BNUMBER:  B-275929 
DATE:  April 21, 1997
TITLE: Matter of:Sonic Dry Clean, Inc. 

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Matter of:Sonic Dry Clean, Inc.

File:     B-275929

Date:April 21, 1997

Brian A. Darst, Esq., Andrew D. Irwin, Esq., and Marcia L. Stuart, 
Esq., Howrey & Simon, for the protester.
Col. Nicholas P. Retson, Capt. Philip T. McCaffrey, and Lt. Veronica 
S. Hale, Department of the Army, for the agency.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency improperly accepted awardee's bid despite alleged 
irregularities in the bid regarding acknowledgement of amendments, 
completion of procurement integrity certification, and compliance with 
statement of work requirements is denied where bid package reasonably 
provided no basis for contracting officer to question the 
responsiveness of the bid.

DECISION

Sonic Dry Clean, Inc. protests the award of a contract to James L. 
Moller under invitation for bids (IFB) No. DAKF04-96-B-0027, issued by 
the Department of the Army for diesel air-filter cleaning services at 
Fort Irwin, California.  Sonic challenges the agency's affirmative 
determination of the awardee's responsibility and the responsiveness 
of the awardee's bid.

We deny the protest.

The IFB, issued on August 26, 1996, contemplated the award of a firm, 
fixed-price contract for a base period with 4 option years to the low 
responsive, responsible bidder.  The IFB was amended prior to bid 
opening primarily to change the statement of work and bid schedule, 
provide information regarding the filters, and to add/delete certain 
other solicitation provisions.  Four bids were received by the amended 
November 25 bid opening time.  Moller submitted the apparent low bid, 
including all option years (at $1,323,344.10); Sonic submitted the 
apparent second low bid (at $1,348,837.50).  After conducting an 
informal survey of Moller's responsibility, which focused primarily on 
Moller's experience on construction-related contracts performed by his 
company, Moller Enterprises, the agency awarded a contract to Moller 
on December 20.  This protest followed.

Sonic's initial protest contentions relate to the agency's affirmative 
determination of Moller's responsibility and are based upon telephone 
conversations before and after award in which an employee of the 
awardee, apparently pursuing the possibility of awarding a subcontract 
to Sonic, requested information from the protester about filter 
cleaning services (and Sonic's filter cleaning abilities) and, the 
protester alleges, admitted that the awardee had insufficient 
knowledge of how to perform the required work.  Our Office will only 
review a challenge to an agency's affirmative determination of 
responsibility where there is a showing of possible bad faith on the 
part of the agency or that definitive responsibility criteria have not 
been met.  4 C.F.R.  sec.  21.5(c) (1997); King-Fisher Co., B-236687.2, 
Feb. 12, 1990, 90-1 CPD  para.  177, at 2.  The information furnished by the 
protester--relating to Moller's seeking a subcontractor to perform the 
work--does not show that the agency acted in bad faith in making its 
affirmative determination of responsibility.[1]

Upon receipt of the agency's protest report, which included a copy of 
the Moller bid (not previously available to the protester) and related 
contract file documents, Sonic amended its protest.  Sonic contends 
that the Moller bid should be rejected as nonresponsive for Moller's 
failure to adequately acknowledge solicitation amendments, execute the 
procurement integrity certification, and clearly identify the bidding 
entity.

As stated above, the IFB was amended prior to award primarily to 
change the statement of work and revise the bid schedule.  The 
amendments submitted with Moller's bid were signed by James T. Ewing, 
a supervisor employee of James L. Moller, and were dated November 23; 
the bid, which included the amendments and revised bid schedule, was 
signed by James L. Moller and was also dated 
November 23.  The protester contends that since Mr. Moller did not 
sign the amendments himself, the bidder failed to properly acknowledge 
receipt of the material amendments and the bid must be rejected as 
nonresponsive.  The agency reports, however, that Moller's bid signed 
by Moller contained the amendments and that the amended bid schedule 
was completed and submitted with the bid.  Consequently, regardless of 
Ewing's authority, the amendments were constructively acknowledged by 
the bidder, Moller.  Bonded Maintenance Co., Inc., B-235207, July 14, 
1989, 89-2 CPD  para.  51,at 6; First Fed. Data Serv., B-216487, Dec. 21, 
1984, 84-2 CPD  para.  685,at 2.  Since the bid shows that the bidder 
received the amendments and that the bidder is bound to perform in 
accordance with the terms of those amendments, the protester's 
challenge to the propriety of the bidder's acknowledgment of receipt 
of the amendments provides no basis to question the responsiveness of 
the bid.[2]

The IFB, as amended, contained an abbreviated procurement integrity 
certification (as part of the consolidated list of representations and 
certifications of Federal Acquisition Regulation (FAR)  sec.  52.212-3 
regarding commercial item procurements) in which the person 
responsible for the preparation of the offer was to certify that "I" 
either have no information or that "I" have disclosed information to 
the contracting officer concerning a violation or possible violation 
of procurement integrity law and regulation that may have occurred 
during the conduct of this procurement.  James T. Ewing signed the 
required abbreviated procurement integrity certification (stating that 
he had no such information) submitted with the Moller bid.[3]  Sonic 
contends that the Moller bid should be rejected as nonresponsive 
because Mr. Moller did not sign the abbreviated procurement integrity 
certificate himself.  Sonic contends that the bid does not 
conclusively demonstrate that Ewing had the authority to bind the 
bidder to the terms of the certification and that the contracting 
officer should have questioned Ewing's authority to sign the 
certification prior to awarding a contract to Moller.

The agency reports that the contracting officer did not question 
Ewing's signature on the procurement integrity certification.  The 
agency points out that although Moller signed the bid, elsewhere in 
the bid (such as in the price certification and amendment documents), 
Ewing was presented as a supervisor/project manager employee 
responsible for the offer--Moller certified in the bid that Ewing was 
an authorized agent of the bidder as identified in the bidder's 
independent price determination certification.  The agency also 
reports that subsequent to the filing of the protest issue, the Army 
confirmed with Moller that Ewing was authorized to complete the 
certification.

Our Office has recognized that separate individuals may sign the bid 
and the procurement integrity certification submitted with the bid so 
long as the certifier has the authority to bind the bidder to the 
terms of the certification.  M.R. Dillard Constr., B-271518.2, June 
28, 1996, 96-2 CPD  para.  154, at 5.  Our cases in this area generally hold 
that terms in the procurement integrity certificate at FAR  sec.  52.203-8, 
not present in this IFB, impose substantial legal obligations upon a 
contractor and that where there is a failure to conclusively 
demonstrate that these additional terms are accepted by the contractor 
the bid is nonresponsive.  Mid-East Contractors, Inc., 70 Comp. Gen. 
383 (1991), 91-1 CPD  para.  342 at 6.  Those cases are materially 
distinguishable from the matter at hand, however, given the 
abbreviated procurement integrity certificate in the IFB which simply 
does not impose upon the contractor the same substantial legal 
obligations (such as requirements for further certifications and 
reports).

Moreover, the record shows that the Moller bid presented information 
demonstrating Ewing's substantial role in the bid preparation, as well 
as his certified authority and significant responsibility for the bid 
pricing.  Thus, the bid reasonably demonstrated that the certifier, 
Ewing, was in a position to make a knowledgeable certification and 
that his signature bound himself and the bidder to the terms of the 
abbreviated certification.[4]  See Victoria Inn Ltd.; Beige Plane, 
Ltd.,
B-256724; B-256724.2, July 21, 1994, 94-2 CPD  para.  37, at 4.[5]

The protester next contends that the Moller bid should be rejected as 
nonresponsive due to an alleged ambiguity regarding the identity of 
the bidder and awardee.  The protester asserts that the contract file 
documents do not show that the bidder and awardee are the same legal 
entity.  The record shows that the bid was submitted in the name of 
James L. Moller, but that the agency's responsibility determination 
(which considered Moller's experience on contracts performed by Moller 
Enterprises) and post-award documentation refer to Moller Enterprises.  
The agency reports that the bidder and awardee are the same and 
that--apparently because post-bid opening correspondence received from 
the awardee was written on Moller Enterprises letterhead with the same 
address as that on Moller's bid and such correspondence was signed by 
James L. Moller or James T. Ewing, the same individuals identified in 
the James L. Moller bid--the agency's contracting personnel mistakenly 
referred to the awardee as Moller Enterprises.  The actual contract, 
however, clearly states that award was made to James L. Moller; the 
agency confirms that all other documents in its procurement file will 
be corrected to reflect the identity of the actual awardee (the 
bidder, James L. Moller) which was correctly identified on the 
governing contract award document.

The protester correctly states that an award to an entity other than 
that named in the bid would constitute an improper substitution of 
bidders requiring rejection of the bid as nonresponsive.  National 
Found. Co., 72 Comp. Gen. 307, 309 (1993) 93-2 CPD  para.  143, at 3.  The 
protester's allegation here that there has been an improper 
substitution, however, is not supported by the record.  The bid was 
submitted by James L. Moller, and the contract award, as issued, was 
made to the same entity, James L. Moller.  Contrary to the protester's 
contentions, there simply is no showing that the bidder here 
potentially could avoid the obligation to perform the contract.  In 
short, the agency's administrative errors in misidentifying the 
awardee on certain contract file documents and correspondence which do 
not accurately reflect the actual contract awardee, which errors will 
be corrected, provide no basis to question the identity and legal 
obligations of the awardee or the responsiveness of the bid.  Id.

The protest is denied.

Comptroller General
of the United States 

1. Sonic also protests that the awardee's bid should be rejected as 
nonresponsive for failure to comply with material solicitation 
requirements included in the IFB's statement of work.  The Moller bid, 
however, took no exception to the IFB requirements and is therefore 
responsive.  The descriptive literature provided by Moller after bid 
opening during the agency's review of the bidder's responsibility 
regarding its proposed subcontractor's process was submitted and 
considered only in assessing the bidder's responsibility and is not 
part of the bid.  To the extent Sonic takes issue with the agency's 
consideration of this information, it pertains to a matter of 
responsibility for which no showing of bad faith has been made.  TLC 
Sys., B-231969, Sept. 13, 1988, 88-2 CPD  para.  238, at 2.  Further, 
whether Moller complies with the stated performance requirements is a 
matter of contract administration not for our review.  4 C.F.R.  sec.  
21.5(a).

2. The protester has expressed concern as to the completeness of the 
award document in light of the report's presentation of the documents 
in separate attachments.  Since the agency affirmatively confirms that 
the contract properly included all of the amended IFB terms, despite 
the administrative error in compiling the documents for the agency 
report, the protester's allegation of the agency's improper relaxation 
of the amendments' material requirements upon award is not supported 
by the record.

3. The Moller bid also contained the full procurement integrity 
certification for contract modifications at FAR  sec.  52.203-9, which was 
also signed by Ewing as the person responsible for contract 
modification proposals; the IFB requirement for this certification, 
however, was deleted by solicitation amendment.  Since this 
acquisition was for commercially available services, the IFB did not 
contain the more comprehensive procurement integrity certificate of 
FAR  sec.  52.203-8, which has been interpreted by our Office as imposing 
substantial additional legal obligations (such as additional reporting 
requirements and certifications) on a bidder that are not included in 
the current IFB's certificate.  

4. The procurement integrity certification requirements were eliminatd 
by 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 which was only 
days after award here.  Id.   sec.  4401, 110 Stat. 678.

5. The protester points out that James L. Moller did not complete the 
certification in the IFB for the provision of the names of those 
individuals authorized to sign the bid; however, we do not find this 
omission material in light of our discussion above since the bid 
elsewhere showed there was no reasonable question as to the authority 
of the certifier here.