BNUMBER:  B-274236
DATE:  November 27, 1996
TITLE:  Metro Monitoring Services, Inc.

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

Matter of:Metro Monitoring Services, Inc.

File:     B-274236

Date:November 27, 1996

Mark M. Hathaway, Esq., for the protester.
Douglas McCall for Key West Weather Technologies, an intervenor.
Jerry A. Walz, Esq., Alden F. Abbott, Esq., and Lisa J. Obayashi, 
Esq., Department of Commerce, 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

Low bid should be rejected as nonresponsive where its certificate of 
procurement integrity identified one person as the certifier but a 
different person signed the certifier's name on the certificate; the 
manner of execution of the certificate creates doubt about whether one 
individual representative of the bidder has made an unequivocal 
commitment to satisfy the substantial legal obligations imposed by the 
certificate.

DECISION

Metro Monitoring Services, Inc. protests the proposed award of a 
contract to Key West Weather Technologies by the Department of 
Commerce, National Oceanic & Atmospheric Administration, under 
invitation for bids (IFB) No. 51RANW600039 for weather observation 
services at Key West International Airport, Florida.

We sustain the protest.

The agency's Mountain Administrative Support Center in Colorado issued 
the IFB on behalf of the National Weather Service as a total small 
business set-aside for the weather observation services for a base 
period of 1 year with 2 option years.  Since the contract was expected 
to exceed $100,000, the IFB, pursuant to Federal Acquisition 
Regulation (FAR)  sec.  3.104-10(a), contained the standard certificate of 
procurement integrity clause found at FAR  sec.  52.203-8.  That clause 
implements the Office of Federal Procurement Policy (OFPP) Act, 41 
U.S.C.  sec.  423(e) (1994), which precludes federal agencies from awarding 
a contract to a firm unless the officer or employee responsible for 
preparing the offer or bid certifies in writing that neither he nor 
those employees who participated in preparing the bid has any 
information concerning violations or possible violations of the OFPP 
Act, and to certify to the veracity of that disclosure.[1]  Mid-East 
Contractors, Inc., 70 Comp. Gen. 383 (1991), 91-1 CPD  para.  342.  The 
certification requirement obligates the officer or employee 
responsible for the bid or offer to become familiar with the 
prohibitions of the OFPP Act, and imposes a requirement to make full 
disclosure of any possible violations of the OFPP Act.  Id.  
Additionally, the signer of the certificate is required to collect 
similar certifications from all other individuals involved in the 
preparation of the bid or offer.  41 U.S.C.  sec.  423(e)(1)(B).

The certification clause incorporated in the IFB stated, in pertinent 
part, the following:

     "CERTIFICATE OF PROCUREMENT INTEGRITY

        "(1)  I, [Name of certifier]                                , 
     am the officer or employee responsible for the preparation of 
     this offer and hereby certify that, to the best of my knowledge 
     and belief,  .  .  .  I have no information concerning a 
     violation of  .  .  . the 
        [OFPP] Act  .  .  .  occurring during the conduct of this 
        procurement .  .  .  .

        "(2)  .  .  .  I further certify that, to the best of my 
     knowledge and belief, each officer, employee, agent, 
     representative, and consultant of [Name of Offeror]                              
     who has participated personally and substantially in the 
     preparation or submission of this offer has certified that he or 
     she is familiar with, and will comply with, the requirements of  
     .  .  .  [the OFPP] Act  .  .  . ,  and will report immediately 
     to me any information concerning a violation or possible 
     violation of  .  .  .  [the OFPP] Act  .  .  .  pertaining to 
     this procurement.

                    .     .     .     .     .

        "(4)  I agree that, if awarded a contract under this 
     solicitation, the certifications required by  .  .  .  the Act 
     shall be maintained in accordance with paragraph (f) of this 
     provision.

        [Signature of the officer or employee responsible for the 
        offer and date]

        [Typed name of officer or employee responsible for the offer]

                    .     .     .     .     .

        "THIS CERTIFICATION CONCERNS A MATTER WITHIN THE JURISDICTION 
     OF AN AGENCY OF THE UNITED STATES AND THE MAKING OF A FALSE, 
     FICTITIOUS, OR FRAUDULENT CERTIFICATION MAY RENDER THE MAKER 
     SUBJECT TO PROSECUTION UNDER TITLE 18, UNITED STATES CODE, 
     SECTION 1001."

The low bid at the August 6 bid opening was submitted by Key West 
Weather Technologies for $474,000; Metro Monitoring Services, Inc. 
submitted the next low bid at $487,788.  Key West Weather 
Technologies's bid contained the signature of Douglas McCall, who 
represents that he is the sole proprietor of that firm.  The signature 
of Douglas McCall was also included on the certificate of procurement 
integrity in Key West Weather Technologies's bid, which listed Douglas 
McCall as the "certifier" and the "officer or employee responsible for 
the offer."

In its protest filed with our Office on August 20, Metro contends that 
Helen McCall--  a term employee of the National Weather Service at the 
location where the contract is to be performed--is also a principal in 
and exercises substantial control over Key West Weather Technologies, 
and that award to that firm would thus violate the FAR  sec.  3.601 
preclusion of awards to business concerns or other organizations owned 
or substantially owned or controlled by one or more government 
employees.[2]  Helen McCall is the wife of Douglas McCall.  In 
commenting on the agency report, the protester noted that it is 
apparent from a comparison of the signatures of Douglas McCall in Key 
West Weather Technologies bid with his signatures on his bid protest 
correspondence and with the signature of his wife contained on her 
affidavit, that Douglas McCall's signatures in Key West Technologies's 
bid, including the bid's certificate of procurement integrity, were 
actually executed by Helen McCall, and that Key West Weather 
Technologies's bid should therefore be rejected.

Although Mr. McCall initially stated in an affidavit submitted with 
the agency report that he "signed the bid as the individual 
responsible for submission of bids on behalf of [his] company," he now 
concedes that his signatures in the bid--including his signature on 
the certificate of procurement integrity--were not executed by him 
personally but by his wife in his name.  Mr. McCall explains that he 
was unable to sign the bid himself because he was suddenly called out 
of town on a family emergency just prior to the due date for the 
submission of bids, and that he authorized his wife to sign the 
otherwise already prepared bid for him in his absence and to submit 
the bid to the agency.

As a preliminary matter, the agency argues that Metro's protest is 
untimely because Metro did not file its protest until August 20, more 
than 10 calendar days after the basis of protest was assertedly known 
or should have been known, as required under our Bid Protest 
Regulations, section 21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to 
be codified at 4 C.F.R.  sec.  21.2(a)(2)).  In this regard, the agency 
contends that on August 9, a Metro employee performing another 
contract at the Key West International Airport discussed the results 
of the bid opening with Ms. McCall, and, according to Ms. McCall, 
stated that he knew that she is married to the owner of Key West 
Weather Technologies and that Metro planned to file a protest alleging 
a conflict of interest due to her status as a government employee.

Metro denies that its employee mentioned the possibility of a protest 
to Ms. McCall on August 9 and asserts that the information on which 
its protest was based is not merely the marital relationship between 
the McCalls but rather the evidence that Ms. McCall is a principal in, 
and controls, Key West Weather Technologies.  Metro's founder states 
in an affidavit that Ms. McCall's control of Key West Weather 
Technologies became apparent in an August 12 telephone conversation 
with her in which she allegedly stated to him that if she were offered 
a supervisory position with Metro, Key West Weather Technologies would 
claim a mistake in its bid and withdraw, making Metro the apparent low 
bidder.  While the specifics of the
August 12 conversation are disputed by Ms. McCall, we will resolve 
doubt as to when the protester became aware of its basis for protest 
in favor of the protester for purposes of determining timeliness.  
Eklund Infrared, 69 Comp. Gen. 354 (1990), 90-1 CPD  para.  328; Warren 
Pumps, Inc., B-258710, Feb. 13, 1995, 95-1 CPD  para.  79.  Thus, we 
consider the protest timely filed since it was filed within 10 
calendar days of the August 12 date on which the protester assertedly 
knew of the information forming the basis of its protest.

We believe that Key West Weather Technologies's bid should be rejected 
as nonresponsive because its owner, who the bid identifies as the 
individual responsible for the bid, did not personally execute the 
procurement integrity certificate included in its bid.

As a result of the substantial legal obligations imposed by the 
certification requirement of the OFPP Act, implemented by the 
certificate of procurement integrity clause, and given the express 
requirement for the certificate to be separately signed, a bid with an 
improperly executed certificate of procurement integrity renders the 
bid nonresponsive.  Mid-East Contractors, Inc., supra; Sweepster 
Jenkins Equip. Co., Inc., B-250480, Feb. 8, 1993, 93-1 CPD  para.  111.  
Specifically, where the manner of execution of the certificate creates 
doubt about whether an individual representative of the bidder has 
made an unequivocal commitment to satisfy the substantial legal 
obligations imposed by the OFPP Act, the bid is nonresponsive.  North 
Central Constr., Inc., B-256839, July 5, 1994, 94-2 CPD  para.  9.

The reason for this rule is that the procurement integrity 
certification imposes on one named individual representative of the 
bidder--the officer or employee of the contractor responsible for the 
bid or offer--a direct obligation to become familiar with the OFPP 
Act's prohibitions against certain conduct.  This certificate imposes 
on the bidder, and its representative, a requirement to make full 
disclosure of any possible violations of the OFPP Act, and to certify 
to the veracity of that disclosure. The certifying individual also 
attests that every officer, employee, agent, representative or 
consultant of the contractor involved in preparation of the bid or 
offer is familiar with the requirements of the OFPP Act, and has filed 
a certification indicating no knowledge of any possible violation.  In 
addition, the certifying individual must represent that all 
individuals involved in the preparation of the bid or offer will 
report any information concerning a possible violation of the OFPP Act 
to the officer or employee signing the certification.  The 
certification provisions also prescribe specific contract remedies for 
a false certification, including withholding of profits from payments 
and terminating errant contractors for default.  These provisions are 
materially different from those to which the bidders otherwise are 
bound.  Mid-East Contractors, Inc., supra; Aerospace Design, Inc., 
B-259350, Mar. 23, 1995, 95-1 CPD  para.  161.

We have recognized that an agent of a bidder may execute the 
certificate in his or her own name so long as he or she is the 
"officer or employee responsible for the offer" and has the actual 
authority to bind the bidder to the legal obligations contained in the 
certificate at the time the bid is submitted.  See Sweepster Jenkins 
Equip. Co., Inc., supra.  However, where the certifier is listed on 
the certificate as an individual different from the agent who actually 
signs the certificate, the bid is nonresponsive because the manner of 
execution of the certificate creates doubt about whether an individual 
representative of the bidder has made an unequivocal commitment to 
satisfy the substantial legal obligations imposed by the OFPP Act.  
Aerospace Design, Inc., supra; North Central Constr., Inc., supra. 

Here, Helen McCall, while she may have been authorized to sign Key 
West Weather Technologies's bid as an agent of her husband and to bind 
the firm to the terms of the certificate, was not listed on the 
certificate as the certifier.  Where an agent signs for the named 
certifier in the certificate of procurement integrity, we have found 
that the identity and commitment of the individual, who will be the 
focus of the OFPP Act's obligations, is unclear, such that the failure 
of the named certifier to personally execute the certificate by 
properly signing it renders the bid nonresponsive.  Aerospace Design, 
Inc., supra; North Central Constr., Inc., supra.   This is so because 
the OFPP Act, through its implementing regulations, contemplates the 
execution of the certificate personally by the certifier by requiring 
the named officer or employee of the contractor responsible for the 
bid ("I") to certify "to the best of my knowledge and belief" that he 
or she has no information concerning violations or possible 
violations, and that individuals who have participated in the 
preparation of the offer have certified that they are familiar with 
and will comply with the Act and will report immediately to the 
certifier any information concerning violations or possible 
violations.  Moreover, the making of a false certification could 
render the certifier subject to criminal prosecution.  Thus, in our 
view, the execution of the certificate is an act required to be 
performed personally by the certifier and not through an agent of the 
certifier.  Aerospace Design, Inc., supra, citing State v. Tedesco, 
397 A.2d 1352, 1357 (Conn. 1978) (taking of an oath is an act which 
may not be delegated to an agent).

Since Douglas McCall, the purported certifier, did not personally 
execute the certificate, we cannot say that he certified "to the best 
of [his] knowledge and belief" that he has no information of 
violations or possible violations, and that individuals who have 
participated in the preparation of the offer have certified that they 
are familiar with and will comply with the Act and will report 
information concerning violations to Mr. McCall, as required by the 
certificate.  Further, Mr. McCall's failure to personally execute the 
certificate creates doubt about whether any individual representative 
of the bidder has made an unequivocal commitment to satisfy the legal 
obligations imposed by the OFPP Act and whether a false certification 
could render the certifier subject to criminal prosecution.

In sum, the manner in which Key West Weather Technologies executed its 
bid puts into question whether the purported signer of the certificate 
is legally subject to the material obligations imposed by the 
certificate and to the penalties that the law provides for violation 
of the terms of the certificate, and, accordingly, Key West Weather 
Technologies's bid should be rejected as nonresponsive.[3]  See 
Aerospace
Design Inc., supra; Southwest Maintenance Serv., B-258178, Dec. 15, 
1994, 94-2
CPD  para.  243.

We recommend that the agency make award to Metro, the second low 
bidder, if that bidder is otherwise eligible.  In addition, we 
recommend that Metro be reimbursed the costs of filing and pursuing 
the protest, including reasonable attorneys' fees.  Bid Protest 
Regulations  sec.  21.8(d)(1), 61 Fed. Reg. 39039, 39046 (1996) (to be 
codified at 4 C.F.R.  sec.  21.8(d)(1)).  Metro's certified claim for such 
costs, detailing the time expended and costs incurred, should be 
submitted directly to the agency within 60 days after receipt of this 
decision.  Bid Protest Regulations,  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

1. The Federal Acquisition Reform Act of 1996 eliminated the 
procurement integrity certification requirements contained in section 
27(e) of the OFPP Act, 41 U.S.C.  sec.  423(e).  Pub. L. No. 104-106,  sec.  
4304, 110 Stat. 642, 659-665 (1996).  However, the solicitation at 
issue here was issued prior to the effective implementation date of 
the amended provision.  Pub. L. No. 104-106,  sec.  4401, 110 Stat. 678.

2. This regulation is intended to avoid any conflict of interest that 
might arise between the employees' interests and their government 
duties, and to avoid the appearance of favoritism or preferential 
treatment by the government toward its employees.  FAR  sec.  3.601; H H & 
K Builders, Inc., B-238095, Feb. 23, 1990, 90-1 CPD  para.  219.

3. As we are sustaining the protest on this basis, we need not address 
whether an award to Key West would violate FAR  sec.  3.106.  In this 
regard, both Helen McCall and Douglas McCall deny that she is a 
principal in, or exerts any control over Key West Weather 
Technologies, and point to the fact that she will be serving merely in 
the capacity of an employee of the firm.