BNUMBER:  B-262238
DATE:  December 12, 1995
TITLE:  RSI Realty Services, Inc.

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Matter of:RSI Realty Services, Inc.

File:     B-262238

Date:     December 12, 1995

Robert W. Howells for the protester.
Arnette L. Georges, Esq., for the Department of Housing and Urban 
Development, 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's waiver of definitive responsibility criterion, set forth in 
solicitation for real estate acquisition management services to 
require that offerors possess a valid real estate brokers license 
prior to award, is unobjectionable where the requirement overstated 
the agency's actual needs, the agency's needs can be met through award 
to an offeror which did not satisfy the requirement but acquired the 
license shortly after award, and there is no reasonable possibility of 
prejudice to other offerors. 

DECISION

RSI Realty Services, Inc. (RSI) protests the award of a contract to 
CitiWest Properties, Inc. under request for proposals (RFP) No. 
H02R950642, issued by the Department of Housing and Urban Development 
(HUD), for real estate asset management (REAM) services.  RSI argues 
that CitiWest should not have received award because it did not have a 
New Jersey real estate broker license as of the time of award, as 
required by the solicitation.

We deny the protest.

The RFP provided for the award of a firm, fixed-price, indefinite 
quantity contract for the performance of REAM services in Atlantic, 
Cape May, Cumberland, Ocean and Salem counties, New Jersey.  The 
contractor will be responsible for preserving and protecting single 
family properties until the units are sold to the public or accepted 
by nonprofit organizations.  The RFP provided that award would be made 
to the responsible offeror whose offer, conforming to the 
solicitation, was determined most advantageous to the government, cost 
and other factors considered.

The agency issued four amendments to the solicitation, with amendment 
No. 004 adding the following:

     "LICENSE REQUIREMENTS.  The Contractor must possess a valid New 
     Jersey Real Estate License.  Evidence of the valid New Jersey 
     Real Estate Broker License must be submitted to HUD prior to 
     contract award."

The agency received three proposals, including those of CitiWest and 
RSI, by the RFP's closing date.  Discussions were held, and best and 
final offers were received and evaluated.  CitiWest's proposal 
received a total score of 79 points, with an evaluated price of 
$678.05 per unit.  RSI's proposal received a total score of 70 points, 
with an evaluated price of $730.45 per unit.  The agency determined 
that CitiWest's proposal represented the best value to the government 
and made award to that firm.

RSI argues that the award was improper because CitiWest did not have a 
New Jersey Real Estate Brokers license at the time of award as 
required by amendment 004.

The contracting officer states that during the consideration of 
CitiWest's proposal, she was informed by CitiWest that, although that 
firm did not have the requisite real estate license, if CitiWest were 
awarded the contract, it would incorporate in New Jersey and promptly 
obtain all necessary licensing to perform the contract.  The 
contracting officer adds that she contacted two other HUD offices for 
which CitiWest was performing REAM contracts, and was informed that 
within 5 days of award of those contracts CitiWest had established and 
fully staffed REAM offices, and that within 2 weeks of award CitiWest 
had obtained all necessary licenses.  Based on the foregoing, and 
certain other information not relevant here, the agency found CitiWest 
responsible and awarded the contract to that firm on July 21.  
CitiWest subsequently obtained the requisite licenses with an 
effective date of August 15.  

Our Office generally does not review affirmative determinations of 
responsibility because such determinations are based in large measure 
on subjective judgments.  Bid Protest Regulations, 4 C.F.R.  
21.3(m)(5) (1995); Stocker & Yale, Inc., B-238251, May 16, 1990, 90-1 
CPD  475.  One exception to this rule is where a solicitation 
contains definitive responsibility criteria, that is, specific and 
objective standards established by an agency to measure an offeror's 
ability to perform the contract.  Federal Acquisition Regulation (FAR)  
9.104-2; Tama Kensetsu Co., Ltd., and Nippon Hodo., B-233118, Feb. 8, 
1989, 89-1 CPD  128.  These special standards put firms on notice 
that the class of prospective contractors is limited to those who meet 
the qualitative or quantitative criteria deemed necessary for adequate 
performance, e.g., unusual expertise, specialized facilities, or 
particular licenses.  Tucson Mobilephone, Inc. B-258408.3, June 5, 
1995, 95-1 CPD  267; Stocker & Yale, Inc., supra.  Here, as the 
agency agrees, the RFP's requirement that the awardee possess a valid 
New Jersey Real Estate Broker License at the time of award is a 
definitive responsibility criterion. 

As the record demonstrates, CitiWest simply did not have the license 
required as of the time of award.  Although, as pointed out by the 
agency, in certain cases we have recognized that a definitive 
responsibility criterion need not be satisfied literally if there is 
equivalent or comparable compliance, see, e.g., Unison Transformer 
Servs., Inc., 68 Comp. Gen. 74 (1988), 88-2 CPD  471 (requirement 
that offeror have reclassified a transformer which performed properly 
for 1 year met where the offeror demonstrated through laboratory 
testing that it could reclassify a transformer which would perform 
properly for 1 year); Pikes Peak Community College, B-199102, Oct. 17, 
1980, 80-2 CPD  293 (college's accreditation by a national 
association comparable to requirement that offeror be accredited by 
regional or state association), the assurances from CitiWest and the 
experiences of other HUD offices that CitiWest would be able to 
promptly obtain the license cannot be considered comparable to what 
the RFP stated was required--a valid New Jersey Real Estate Brokers 
License prior to award.  See Stocker & Yale, supra.
By finding CitiWest responsible and making award to that firm, the 
contracting officer effectively waived the RFP's definitive 
responsibility criterion that offerors possess the license prior to 
award.  See Topley Realty Co., Inc.,  65 Comp. Gen. 510 (1986), 86-1 
CPD  398

We find the waiver unobjectionable under the circumstances here.  It 
is apparent from the record that the requirement that the license be 
obtained prior to award exceeded the agency's actual needs, and that 
the award to CitiWest, which had demonstrated that it would in all 
likelihood be able to obtain the license shortly after award (and did 
in fact obtain one), met the agency's actual needs.  Id.; Ktech Corp.; 
Physical Research, Inc., B-241808; B-241808.2, Mar. 1, 1991, 91-1 CPD  
237, aff'd, Physical Research, Inc.--Recon., B-241808.4, June 10, 
1991, 91-1 CPD  552.  Further,  the record evidences no possibility 
of prejudice attendant to the waiver of the pre-award licensing 
requirement.  Three offers for these services were received, and there 
is no evidence, or reason to believe, that any firms were excluded 
from the competition due to the requirement.  Additionally, there is 
no indication that the content or pricing of any of the offers 
submitted would have been different if the requirement had permitted 
offerors to merely show the ability to obtain a license shortly after 
award.   Because the award to CitiWest met the agency's actual needs 
without prejudice to the other offerors, there is no basis to object 
to the waiver.  See Ktech Corp.; Physical Research, Inc., supra.  The 
award to CitiWest therefore was proper.

The protest is denied.

Comptroller General
of the United States