Uncertainty as to
the identity of an offering entity renders an offer technically
unacceptable, since ambiguity as to an offeror’s identity could
result in there being no party bound to perform the obligations
of the contract. See Dick Enterprises, Inc., B-259686.2, June
21, 1995, 95-1 CPD ¶ 286 at 2. The information readily
available, such as records for incorporation and DUNS numbers,
must reasonably establish that the differently-identified
entities are in fact the same concern. Id.; see also Trandes
Corp., B-271662, Aug. 2, 1996, 96-2 CPD ¶ 57 at 2. Moreover, as
a general matter, the entity awarded the contract should be the
entity that submitted the initial proposal. Townsend & Co.,
B-211762, Mar. 27, 1984, 84-1 CPD ¶ 352 at 4; Pedestrian Bus
Stop Shelters, Ltd., B-212570, Mar. 20, 1984, 84-1 CPD ¶ 331 at
3.
It is undisputed that DQSI, LLC was the offering entity. Its
name is the only name that appears anywhere in the proposal. It
is also undisputed that the contracting officer made award to
DQSI, Corporation, the name that appears on the award document.
The contracting officer reasonably turned to the CAGE code and
DUNS number in DQSI, LLC’s proposal to ascertain the firm’s
eligibility for award. CAGE codes are assigned to discrete
business entities by the Defense Logistics Agency and are used
to dispositively establish the identity of a legal entity for
contractual purposes. URS Group, Inc., B-402820, July 30, 2010,
2010 CPD ¶ 175 at 4. Similarly, the DUNS numbering system is
established by Dunn & Bradstreet Information Services, which
assigns discrete 9-digit numbers for purposes of establishing
the precise identification of an offeror or contractor. Id.; FAR
§§ 2.101, 4.605(b). These numbers are used to identify the
entity that is the offeror for a given procurement.
However, the Army’s searches of various databases using this
identifying information, as well as the information it received
from SBA, revealed a discrepancy between the identity of the
offering entity and the identity of the entity to whom those
numbers were assigned. Although this discrepancy introduced
uncertainty as to the identity of the offering entity, the
contracting officer appears to have made no effort to ensure
that the two entities were the same concern. She did not seek
clarification from SBA, and there is no evidence that she sought
additional information from DQSI. Instead, she appears to have
simply assumed that the two entities were the same because the
same person was the vice president and chief executive officer
of both entities. While this fact may show that there is a
relationship between the two concerns, it does not show that
they are the same legal entity, particularly given the differing
legal structures denoted by their respective names.
W.B. Construction has provided copies of documents, certified by
the Secretary of State of Louisiana, concerning DQSI, LLC.
Comments, Exhibit D. These documents show that DQSI, Corporation
converted from the organizational form of a corporation to the
organizational form of a limited liability company, DQSI, LLC,
in 2009. As a result, it appears that the entity called DQSI,
Corporation no longer exists. According to the protester, under
Louisiana law, a limited liability company and a corporation are
different and distinct legal entities formed under different
statutes--the distinction between the two legal structures is
not a mere formality or name change.
The record demonstrates that the Army failed to resolve the
uncertainty as to the identity of the offering entity and its
eligibility for award of this 8(a) contract, and awarded the
contract to an entity that was not an original participant in
this procurement, and does not appear to be a successor in
interest to the offering entity. We therefore find that the Army
improperly found the firm’s proposal technically acceptable and
sustain the protest. (W. B.
Construction and Sons, Inc., B-405874; B-405874.2, December
16, 2011) (pdf)
On the other hand, while challenges to the legal sufficiency of
a solicitation are not often raised in this forum, we have
considered, and will consider, a protester's timely claim that a
solicitation anticipates award of a contractual instrument that
is legally insufficient in some way. For example, we will
sustain a protest against the terms of a cancellation clause
where it purports to deny a contractor under an indefinite
quantity contract the benefit of the minimum guarantee.
Southwest Lab. of Okla., Inc., B-251778, May 5, 1993, 93-1 CPD
para. 368 at 4 (protest sustained where cancellation clause
converted agency failure to meet the minimum guarantee into a
termination for convenience to avoid liability for the minimum
guarantee).
Here, however, the solicitation specifically recognizes the
government's obligation to honor the minimum guarantee in the
event of a cancellation by the government. The protester has
shown no other basis to question the GSA's use of the
cancellation clause in this RFP issued under the FSS program.
(Advanced
Scientific Applications, Inc., B-400312.2, February 5, 2009)
(pdf)
Since the lease
does not contain a termination for convenience clause, we would
customarily find that remedial action that may disturb the award
is not feasible; in the absence of a termination for convenience
clause, we would ordinarily not recommend termination of an
awarded lease, even if we sustained the protest and found the
award improper. Peter N.G. Schwartz Co. Judiciary Square Ltd.
P’ship, B‑239007.3, Oct. 31, 1990, 90-2 CPD para. 353 at 11.
Here, however, Fedcar argues that remedial action is appropriate
because no legally binding lease contract between GSA and Duke
was formed. Based on our review of the record, we agree with
Fedcar that GSA did not form a legally binding lease contract
with Duke because it did not unconditionally accept Duke’s
offer. In this regard, the record shows that on December 17,
2007, when GSA accepted Duke’s offer and notified Duke of the
award, GSA forwarded to Duke a draft lease containing various
changes from the terms of the SFO and Duke’s offer, and
requested that Duke execute and return the lease. AR, Tab 13,
GSA’s Award Letter (Dec. 17, 2007). Fedcar has identified
various changes in this draft lease that it regards as material
deviations from the terms of the SFO and Duke’s offer. For
example, the agency changed a section of the SFO regarding the
installation of roof antennas by making the agency’s right to
mount an antenna conditional on Duke’s consent and added new
provisions addressing the removal of the antennas. The draft
lease also limited the lessor’s right to negotiate price and
imposed a mandatory procedure involving the use of appraisals to
determine the purchase price. Neither GSA nor Duke has asserted
that these are not changes from the SFO or Duke’s offer, or
explained why these changes are not material. Based on our
review of the record, we find these changes are material.
Moreover, the record does not include the modified draft lease
executed by both GSA and Duke, even though this document (if it
is in existence) was requested to be produced.
A purported acceptance of an offer that is conditioned on the
offeror’s assent to terms additional to or different from than
those offered is not an acceptance but a counteroffer, and does
not create a binding contract. 1st Home Liquidating Trust, et
al. v. United States, 76 Fed. Cl. 731, 739 (2007) (citing
Restatement (Second) of Contracts sect. 59); Romala Corp. v.
United States, 20 Cl.Ct. 435, 443 (1990); Climax Molybdenum Co.,
B-193828, July 3, 1979, 79‑2 CPD para. 2 at 4. On this record,
we find that GSA’s conditional acceptance of Duke’s offer did
not form a legally binding lease contract. Because GSA has
made material changes to the lease agreement from those
contained in the SFO, we recommend that GSA amend the SFO and
obtain revised proposals. We also recommend that GSA make a new
source selection decision taking into account the correct
present value ANSI/BOMA office area per square foot price of the
offers. In so doing, the agency should fully document its
cost/technical tradeoff, including a comparison of the
proposals’ strengths and weaknesses as well as the evaluated
price difference. In the event that Fedcar’s proposal is found
to be the best value, award should be made to that firm. We also
recommend that Fedcar be reimbursed the reasonable costs of
filing and pursuing the protests, including reasonable
attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1). Fedcar should submit
its certified claim for costs, detailing the time expended and
costs incurred, directly to the agency within 60 days after the
receipt of this decision. (Fedcar
Company, Ltd., B-310980; B-310980.2; B-310980.3, March 25,
2008) (pdf)
Proposal submitted prior to the
issue date of a request for proposals (RFP) is an offer in
response to the RFP that the contracting agency must consider
where the agency provided the offeror with prior written notice
that it would do so. (STG,
Inc., B-285910, September 20, 2000) |
