MOTION FOR SUMMARY RELIEF GRANTED IN PART; PROTEST DENIED: April 29, 1993 GSBCA 12346-P RMTC SYSTEMS, INC., Protester, v. DEPARTMENT OF THE AIR FORCE, Respondent. Michael D. Hays of Dow, Lohnes & Albertson, Washington, DC, counsel for Protester. Clarence D. Long, III, and Joseph M. Goldstein, Office of the General Counsel, Department of the Air Force, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, BORWICK, and GOODMAN. GOODMAN, Board Judge. On March 29, 1993, RMTC Systems, Inc. (RMTC or protester) protested the rejection of its offer by the Department of the Air Force (Air Force or respondent) pursuant to solicitation no. F49650-93-R-0048 for automatic data processing equipment and the award of the contract to Integrated Federal Solutions (IFS or intervenor). RMTC alleged that respondent had improperly rejected its proposal for a minor error in the certifications section of its offer. IFS, the awardee, intervened in this protest as an intervenor of right but withdrew its intervention on April 26, 1993. Pursuant to Board Rule 8(c)(1)[foot #] 1, respondent has filed a motion for summary relief (entitled Respondent's Motion for Summary Dismissal) on two bases. Respondent contends that the Board lacks jurisdiction, as RMTC is ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101 (1992). ----------- FOOTNOTE ENDS ----------- not an interested party because it is not a regular dealer as defined by the Walsh-Healy Act which is applicable to the subject procurement. Additionally, respondent moves for summary relief, alleging that RMTC was properly eliminated from the procurement, even though it was the low offeror, because RMTC falsely certified that it had not been previously terminated for default by any federal agency within the previous three-year period. We find that questions of material fact exist as to respondent's allegation that RMTC is not a regular dealer under the Walsh-Healy Act and deny respondent's motion on this ground. With regard to the issue of false certification, we find there are no material facts in dispute. On May 12, 1991, the Department of the Navy terminated for default a contract between itself and RMTC. The Armed Services Board of Contract Appeals upheld the Navy's termination for default of RMTC in a decision dated October 12, 1992. Accordingly, RMTC's certification in this procurement that it has not been default terminated by a federal agency within the past three years was a material misrepresentation, and RMTC was properly found ineligible for award. We grant respondent's motion for summary relief on this ground and deny the protest. Findings of Fact 1. On December 22, 1992, the Air Force issued solicitation no. F49650-93-R-0048 for automatic data processing equipment (the solicitation). Protest File, Exhibit 6. The Air Force amended the solicitation twice. Id., Exhibits 8, 13. The solicitation sought the purchase, integration, and support of eighty-five Intel-based 486-DX-33 computers and monitors and seven networked postscript printers. Id., Exhibit 13 at 2-6-1. 2. The solicitation included the WALSH-HEALY PUBLIC CONTRACTS ACT REPRESENTATION (APR 1984), FAR (Federal Acquisition Regulation) 52.222-19. The representation reads as follows: The offeror represents as a part of this offer that the offeror is ( ) or is not ( ) a regular dealer in, or is ( ) or is not ( ) a manufacturer of, the supplies offered. Protest File, Exhibit 6 at 19. 3. RMTC, in its best and final offer (BAFO) dated February 22, 1993, executed the WALSH-HEALY PUBLIC CONTRACTS ACT REPRESENTATION as follows: The offeror represents as a part of this offer that the offeror is (x) or is not ( ) a regular dealer in, or is ( ) or is not ( ) a manufacturer of, the supplies offered. Protest File, Exhibit 16 at 19. 4. With respect to a previous procurement conducted by the Defense Logistics Agency, DLA900-91-A535, by letter dated January 25, 1993, the U.S. Small Business Administration (SBA) withheld a Certificate of Competency (COC) from RMTC because RMTC allegedly failed to comply with the requirements of the Walsh-Healy Act. Protest File, Exhibit 27 at 1. 5. By letter dated February 1, 1993, the Department of Labor (DOL) determined that the SBA's determination of January 25, 1993, that RMTC was not a regular dealer pursuant to the Walsh-Healy Act with regard to the supplies sought in the previous procurement conducted by the Defense Logistics Agency, DLA900-91-A535, was correct. Protest File, Exhibit 28. 6. With respect to a previous procurement conducted by the Department of the Navy, by letter dated March 30, 1993, the Navy informed RMTC that it proposed to reject RMTC's bid on solicitation no. N00163-92-R-0436 as nonresponsible for lack of compliance with the requirements of the Walsh-Healy Act. Protest File, Exhibit 29. 7. With respect to a previous procurement conducted by the Department of the Navy, by letter dated April 7, 1993, the Navy informed RMTC that a determination of ineligibility had been rendered by the contracting officer in the procurement under solicitation no. N00604-92-R-0146, because, inter alia, the Defense Contract Management Area Office, Denver, stated that RMTC neither qualified under the Walsh-Healy Act as a manufacturer, as certified by RMTC, nor qualified as a regular dealer. Protest File, Exhibit 32. 8. On May 29, 1991, before the issuance of the solicitation in the instant procurement, the Department of the Navy issued a decision to terminate for default contract no. N60921-90-C-A421 between RMTC and the Navy for RMTC's failure to deliver goods in conformance with the terms of the contract. Protest File, Exhibits 17 at 5, 23. 9. RMTC appealed the Navy contracting officer's decision to terminate for default contract no. N60921-90-C-A421 to the Armed Services Board of Contract Appeals and the appeal was docketed as ASBCA 43466. Protest File, Exhibits 17 at 6, 26. Jeff Stollman, President of RMTC, appeared for RMTC in the appeal. Id., Exhibits 17 at 6, 26 at 1. On October 16, 1992, the board denied RMTC's appeal, concluding that RMTC "was in default and was properly terminated under the terms of the contract Inspection and Default Clauses." RMTC Systems, Inc., ASBCA 43466 (Oct. 16, 1992); Protest File, Exhibits 17 at 10, 26 at 6. 10. On July 24, 1992, Jeff Stollman, on behalf of RMTC, submitted an offer to the Defense Supply Service-Washington on solicitation no. MDA903-92-R-0036. Protest File, Exhibit 24. In the offer, Mr. Stollman certified and represented that RMTC has not, within a three-year period preceding the offer, had one or more contracts terminated for default by any federal agency. Id., Exhibit 50. 11. On August 27, 1992, Jeff Stollman, on behalf of RMTC, submitted an offer to the Defense Supply Service-Washington on solicitation no. MDA903-92-B-0045. Protest File, Exhibit 25. In the offer, Mr. Stollman certified and represented that RMTC has not, within a three-year period preceding the offer, had one or more contracts terminated for default by any federal agency. Id., Exhibit 38. 12. On September 17, 1992, Jeff Stollman, on behalf of RMTC, submitted an offer to the Navy on solicitation no. N00604-92-R-0146. Protest File, Exhibit 30. In the offer, Mr. Stollman certified and represented that RMTC has not, within a three-year period preceding the offer, had one or more contracts terminated for default by any federal agency. Id., Exhibit 38. 13. On December 18, 1992, Jeff Stollman, on behalf of RMTC, submitted an offer to the Navy on solicitation no. N00604-92-R-0163. Protest File, Exhibit 31. In the offer, Mr. Stollman certified and represented that RMTC has not, within a three-year period preceding the offer, had one or more contracts terminated for default by any federal agency. Id., Exhibit 35. 14. On February, 18, 1993, Jeff Stollman, on behalf of RMTC, submitted an offer to the Air Force on solicitation no. F49650-93-R-0047. Protest File, Exhibit 17 at 3. In the offer, Mr. Stollman certified and represented that RMTC has not, within a three-year period preceding the offer, had one or more contracts terminated for default by any federal agency. Id., Exhibit 4. 15. The solicitation for the instant procurement, as well as the solicitations mentioned in Findings 10-14 above, included the CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS (MAY 1989) FAR 52.209-5 which read, in pertinent part: (a)(1) The Offeror certifies, to the best of its knowledge and belief, that -- . . . . (ii) The Offeror has ( ) has not ( ), within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency. . . . . 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 SECTION 1001, TITLE 18, UNITED STATES CODE. (b) The Offeror shall provide immediate written notice to the Contracting Officer if, at any time prior to contract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. . . . . (d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. (e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. . . . (IAW FAR 9.409(a)) Protest File, Exhibit 6 at 22-23. 16. On February 22, 1993, Jeff Stollman, on behalf of RMTC, submitted its BAFO on solicitation no. F49650-93-R-0048 which is the subject of this protest. In its BAFO, RMTC executed the CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND OTHER RESPONSIBILITY MATTERS, in part, as follows: The Offeror has ( ) has not (x), within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency. Protest File, Exhibit 16 at 22. 17. RMTC was determined to be the low offeror after receipt of BAFO's in response to the solicitation. Protest File, Exhibit 17. 18. After receipt of BAFO's, the contracting officer issued a determination to award to other than the low offeror which stated that RMTC, as low offeror, was ineligible for award. This determination read, in relevant part: RMTC, the low offeror, was not selected for award because they were determined to be nonresponsive based upon facts that . . . they certified "The offeror has not within a three year period preceding this offer had one or more contracts terminated for default by any federal agency." The AFDW contracting Office received information that they had in fact, been terminated for Default by another Federal agency within a three-year period. (See attached ASBCA No 43466, Decision on Protest, filed by RMTC System). Also IAW [in accordance with] DFAR 203.70, CONTRACTOR STANDARDS OF CONDUCT, to be eligible for award of a Government Contract, a prospective contractor must conduct themselves with the highest degree of integrity, honesty, and business ethics. Protest File, Exhibit 17. The AFDW contracting office had forwarded to the contracting officer a copy of RMTC's response to solicitation no. F49650-93-R-0047. Protest File, Exhibit 17 at 3. In the offer, Mr. Stollman certified and represented that RMTC has not, within a three-year period preceding the offer, been terminated for default by any federal agency. 19. By letter dated March 5, 1993, the contracting officer notified protester that the contract had been awarded to IFS. The contracting officer informed protester: Your proposal was determined to be nonresponsive based upon the fact that . . . you certified "The offeror has not, within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency." The AFDW Contracting Officer has received information that you have, in fact, been Terminated for Default by another Federal agency within a three-year period. Due to false certification, you have been determined ineligible for contract award. Protest File, Exhibit 20 (Letter to RMTC). 20. On March 30, 1993, RMTC filed the instant protest. Protester stated in part: This letter [the contracting officer's letter dated March 5, 1993, to RMTC] . . . cited a minor error in RMTC's proposal as the basis for rejection of RMTC's offer. This error in the certifications section of RMTC's offer (regarding RMTC's have been [sic] terminated for default) did not effect [sic] the price or terms of RMTC's offer and could have been clarified under the FAR section regarding minor errors and informalities. Complaint at 1. 21. The protest was granted in part by the Board's decision dated April 5, 1993, which suspended respondent's delegation of procurement authority because respondent had failed to promptly notify protester of contract award.[foot #] 2 On April 5, 1993, respondent's counsel advised the Board tht while some contract items had been delivered to the Air Force, none had been accepted. 22. In response to respondent's motion for summary relief, Mr. Stollman filed a reply and a sworn statement entitled Second Declaration of Jeff Stollman. Mr. Stollman's Second Declaration read, in pertinent part: RMTC developed a bid coordinator's manual over six years ago. Included in this manual was a guide to filling out the boilerplate sections of Section K in Federal solicitations. For the section on "termination for default" the manual instructs checking the box for "has not" because RMTC had never been terminated for default when the manual was developed. RMTC has only once been terminated for default. RMTC hired Matthew Dommich as its new bid coordinator approximately seven months ago. Mr. Dommich was provided with RMTC's manual which continued to direct filling out the section in question "has not." I was personally unaware that RMTC was misrepresenting the status of its having been terminated for default in its federal solicitations until the subject protest arose. RMTC has never intentionally attempted to hide or deny the termination for default of May, 1991. RMTC has never made separate representation (other than the checkoff box in Section K) that it had not been terminated for default in May, 1991. While we are disappointed in both the original termination and its being upheld by the ASBCA, we have never denied it nor made any knowing attempts to hide it. It is a matter of record that we are powerless to cover up. Since this protest issue was raised, RMTC has consistently filled out its solicitations with the checkoff box "has." Second Declaration of Jeff Stollman (Stollman Declaration) (April 17, 1993) 7-13. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Protester did not receive the contracting officer's letter dated March 5, 1993, until March 29, 1993. ----------- FOOTNOTE ENDS ----------- Discussion The Board may only review protests filed by an interested party. 40 U.S.C. 759(f)(1) (1988). An "interested party" is "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." 40 U.S.C. 759(f)(9)(B) (1988). Respondent moves for summary relief on the basis that protester is not an interested party because it is not a regular dealer under the Walsh-Healy Act. Respondent also moves for summary relief on the basis that RMTC submitted a nonresponsive bid because it falsely certified that it had no contracts terminated for default within a three-year period preceding its offer. In order to prevail in its motion for summary relief, respondent must meet its burden of establishing the absence of genuine issues of material fact, a prerequisite for summary relief. Griffin Services, Inc., GSBCA 11171, 91-3 BCA 24,156, at 120,872. 1. Questions of Material Fact Remain as to RMTC's Status as a Dealer Under the Walsh-Healy Act The solicitation required offerors to make a representation as to whether they were or were not regular dealers in accordance with the Walsh-Healy Act.[foot #] 3 Finding 2. RMTC represented that it was a regular dealer. Finding 3. Respondent alleges that "[d]espite RMTC's certification, RMTC is not a regular dealer in the supplies being offered. . . . RMTC's representation that it was a regular dealer is false, and RMTC is not eligible for award in this procurement." Respondent's Motion for Summary Dismissal at 8. To support its allegation that RMTC is not a regular dealer in the supplies being offered in the instant procurement, respondent has presented documentation from other unrelated procurements stating that protester did not meet the Walsh-Healy Act requirements for those procurements. Findings 4-7. The documentation submitted by respondent does not indicate the nature of the goods offered by RMTC in the other procurements. Such determinations made in other procurements as to RMTC's ----------- FOOTNOTE BEGINS --------- [foot #] 3 The Walsh-Healy Act requires that one who furnishes supplies to an executive department, such as the Air Force, in any amount exceeding $10,000 must be "a regular dealer in the . . . supplies . . . to be . . . used in the performance of the contract." 41 U.S.C. 35(a) (1988). A "regular dealer" is "a person that owns, operates, or maintains a store, warehouse, or other establishment in which the materials, supplies, articles, or equipment of the general character ----------- FOOTNOTE BEGINS --------- described by the specifications and required under the contract ----------- FOOTNOTE BEGINS --------- are bought, kept in stock, and sold to the public in the usual course of business." 48 CFR 22.601 (1992) (emphasis added). ----------- FOOTNOTE ENDS ----------- noncompliance with the Walsh-Healy Act requirements do not establish that RMTC failed to meet the Walsh-Healy Act requirements of the instant procurement. Accordingly, questions of material fact remain as to respondent's allegations that RMTC is not a dealer under the Walsh-Healy Act with regard to the supplies offered in the instant procurement, and we deny respondent's motion for summary relief on this issue. 2. RMTC was Properly Eliminated From the Procurement for Submitting a Material Misrepresentation as to a Previous Default Termination The solicitation contained a detailed certification in accordance with 48 CFR 9.409(a) (1992) (FAR 9.409(a)) that required offerors to certify that they had not, within a three-year period preceding the offer, had one or more contracts terminated for default by any federal agency. Finding 15. RMTC certified that it had not been default terminated by completing the certification in its proposal as follows: "(a)(1) The Offeror certifies, to the best of its knowledge and belief, that -- . . . . (ii) the Offeror has ( ) has not (x), within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency. Finding 16. By letter dated March 5, 1993, the contracting officer notified protester that award of the contract was made to IFS. The contracting officer informed protester that its offer was determined to be nonresponsive based upon the fact that it had certified that it had not, within a three-year period preceding this offer, had one or more contracts terminated for default by any federal agency. As the contracting officer had received information that RMTC had been previously terminated for default, and RMTC had made a similar certification after the previous default was upheld by the Armed Services Board, she considered the certification in the instant procurement to be false and a violation of 48 CFR 203.70 (1992) (DFAR 203.70), Contractor Standards of Conduct. She therefore determined that RMTC was ineligible for contract award.[foot #] 4 Finding 19. ----------- FOOTNOTE BEGINS --------- [foot #] 4 The contracting officer found RMTC's offer "nonresponsive" as the result of the false certification. From a (continued...) ----------- FOOTNOTE ENDS ----------- In its protest complaint, RMTC responded to the allegation of false certification: This letter [the contracting officer's letter dated March 5, 1993, to RMTC] . . . cited a minor error in RMTC's proposal as the basis for rejection of RMTC's offer. This error in the certifications section of RMTC's offer (regarding RMTC's have been [sic] terminated for default) did not effect [sic] the price or terms of RMTC's offer and could have been clarified under the FAR section regarding minor errors and informalities. Finding 20. RMTC characterizes the alleged false certification as a "minor error" or "informality" and responds that this issue "could have been clarified." Finding 20. In its reply to respondent's motion and its Second Declaration of Jeff Stollman, RMTC argues that it did not intentionally misrepresent the fact that one of its previous contracts had not been terminated for default within the previous three years, and "agrees that its submission in response to the subject solicitation includes an error in the checkoff box regarding whether or not RMTC has been terminated for default during the past three years. . . . [and] the response to the checkoff box is also in error in most of RMTC's submissions over the past six months." Protester's Reply to Respondent's Motion at 1; Finding 22. RMTC characterizes the error as one which is "the result of a change in personnel," and explains further: The certifications and representations of Section K [of the solicitation] are primarily boilerplate clauses that are included in most solicitations. As such, these are filled out by RMTC's bid coordinator, not Mr. Stollman who signs the bids. During 1992, RMTC hired a new bid coordinator. The bid coordinator was provided with RMTC's Bid Coordinator Manual which includes directions on filling ----------- FOOTNOTE BEGINS --------- [foot #] 4 (...continued) review of protester's interrogatories to respondent, one could conclude that protester is attempting to classify the issue as one of responsibility rather than one of responsiveness. The certification itself classifies the issue as a "responsibility matter." As discussed herein, the resolution of this protest does not depend on whether the determination of the contracting officer resolved an issue of responsiveness or responsibility. Rather, the issue is whether RMTC was properly eliminated from the procurement as the result of a material misrepresentation in its BAFO. ----------- FOOTNOTE ENDS ----------- out the standard boilerplate sections of Section K. Included among these boilerplate sections is the checkoff box for contracts terminated for default. While RMTC was found in default of a Navy contract within the past three years, the RMTC manual had been developed six years ago at which time RMTC had never been terminated for default. . . . The May, 1991 Termination for Default preceded the hiring of RMTC's new bid coordinator. RMTC did not realize that the manual had become misleading and a systematic error was introduced into RMTC's solicitation that was only rectified when the issue was raised during the instant protest. Furthermore, the "certification" included in Section K is not a true certification. It does not require a signature. If it had required a signature, then the error would have been caught earlier by Mr. Stollman, himself, when he signed the documents. In fact, the "certification" is nothing more than a checkoff box that requires nothing more than a check- mark. Protester's Reply to Respondent's Motion at 2.[foot #] 5 The Certification Requires a Material Representation Protester's arguments fail for several reasons. First, RMTC's attempt to diminish the importance of the certification is not supported by the explicit language of the certification. The certification clearly warns the offeror as follows: 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 SECTION 1001, TITLE 18, UNITED STATES CODE. . . . . (e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. . . . (IAW FAR 9.409(a)) (emphasis added). ----------- FOOTNOTE BEGINS --------- [foot #] 5 These arguments are supported by a sworn declaration by Jeff Stollman, President of RMTC. Finding 22. ----------- FOOTNOTE ENDS ----------- Finding 15. These contractual admonishments clearly place the offeror on notice of the materiality of the representation contained in the certification. Mr. Stollman's self-serving classification of the language as "boilerplate," which he therefore assumes may be filled out by someone other than the president of the company, ignores the plain language of the solicitation and FAR 9.404(a), which requires that the certification be placed in the solicitation. The fact that there is no separate signature line, but only a "checkoff" box, neither relieves the offeror of its responsibility to furnish an accurate certification nor relieves the offeror of the consequences of failing to do so. Protester Failed to Act in Accordance With the Standard of Care Required in the Certification Protester also violated the standard of care that is set forth in the solicitation for the offeror to exercise in assuring the accuracy of the certification: (d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. Finding 15. Mr. Stollman's attempt to shift the burden of compliance to his "new employee" by pleading personal ignorance of his own "outdated" employee manual ignores his own responsibility as president of the company to act in accordance with knowledge he possesses as required by the above language. The above language clearly states that an offeror's good faith effort to make the certification is to be judged by whether there has been the use of knowledge normally possessed by a prudent person in the ordinary course of business. The fact that a contractor may not have established a system of records in order to collect such data is not a valid defense to a failure to accurately certify the lack of previous default terminations. Mr. Stollman, as the president of the company, admits that he was personally aware of the prior default termination, yet places blame on the "new employee" and the outdated manual. Finding 22. This failure to render certifications based upon the actual knowledge of the president was an ongoing error, resulting in false, though allegedly unintentional, certifications as to the same issue in five other procurements, in addition to the instant procurement. Findings 10-14. He possessed the knowledge required in order to make an accurate certification, yet failed to do so. Accordingly, he failed to act in accordance with the standard of care required in the certification. Protester Violated the Applicable Standards of Conduct With Regard to Internal Control Systems Necessary to Avoid Making Inaccurate Certifications As explained by the contracting officer in her determination to award to other than the low offeror, she eliminated RMTC from the procurement because RMTC had failed to comply with applicable standards of contractor conduct. IAW [in accordance with] DFAR 203.70 CONTRACTOR STANDARDS OF CONDUCT, to be eligible for award of a Government Contract, a prospective contractor must conduct themselves with the highest degree of integrity, honesty, and business ethics. Finding 18. The standards cited by the contracting officer require that: Government contractors must conduct themselves with the highest degree of integrity and honesty. Contractors should have standards of conduct and internal control systems that -- (1) Are suitable to the size of the company and the extent of their involvement in Government contracting, . . . . DFAR 203.7000. (a) A contractor's system of management controls should provide for -- . . . . (2) Periodic reviews of company business practices, procedures, policies, and internal controls for compliance with standards of conduct and special requirements of Government contracting; . . . . DFAR 203.7001. Mr. Stollman's casting blame on RMTC's bid coordinator, and alleging that "RMTC did not realize that the manual had become misleading and a systematic error was introduced into RMTC's solicitation that was only rectified when the issue was raised during the instant protest," makes it apparent that his company did not have in place a proper internal control system as required by DFAR 203.7000 nor periodic reviews to monitor his company's default terminations in order to make accurate certifications as required by the instant proposal, which is a special requirement of Government contracting. DFAR 203.7001(a)(2). Such procedures are the contractor's responsibility and are required to prevent such "misleading and systematic errors" as the false certifications which were made by RMTC not only in this procurement but in five previous procurements as well. Findings 10-14. Mr. Stollman attempts to shift the burden on to the drafter of the solicitation by alleging that if the certification had required a separate signature, the Government would have detected RMTC's error earlier. The burden of preventing such errors is not on the Government, to be "rectified" when raised for the first time in a bid protest, as suggested by protester. The fact that the certification is a "checkoff box" diminishes neither its importance nor its materiality. While he knew of the previous default termination, Mr. Stollman states that he was "personally unaware that RMTC was misrepresenting the status of its having been terminated for default in its federal solicitations until the subject protest arose." Finding 22. This does not excuse the inaccurate certification. Rather, it is an admission that he failed to comply with the certification requirement of the solicitation, the underlying regulation, and the standard of conduct discussed above. Protester's False Certification, While Allegedly Unintentional, is a Material Misrepresentation Mr. Stollman admits that RMTC's certification as to the lack of previous defaulted contracts was inaccurate but alleges the misrepresentation was not intentional. This misrepresentation was caused by protester's failure to have in place internal controls and procedures to assure the accuracy of the certification, and the failure of its president, who had actual knowledge of the previous default termination, to complete the certification in accordance with the knowledge he admittedly possessed. As such, while allegedly not intentional, protester's certification was false, misleading, and unquestionably a material misrepresentation. The Contracting Officer Properly Eliminated RMTC From the Procurement as the Result of the Material Misrepresentation Having determined that protester's false certification was a material misrepresentation and a violation of the terms of the solicitation, underlying regulations, and standards of conduct, we turn to the question of whether the contracting officer acted properly in eliminating RMTC from the procurement. In University Systems, Inc. v. Department of Health and Human Services, GSBCA 12039-P, 1992 BPD 380 (Nov. 19, 1992), a material misrepresentation of the offeror raised serious doubts as to the offeror's integrity. The protester had submitted a letter from a representative of the manufacturer of its offered mouse. This letter certified that the offered mouse was compliant with the Trade Agreements Act (TAA) and manufactured entirely in the United States. The agency contacted the signatory of the letter who stated that she had neither signed nor authorized the letter. The representative testified that the mouse, while TAA compliant, was not manufactured entirely in the United States. Based on this false certification letter, the contracting officer eliminated the protester from the competitive range, determining that the integrity of the procurement process had been compromised. At the hearing, protester offered an affidavit swearing that the representative had authorized USI to sign the mouse manufacturer's letter. The Board found that the protester's testimony was not credible. Protester also argued that its elimination from the competitive range was a determination of responsibility, and the fact that it was not allowed to rebut this determination by referral to the SBA violated its due process rights. The Board found that in view of such a material misrepresentation, the issue was not one of the offeror's responsibility, nor even that of the integrity of the bidder. Rather, such conduct brings into question the integrity of the bidding process itself. The integrity of the procurement process demands that the contracting officer be able to take the documents contained in an offeror's submission at face value. The contracting officer, when faced with a material misrepresentation, was no longer able to give the documents contained in that offeror's submission equal weight and credibility with those submitted by the of other offerors. The contracting officer was therefore within his authority to remove the offeror from the competitive range. The Board also found that its de novo review had provided an adequate opportunity for the protester to be heard in accordance with its due process rights. We suspended the instant procurement to protect protester because of respondent's failure to timely notify protester of award. At the time of the suspension, no contract items had been accepted by respondent. Finding 21. Protester has had an opportunity to be heard at this Board on the issue of its certification with regard to prior defaults. As this Board stated in Sterling Federal Systems, Inc., 90-2 BCA 22,802, 1990 BPD 70, when we invalidated an award to an offeror that had made material misrepresentations in its offer: [w]e must protect the integrity of the procurement process and disqualify [the awardee] from this procurement. . . . [The awardee's] misrepresentation destroys any confidence in any of its representations . . . . Any further consideration of [the awardee's] proposal would provoke "suspicion" and "mistrust" and would "reduce confidence in the competitive procurement process." . . . The integrity of the system demands no less. 90-2 BCA at 114,512-13, 1990 BPD 70 at 23. In the instant protest, the contracting officer, confronted with a material misrepresentation in the form of a false certification, eliminated protester from the procurement, despite protester's allegations in this protest that the misrepresentation was unintentional. Based upon our finding that RMTC's false certification was a material misrepresentation that violated the clear language of the solicitation, including the requisite standard of care required for making the certification, the underlying regulations, and the applicable standards of conduct, we find that RMTC was properly eliminated from this procurement. Decision With regard to respondent's motion for summary relief, we find that issues of material fact remain in dispute as to RMTC's alleged noncompliance with the requirements of the Walsh-Healy Act, and deny respondent's motion on that issue. It is undisputed that RMTC's certification that it had not had one or more contracts default terminated by any federal agency within three years of the offer in this procurement constituted a material misrepresentation. The contracting officer properly found RMTC to be ineligible for contract award. No issues of material fact remain in dispute as to this issue. Accordingly, respondent's motion for summary relief is granted on this issue and the protest is DENIED. The Board's decision of April 5, 1993, suspending respondent's delegation of procurement authority hereby lapses. _________________________ ALLAN H. GOODMAN Board Judge We concur: ________________________ _________________________ DONALD W. DEVINE ANTHONY S. BORWICK Board Judge Board Judge