A contractor by any name
- By Carl Peckinpaugh
- May 21, 2001
A fundamental requirement in federal contracting is the need to identify precisely the party with which the government is dealing. There is a surprisingly large body of case law on this subject, which shows how often companies make mistakes. On the other hand, those precedents make it easy to draw guidance for resolving situations.
In general, uncertainty in identifying the bidder on a government contract renders a proposal unacceptable. There is a sound policy behind this rule — when there is uncertainty on the identity, it may be impossible to determine who is responsible for performing the contract. Rather than enter such an uncertain relationship, the government has decided it is better to disqualify such proposals as defective, and contract with someone else.
Some uncertainty must be tolerated, given the imperfect nature of human conduct. Thus, the bidder's name need not appear exactly the same way in every proposal document. But when there are differences in the name, other information must be reasonably available to show the government that the different designations in fact refer to the same entity.
This flexibility is necessary because the identity of the bidder cannot be changed after submitting a proposal. Any attempt to do so will invalidate the proposal. The practicalities of this situation have resulted in a balance between perceived "minor informalities," which may be corrected or ignored, and more significant problems that will result in rejecting the proposal.
For example, the use of a corporation's official name on some documents, and a fictitious or trade name on others, will not disqualify a proposal if it is obvious that both names refer to the same firm. But this only works if it is clear from available evidence before the proposal submission that both names were recorded with the proper state government officials and that both refer to the same entity.
Along with the bidder's name, many proposal documents require listing specific numeric identifiers to further define the bidder. Typically, this includes numbers for taxpayer identification and employer identification, a data universal numbering system number and, in Defense Department contracts, a commercial and government entity code.
Sometimes, those numbers help eliminate ambiguity in a proposal by confirming that the different names refer to a single entity. But the numeric identifiers must make that clear. Any inconsistencies can introduce even more confusion.
In any event, the numeric identifiers are generally ignored. This is because any errors in the numbers may be corrected after submitting a proposal. For this reason, a government contracting officer's decision on how much weight, if any, to give the numeric identifiers in a proposal will be given considerable deference.
As companies reorganize and create new relationships and legal entities, these issues can become important. Care is needed throughout the process to avoid problems.
Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.