Under what conditions do miscertifications matter?

The following issue was raised by a reader: Most government solicitations include representations and certifications that must be completed by the offerors. What are the consequences when an offeror fails to complete such representations and certifications properly?

Almost every government solicitation requires offerors to complete a set of representations and certifications as a condition of eligibility for award of the contract. These representations and certifications cover a wide variety of topics, and the potential consequences of errors in these representations and certifications can be severe.

As an initial matter, it is always important that an offeror try to be as truthful as possible in response to the representation and certification requirements. Intentional misstatements may subject the offeror and/or the individual responsible for the certification to substantial criminal and/or civil liability. Even unintentional errors can cause significant problems, especially if they result from the offeror's carelessness.

Mistakes in completing the representations and certifications do not all have the same effect. Some errors may be corrected when they are discovered. Others may not. However, in all cases it is imperative that the contracting agency not overlook errors of this sort.

In Florida Professional Review Organization Inc., B-253908.2, Jan. 10, 1994, 94-1 CPD Paragraph 17, the General Accounting Office provided an advisory opinion on this point to a U.S. District Court that was considering a suit by a disappointed offeror for the operation of a utilization and quality-control peer review organization in Florida. The plaintiff argued that the contracting agency improperly failed to acknowledge and credit the plaintiff's self-certification as a physician-sponsored organization.

According to the opinion, an organization must include at least 10 percent of the licensed physicians in the state to be considered a physician-sponsored organization. The plaintiff certified compliance but did so in a way that made the certification suspect.

On this basis, GAO upheld as reasonable the agency's rejection of the plaintiff's proposal.

GAO occasionally has approved agency decisions to allow the correction of certifications. In Gold Appraisal Co., B-259201, March 15, 1995, 95-1 CPD Paragraph 144, GAO denied a protest against an agency's decision to allow correction of a miscertification regarding potential conflicts of interest in a procurement of appraisal service reviews. Although the awardee failed to complete the certification correctly, the agency believed the matter could be addressed adequately in the administration of the pact. GAO agreed.

In contrast, more scrutiny has been applied by the boards of contract appeals. In National Medical Staffing Inc., DOTBCA No. 2568, 95-1 BCA Paragraph 27,341, the Transportation Department's Board of Contract Appeals upheld a Coast Guard decision to end a contract following the discovery that the contractor had incorrectly certified in its offer that it had no contracts terminated for default within the three-year period before submission of the offer.

An offeror must exercise care to ensure its representations and certifications are accurate. Failure to do so can have serious consequences.

**

Peckinpaugh is a member of the government contracts section of Winston & Strawn, Washington, D.C. This column can be read on FCW's home page at http://www.fcw.com.

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