TITLE: Specialized Contract Services, Inc., B-283451, October 21, 1999
BNUMBER: B-283451
DATE: October 21, 1999
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Specialized Contract Services, Inc., B-283451, October 21, 1999
Decision
Matter of: Specialized Contract Services, Inc.
File: B-283451
Date: October 21, 1999
Herbert C. Ross for the protester.
COL Nicholas P. Retson, CPT Melissa T. Miller and Matthew W. Bowman, Esq.,
Department of the Army, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly accepted a bid that used the bidder?s trade name, rather
than its corporate name, where it was possible to identify, from evidence
that was existing and publicly available at the time of bid opening, the
actual bidder with sufficient certainty such that the bidder would not be
able to avoid the obligations of its bid.
DECISION
Specialized Contract Services, Inc. (SCSI) protests the proposed award of a
contract to Heavenly Ham under invitation for bids (IFB) No.
DABT23-99-B-0035, issued by the Department of the Army for meals for
military applicants at the Military Entrance Processing Station, Knoxville,
Tennessee.
We deny the protest.
The agency received three bids by the bid opening date of August 9, 1999.
Heavenly Ham?s total bid of $193,125 was low and SCSI?s total bid of
$224,625 was second low. Agency Report, Tab M, Abstract of Bids. The bid
submitted by Heavenly Ham was signed by Robert W. Tonker, Jr., and
identified the bidder as follows:
Heavenly Ham
9307 Kingston Pike
Knoxville, TN 37922
Agency Report, Tab F, Heavenly Ham Bid, at 1. In Heavenly Ham?s
representation and certification as to its "corporate status," the blank for
"sole proprietorship" was checked and included the following hand written
notation: "Limited Liability Corp." Id. at 17.
SCSI protests that the bid submitted by Heavenly Ham must be rejected,
arguing that "the legal entity ?Heavenly Ham? did not submit the bid."
Protest at 2. The protester points out that Heavenly Ham is a "nationwide
franchise" and "all the stores do business as (dba) ?Heavenly Ham? operating
under the franchise agreement." Id. at 1. The protester adds here that the
business license issued to the entity doing business at the proposed
awardee?s address is Knox-Ham Enterprises, LLC. Id. at 1-2.
After receipt of the protest, the agency checked the government?s Central
Contractor Registration (CCR), which listed the awardee?s "legal business
name" as "KnoxHam Enterprises," and stated that it was doing business as
"Heavenly Ham." Agency Report at 2; Agency Report, Tab J, CCR, at 1.
The awardee also provided the agency with a copy of its business tax returns
for 1998 and 1999, which lists the business as "Heavenly Ham," a prior
business tax license issued by Knox County, Tennessee, which lists the
proposed awardee?s business address as "Heavenly Ham, 9307 Kingston Pk,
Knoxville 37922," and a Department of Health, Food Service Inspection
Report, dated August 3, 1999, which lists the establishment?s name as
"Heavenly Ham." Agency Report, Tabs H and I. The awardee also supplied the
agency with a copy of articles of organization and certificate of existence
for Knox-Ham Enterprises, LLC (a Limited Liability Company). Agency Report,
Tab H. The agency concluded based upon the above that Heavenly Ham is the
trade name under which Knox-Ham conducts business, and that the bid
submitted therefore legally bound Knox-Ham to perform and was thus
acceptable.
In general, a contract cannot be awarded to any entity other than the one
that submitted the bid. While this rule generally applies in situations
where it is unclear from the face of the bid which of two or more legal
entities is the bidder, it does not prohibit an award where, as here, a
bidder uses its trade name instead of its formal corporate name in the bid.
Sunrise Int?l Group, Inc., B-251956, Feb. 8, 1993, 93-1 CPD para. 114 at 2.
Where a trade name is used, and it is possible to identify the actual bidder
with sufficient certainty that the bidder would not be able to avoid the
obligation of its bid, the acceptance of the bid is proper. Id.; Coonrod &
Assocs., B-228914, Dec. 3, 1987, 87-2 CPD para. 549 at 2. Evidence existing and
publicly available at the time of bid opening may be submitted after bid
opening and prior to award to establish the bidder?s use of the trade name.
Sunrise Int?l Group, Inc., supra; Coonrod & Assocs., supra.
The record here sufficiently identifies Heavenly Ham as the same legal
entity as Knox-Ham Enterprises, so that the bid submitted by Heavenly Ham at
9307 Kingston Pike, Knoxville, Tennessee, would legally bind Knox-Ham
Enterprises. The information on the CCR, as well as the business tax
licenses, business tax returns, food service inspection report, articles of
organization, and certificate of existence--evidence which existed and was
publicly available at the time of bid opening--show that Heavenly Ham with
the address of 9307 Kingston Pike in Knoxville is the trade name for
Knox-Ham Enterprises, a North Carolina LLC, and does not exist as a separate
legal entity. [1]
The protester next questions whether Robert Tonker, Jr., who signed the bid,
was authorized to do so. In response to the protest, the awardee submitted,
at the agency?s request, a written statement establishing that Mr. Tonker is
a operations manager for the awardee with full authority to act on its
behalf. Given that it is permissible for an agency to request that a bidder
verify and provide evidence of the signatory?s authority to bind the bidder,
and the awardee?s response which does not appear to be legally
objectionable, this basis of protest is without merit. Southwest Maintenance
Serv., B-258178, Dec. 15, 1994, 94-2 CPD para. 243 at 3.
The protester argues that the proposed awardee?s bid cannot be accepted
because at the time of bid opening the proposed awardee, a North Carolina
LLC, did not have the appropriate licenses to do business in Tennessee.
Because the RFP did not state specific state licensing requirements, the
allegation concerning the awardee?s possession of necessary business
licenses concerns the agency?s affirmative determination of responsibility,
which we will not review under the circumstances presented here. Meridian
Management Corp.; Consolidated Eng?g Servs., Inc., B-271557 et al., July 29,
1996, 96-2 CPD para. 64 at 7 n.4; Mid-America Management Servs., Inc., B-244103,
June 5, 1991, 91-1 CPD para. 537.
The protest is denied.
Comptroller General
of the United States
Notes
1. Contrary to the protester?s argument, the fact that the bid stated that
the bidder was a limited liability corporation, as opposed to a limited
liability company, is of no significance, given the other evidence that
clearly identifies the bidding entity.