BNUMBER: B-274776.2
DATE: January 31, 1997
TITLE: Hedgecock Electric, Inc.
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Matter of:Hedgecock Electric, Inc.
File: B-274776.2
Date:January 31, 1997
Jesse W. Rigby, Esq., Clark, Partington, Hart, Larry, Bond, Stackhouse
& Stone, for the protester.
Sandra M. Wozniak, John E. Lariccia, Esq., and Marian E. Sullivan,
Esq., Department of the Air Force, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Low bid was properly 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
Hedgecock Electric, Inc. protests the rejection of its bid and the
award of a contract to Overstreet Electric Company under invitation
for bids (IFB) No. F33601-96-B-9009, issued by the Department of the
Air Force for electrical work at Wright-Patterson Air Force Base,
Ohio. Hedgecock's bid was rejected because the individual designated
as the "certifier" on the certificate of procurement integrity did not
personally sign that document.
We deny the protest.
The IFB, issued July 15, 1996, required bidders to submit the standard
bid form (SF) 1442 and a bid bond. Additionally, because 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 section 27(e) of 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 certifies 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 certification 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."
Of the nine bids received by the August 22 bid opening, Hedgecock's
bid of $546,000 was low, and Overstreet's bid was second low at
$549,183. Hedgecock's bid contained the signature of Ronald W.
Hedgecock, who represents that he is the president of the firm. The
signature of Ronald W. Hedgecock was also included on the certificate
of procurement integrity in Hedgecock's bid, which listed Ronald W.
Hedgecock as the "certifier" and the "offeror or employee responsible
for the offer," and on the bid form which also represented Hedgecock,
as the president, as the "person authorized to sign [the] offer."
Overstreet protested to the agency on September 20 and to our Office
by letter dated September 26, alleging that the signatures on
Hedgecock's bid, bid bond, and certificate of procurement integrity
were not the same. Overstreet noted that it was apparent from a
comparison of the signatures that the signatures differed and alleged
that Hedgecock's foreman at Wright-Patterson, Richard Wade, had
actually executed the bid form (SF 1442) and the certificate of
procurement integrity using the president's name, and that Ronald W.
Hedgecock had personally signed only the bid bond. Overstreet
submitted three affidavits from former Hedgecock employees stating
that the signatures on the bid form and on the certificate of
procurement integrity were not that of Ronald W. Hedgecock.
Overstreet also submitted examples of Hedgecock's signature from
company correspondence.
In response to the protests, the Air Force asked Hedgecock to
authenticate its bid. Hedgecock's president, Ronald W. Hedgecock,
responded by stating that the firm's bid form and certificate of
procurement integrity were not executed by him personally but by
Richard Wade, the firm's general superintendent at Wright-Patterson,
in Mr. Hedgecock's name. Specifically, the firm's bid documents were
sent to Richard Wade at Wright-Patterson so that Mr. Wade could
hand-deliver the bid package to the scheduled bid opening. However,
several pages were inadvertently omitted. When the omission was
discovered, the missing pages were faxed to Mr. Wade. Mr. Hedgecock
verbally authorized Mr. Wade to sign the president's name where
required on the documents. Thus, while Ronald W. Hedgecock personally
signed the bid bond, Richard Wade signed the president's name on both
the certificate of procurement integrity and the SF 1442.
Because Hedgecock's president, Ronald W. Hedgecock, did not personally
execute the procurement integrity certificate, the agency determined
that Hedgecock's bid was nonresponsive and sustained Overstreet's
agency-level protest.[2] The agency awarded the contract to
Overstreet and Hedgecock's protest followed.
Hedgecock argues that the signature on the procurement integrity
certificate is the "personal" signature of Mr. Hedgecock, "affixed to
the document at his direction for the purpose of expressly and
personally making the certifications required and with the specific
intent to firmly and irrevocable bind Hedgecock Electric, Inc. to the
bid." The protester argues that Mr. Ronald W. Hedgecock was bound by
the certification because he authorized Mr. Wade to sign on his behalf
and that Mr. Wade acted only as Mr. Hedgecock's "scribe," the
"extension of Mr. Hedgecock's will, intention and hand . . . ."
In our view, the agency properly rejected Hedgecock's bid because its
president, 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 prohibition 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.
While Richard Wade may have been authorized to sign Hedgecock's
procurement integrity certificate as an agent of Ronald W. Hedgecock
and to bind the firm to the terms of the certificate, he 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 obligation is unclear, such that the
failure of the named certifier to personally execute the certificate
by properly signing it renders the bid nonresponsive. Metro
Monitoring Servs., Inc., B-274236, Nov. 27, 1996, 96-2 CPD
para. 204; Aerospace Design, 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. Metro Monitoring Servs., Inc.,
supra.
Since, contrary to the protester's position, Ronald W. Hedgecock, 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 had 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. Hedgecock, as required by the certificate. Further,
Mr. Hedgecock'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 Hedgecock 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. Accordingly, Hedgecock's bid was properly rejected as
nonresponsive. Metro Monitoring Servs., Inc., supra.
The protest is denied.
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. As a result, our Office dismissed Overstreet's protest on October
10, 1996.