BNUMBER:  B-271750.2
DATE:  March 26, 1997
TITLE:  M&M Welding & Fabricators, Inc.--Reconsideration

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Matter of:M&M Welding & Fabricators, Inc.--Reconsideration

File:     B-271750.2

Date:March 26, 1997

Richard L. Moorhouse, Esq., and Stacey E. Young, Esq., Holland & 
Knight, for the protester.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, participated in the preparation of the decision.

DIGEST

General Accounting Office (GAO) will not consider, upon request for 
reconsideration, arguments that could have been, but were not, raised 
during initial consideration of the protest since to do so would 
undermine the goal of GAO's bid protest forum--to produce fair and 
equitable decisions based on consideration of the parties' arguments 
on a fully developed record.

DECISION

M&M Welding & Fabricators, Inc. requests that we reconsider our 
decision in M&M Welding & Fabricators, Inc., B-271750, July 24, 1996, 
96-2 CPD  para.  37, in which we denied its protest of the award of a 
contract to American Combustion Industries, Inc. (ACI) under 
invitation for bids (IFB) No. 9639, issued by the Architect of the 
Capitol for the retubing of one or more coal/gas-fired boilers in the 
United States Capitol Power Plant.

We deny the request for reconsideration.

The solicitation included the following "Qualification of Bidders" 
paragraph:

     "Firms shall be regularly engaged in the installation and service 
     of coal/gas-fired boilers.  Each bidder shall furnish a list of 
     not less than three (3) similar boiler rehabilitation projects 
     (at least one of which must be a steam boiler) completed 
     satisfactorily by the Contractor during the past five (5) years. 
     . . ."

The agency determined that ACI, the apparent low bidder, met the IFB's 
qualifications, and awarded the firm the contract.  M&M protested that 
the agency had unreasonably determined that ACI satisfied the 
solicitation's definitive responsibility criteria.

Definitive responsibility criteria are specific and objective 
standards established by an agency for use in a particular procurement 
to measure a bidder's ability to perform the contract.  Federal 
Acquisition Regulation  sec.  9.104-2.  These special standards of 
responsibility limit the class of bidders to those meeting specified 
qualitative and quantitative qualifications necessary for adequate 
contract performance.  Topley Realty Co., Inc., 65 Comp. Gen. 510 
(1986), 86-1 CPD  para.  398.

During our initial consideration of the protest, both the agency and 
M&M divided the qualification of bidders paragraph into two 
qualifications:  first, regular engagement in the installation and 
service of coal/gas-fired boilers; and, second, a listing of not less 
than three similar boiler rehabilitation projects.  The agency 
initially took the position that each qualification was a definitive 
responsibility criterion, but subsequently shifted its view to 
maintain that the first qualification--regular engagement in the 
installation and service of coal/gas-fired boilers--was not a 
definitive responsibility criterion because it was not a specific and 
objective standard.[1]

We agreed with the agency.  The requirement that a bidder be 
"regularly engaged in the business" merely advises potential bidders 
that past performance will be considered in deciding whether the 
contractor has the capacity to perform in a satisfactory manner.  
Rolen-Rolen-Roberts Int'l; Rathe Prods., Inc./Design Prod., Inc., 
B-218424 et al., Aug. 1, 1985, 85-2 CPD  para.  113; E.J. Murray Co., Inc.; 
W.M. Schlosser Co., Inc., B-212107; B-212107.2, Mar. 16, 1984, 84-1 
CPD  para.  316.  Such a requirement does not set out a specific, objective 
standard measuring the bidder's ability to perform; rather, the 
provision expresses in general terms a factor which is encompassed by 
the contracting officer's subjective responsibility determination.[2] 
Our Bid Protest Regulations preclude us from reviewing a contracting 
officer's affirmative responsibility determination absent a showing of 
possible bad faith on the part of government officials or that a 
definitive responsibility criterion was not met.  4 C.F.R.  sec.  21.5(c) 
(1996).  Since these circumstances were not present here, we did not 
consider M&M's allegations with respect to this aspect of the 
qualification provision.

In its request for reconsideration, M&M argues that we made a material 
error of law in determining that the requirement to be "regularly 
engaged in the installation and service of coal\gas-fired boilers" was 
not a definitive responsibility criterion.  M&M abandons its prior 
interpretation of the qualification of bidders paragraph and now 
argues that "the only reasonable interpretation" of the paragraph is 
that it constitutes one definitive responsibility criterion requiring 
evidence of regular engagement in the installation and service of 
coal\gas-fired boilers to be shown quantitatively by proof that, over 
the past 5 years, the bidder successfully completed three boiler 
rehabilitation projects involving equipment similar to the boilers at 
issue here.

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must either show that our prior decision contains 
errors of fact or law, or present information not previously 
considered that warrants reversal or modification of our decision.  4 
C.F.R.  sec.  21.14(a).  We will not consider arguments that could have 
been, but were not, raised during our initial consideration of the 
protest since to do so would undermine the goal of our bid protest 
forum--to produce fair and equitable decisions based on consideration 
of the parties' arguments on a fully developed record.  Liebig Int'l, 
Inc.; Defense Logistics Agency--Recon., B-265662.2, B-265662.3, Mar. 
28, 1996, 96-1 CPD  para.  169; Ford Contracting Co.--Recon., B-248007.3; 
B-248007.4, Feb. 2, 1993, 93-1 CPD  para.  90.  This request does not meet 
the standard for reconsideration of our decision.

During the pendency of the protest, M&M clearly formulated its 
interpretation of the qualification of bidders paragraph.  The firm's 
comments on the agency report set forth what it termed two "key" 
definitive responsibility criteria and discussed them separately:

     "(i) a showing of the offeror's regular engagement in the 
     installation and service of coal\gas-fired boilers, and
     "(II)a listing by the offeror with its bid of not less than three 
     similar boiler rehabilitation projects satisfactorily completed 
     within the past five years."

In a supplemental filing, the agency concurred with M&M's 
interpretation of the paragraph as consisting of two criteria, but 
disagreed with the protester as to their nature.  M&M did not 
introduce the integrated interpretation it now espouses in its 
response to this filing, but again discussed the paragraph as though 
it consisted of two criteria.  M&M provides no explanation of why it 
did not raise this new interpretation during the pendency of the 
protest, and, as the protester characterizes this interpretation as 
"the only reasonable one," we can think of no credible explanation for 
its failure to do so.  Since this argument could have been, but was 
not, raised during the protest, it does not provide a basis for 
reconsideration of our decision.  Ford Contracting Co.--Recon., supra; 
The Dep't of the Army--Request for Recon., B-237742.2, June 11, 1990, 
90-1 CPD  para.  546.

M&M also challenges our conclusion that the requirement that a bidder 
be "regularly engaged in the business" is not a definitive 
responsibility criterion because it does not set out a specific, 
objective standard measuring the bidder's ability to perform.  M&M 
cites two cases in which we purportedly found that bidder 
qualifications provisions lacking a quantitative standard were 
definitive responsibility criteria.

This is another argument that could have been, but was not, raised 
during the pendency of the protest.  In its supplemental filing, the 
agency put M&M on notice that it did not consider the requirement to 
be "regularly engaged in the service and installation of 
coal\gas-fired boilers" to be a definitive responsibility criterion 
because it was not a qualitative or quantitative standard, but was 
informational.  In response, M&M did not raise the legal argument it 
now raises, or any other legal argument, but merely disputed the 
agency's view that the requirement was informational.  Parties that 
withhold or fail to submit all relevant evidence, information, or 
analyses for our initial consideration do so at their own peril.  
Griffin-Space Servs. Co.--Recon., 64 Comp. Gen. 64 (1984), 84-2 CPD  para.  
528; Dep't of the Air Force--Recon., B-244007.3, Mar. 17, 1992, 92-1 
CPD  para.  287.  In any event, while the bidders' qualifications in the 
cases cited by M&M may not be quantitative standards, they are 
qualitative standards, compliance with which at least in part can be 
determined objectively.[3]  See The Mary Kathleen Collins Trust, 
B-261019.2,
Sept. 29, 1995, 96-1 CPD  para.  164.  Even now, M&M makes no such case for 
the qualification at issue here.

As a final matter, M&M urges us to revise our Bid Protest Regulations 
through this decision to allow us to review affirmative determinations 
of responsibility in all cases, including this one.  For more than 20 
years, our Office has declined to review affirmative determinations of 
responsibility except in limited circumstances because such 
determinations are based in large measure on subjective judgements 
which generally are not readily susceptible of reasoned review.  
Because the burden upon the protester of showing that the contracting 
officer acted arbitrarily is so high, we concluded that no significant 
purpose would be served by our review of these matters absent the 
circumstances set forth in our regulations.  See 4 C.F.R.  sec.  21.5(c); 
Yardney Elec. Corp., 54 Comp. Gen. 509 (1974), 74-2 CPD  para.  376; Central 
Metal Prods., Inc., 54 Comp. Gen. 66 (1974), 74-2 CPD  para.  64.  In the 
absence of any argument or evidence that the concerns underlying our 
regulation are now invalid, we see no basis to change our long and 
consistent precedent in this regard.

The request for reconsideration is denied.

Comptroller General
of the United States

1. The agency did not dispute that the second qualification was a 
definitive responsibility criterion, and our determination as to that 
matter is not at issue here.

2. In contract, requirements that firms be regularly engaged in a 
business for a specific period of time are definitive responsibility 
criteria.  See, e.g., Topley Realty Co., Inc., supra; Townsco 
Contracting Co., Inc., B-240289, Oct. 18, 1990, 90-2 CPD  para.  313; 
Calculus, Inc., B-228377.2, Dec. 7, 1987, 87-2 CPD  para.  558.

3. The cases cited by M&M are Westinghouse Air Brake Co., B-191537, 
Feb. 15, 1979, 79-1 CPD  para.  109 ("The bidder . . . shall not perform any 
field installation work but shall also have commitments that such 
field installation work be performed by a qualified contractor 
regularly engaged in railroad or rapid transit signal system 
installation work and who is skilled and experienced in performing 
field installation work on high speed railroad passenger or freight 
lines of a nature and quantity similar to that required to be 
performed under this contract, and who can meet all of the 
requirements for installation work on this contract") and Mosler 
Airmatic Sys. Div., B-187586, Jan. 21, 1977, 77-1 CPD  para.  42 ("The 
successful contractor shall make available to the U.S. Mint, proof of 
successful installations similar in nature").