same corporation, because the
legal offering entity under the proposal, i.e., the offeror
corporation, has not changed.
DECISION
Trandes Corporation protests an award to ManTech Field Engineering
Company (MFE Co.), a division of ManTech Advanced Systems
International, Inc. (MASI) under request for proposals (RFP) No.
N00604-93-R-0056, issued by the Department of the Navy, Fleet and
Industrial Supply Center, Pearl Harbor, Hawaii, for engineering,
installation and support services for electronic and communication
equipment and systems on board naval vessels and on shore stations
worldwide.
We deny the protest.
The Navy issued the RFP on June 18, 1993, contemplating award of an
indefinite-delivery/indefinite-quantity, time-and-materials contract
on a best value basis for a base period with four 1-year options. The
Navy received initial proposals from three offerors, including Trandes
and MASI. On April 1, 1994, after conducting discussions, and
requesting and receiving best and final offers (BAFO), the Navy
awarded the contract to MASI. Trandes protested this award to our
Office. We sustained the protest because the agency's cost evaluation
was unreasonable. Trandes Corp., B-256975.3, Oct. 25, 1994, 94-2 CPD para.
221.
In response to our decision, the agency reopened discussions, amended
the RFP, and requested revised proposals. On November 13, 1995,
Trandes and MFE Co., a division of MASI, submitted revised proposals,
and subsequently, on March 25, 1996, submitted revised BAFOs. On
March 29, the Navy awarded a contract under the RFP to MFE Co. The
contract award standard form (SF 26) by which the agency executed the
award did not identify MFE Co. as a division of MASI. The awardee
added the words "a division of [MASI]" to the contract award form,
signed and dated the form April 4, and returned it to the Navy.
On April 4, after receiving notification of the award, Trandes filed
this protest alleging that MFE Co. is a separate legal entity from
MASI, the original offeror, and thus the submission of a revised BAFO
by, and an award to, MFE Co. constitutes an unacceptable substitution
of offerors. The Navy responds that no substitution of offerors has
occurred; that MASI was the entity that submitted the initial proposal
and BAFO as well as the revised proposal and revised BAFO.
Trandes filed two subsequent protests challenging the evaluation and
source selection process that resulted in the award to MFE Co. After
the Navy advised our Office that it was undertaking the corrective
action of reopening negotiations in response to these subsequent
protests, we dismissed those protests. We did not dismiss the initial
protest because this protest argues that the alleged substitution of
offerors renders MASI ineligible to continue to compete under the RFP.
The name of an offeror need not be exactly the same in all of the
offer documents, although the offer documents or other information
available must show that differently-identified offering entities are
in fact the same legal entity. Dick Enters., Inc., B-259686.2, June
21, 1995, 95-1 CPD para. 286, recon. denied, Dick Enters., Inc.--Protest
and Recon., B-259686.3, Nov. 16, 1995, 95-2 CPD para. 223; Mark II, Inc.,
B-203694, Feb. 8, 1982, 82-1 CPD para. 104. In the context of negotiated
procurements, this requirement generally prohibits awarding a contract
to an ambiguously identified offeror inasmuch as this may not bind any
legal entity to the contract obligations, see Dick Enters., Inc.,
supra, or may evidence an unacceptable transfer or assignment of
proposals, or an improper circumvention of the regulations governing
the submission of late proposals, see Pedestrian Bus Stop Shelters,
Ltd., B-212570, Mar. 20, 1984, 84-1 CPD para. 331. The available
information must reasonably establish the identity of the offeror, and
such information may include records of incorporation, Gem Eng'g Co.,
B-251644, Mar. 29, 1993, 93-1 CPD para. 303, taxpayer identification
numbers (TIN) or other identification codes, Mark II, Inc., supra, and
other evidence relevant to determining identity. Dick Enters., Inc.,
supra.
Here, the initial proposal and BAFO undisputedly identified MASI as
the offering entity, whereas the record shows that MFE Co., a division
of MASI, is identified as the offeror in the revised proposal and
BAFO.[1] MASI itself is an incorporated subsidiary of ManTech
International, and is registered as a corporation of Virginia, as is
ManTech International. Being a separately incorporated entity, MASI
is a separate and distinct legal entity from ManTech International and
all other corporations, commercial ventures, or private individuals,
see Dick Enters., Inc., supra; Caldwell & Santmyer, Inc., B-260628,
July 3, 1995, 95-2 CPD para. 1; Pacific Information Management,
Inc.--Recon., B-224506.2, Sept. 15, 1986, 86-2 CPD para. 306; however,
MASI is not a separate legal entity from its own unincorporated
divisions and operating units. See Goss Fire Protection, Inc.,
B-253036, Aug. 13, 1993, 93-2 CPD para. 97.
In fact, the record shows that MASI has distinct operating units
within its corporate structure which are not themselves incorporated.
For example, the operating unit which prepared and submitted MASI's
initial proposal and BAFO was MASI's Systems Technology Center, which
was not incorporated and thus did not exist as a legal entity apart
from MASI. As such, MASI, not the Systems Technology Center, is the
undisputed legal offering entity under the proposal submitted prior to
Trandes' first protest.
Similarly, the record shows that MFE Co. is also an unincorporated
division of MASI and, as such, does not exist apart from MASI and can
only enter into contracts as the legal entity MASI. In this regard,
the revised proposal represented "the offeror" as a corporation
incorporated under the laws of the State of Virginia and stated the
offeror's TIN as that of MASI. Also, the individual who submitted and
signed the revised proposal and revised BAFO, as well as the contract
award document, is the head of MFE Co. and is authorized to execute
contracts on behalf of MASI. Furthermore, there is no evidence in the
record showing that MFE Co. is incorporated under the laws of any
state or otherwise has authority to contract apart from MASI. The
variation in names used by MASI or the agency throughout this proposal
process was a matter of form, which was nothing more than different
ways of referring to the same legal entity; therefore, no succession
of interest in, or transfer of, a proposal has occurred here.[2] See
Pedestrian Bus Stop Shelters, Ltd., supra.
Trandes contends, however, that a legal entity by the name ManTech
Field Engineering Corporation (MFE Corp.) in fact exists, and that
because under the corporation law of the State of Virginia the terms
"company" and "corporation" may be used interchangeably,[3] the
offeror MFE Co. must in fact be MFE Corp., a legal entity different
from MASI, such that it could be reasonably concluded that a transfer
of the proposal from MASI--the original proposing entity--has
occurred. In further support of this contention, Trandes has
submitted documentation showing that MFE Corp. is currently registered
in the State of Hawaii as a Delaware corporation.
The record shows that no legal entity by the name of MFE Corp.
currently exists as a corporation of any state, nor did it exist at
any time during the course of this procurement. Although a ManTech
company with the name MFE Corp. was incorporated in the State of
Delaware in 1982 (prior to the formation of MASI in Virginia in 1985),
MASI has submitted documentation showing that MFE Corp. changed its
name to ManTech Strategic Associates Ltd. in 1992. ManTech Strategic
Associates became an incorporated subsidiary of MASI. Later, MASI
began using the name MFE Co. to identify the unincorporated division
of MASI discussed above. MASI also explains that MFE Corp. is only
registered in Hawaii as a Delaware corporation because ManTech
Strategic Associates failed to effect a name change in the Hawaii
registration, and that ManTech Strategic Associates (under either
name) has not conducted any business in Hawaii in several years and
now intends to close this outstanding registration without updating
the name as soon as clearance on tax issues is received from that
state. Trandes has not presented any credible evidence showing that
MFE Corp. is an extant legal entity or that it was the entity that
submitted the revised proposal and revised BAFO. Thus, regardless of
how the State of Virginia actually applies its statute permitting
interchange of the terms "company" and "corporation," we do not
believe that this statute can be used to create a legal entity where
none exists.
The protest is denied.
Comptroller General
of the United States
1. The awardee's revised proposal and revised BAFO documents identify
the offeror as "[MFE Co.], a division of [MASI]" in both the
stationery letterhead and by specific statements in the text of the
documents. Wherever the proposal specifically identifies the
"offeror," the identification clearly identifies MFE Co. as the
offeror and, almost without exception, identifies it as a division of
MASI. Also, the corporate organization chart in the revised proposal
illustrates that MFE Co. is a part of MASI. Even in the rare
instances where MFE Co. was not in some way specifically identified as
a division of MASI, the proposal did not represent MFE Co. as
something other than a division of MASI. Although the executive
summary and the introduction to the technical proposal describe the
experience and the resources of ManTech International Corporation (the
parent corporation of MASI), and ManTech International stationery is
sometimes used, the proposal documentation clearly explains that MASI
is part of the ManTech International organizational structure. Such
inclusion of the names of corporate affiliates in a proposal does not
make the identity of the offeror ambiguous where, as here, it is
possible to sufficiently identify the offering entity so that it would
not be able to avoid the obligations of the offer. See Cline Enters.,
Inc., B-252407, June 24, 1993, 93-1 CPD para. 492.
2. To the extent the identification of the awardee in the contract
award form was MFE Co. without also identifying it as a division of
MASI can be considered an incorrect identification, it is a minor
informality which can be corrected after award, as was done here,
because it is clear from the proposal that the offeror is MFE Co., a
division of MASI. See Digital Equip. Corp., B-251105, Mar. 8, 1993,
93-1 CPD para. 213; Robert McMullan Son, Inc., B-215690, July 23, 1984,
84-2 CPD para. 92.
3. The protester cites Va. Code Ann. sec. 13.1-630 and 13.1-762 (Michie
1996), which states:
"A. A corporate name shall contain the word
'corporation,' . . . 'company,' . . . . Such words and
their corresponding abbreviations may be used
interchangeably for all purposes."