BNUMBER:  B-271750
DATE:  July 24, 1996
TITLE:  M&M Welding & Fabricators, Inc.

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

File:     B-271750

Date:July 24, 1996

Richard L. Moorhouse, Esq., Holland & Knight, for the protester.
William L. Ensign, Acting Architect of the Capitol, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Solicitation provision requiring bidders to be regularly engaged 
in the installation and service of coal/gas-fired boilers does not 
constitute a definitive responsibility criterion--since it does not 
set out a specific, objective standard for determining a bidder's 
capability to perform--but is a component of the contracting officer's 
affirmative determination of responsibility, and thus not for 
consideration by General Accounting Office.

2.  Protest that agency unreasonably determined that the awardee 
satisfied a definitive responsibility criterion is denied where the 
record supports the agency's determination that the bidder exhibited a 
level of achievement either equal to or in excess of the specific 
criterion.

DECISION

M&M Welding & Fabricators, Inc. protests 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, Washington, D.C.  M&M argues that the agency 
unreasonably determined that ACI satisfied the solicitation's 
definitive responsibility criteria. 

We deny the protest.

The boilers contain numerous water pipes which, over time, corrode, 
weaken, and leak.  The successful contractor here is required to 
investigate and determine the exact quantity of tubes required to 
"completely retube" the boiler; remove the existing tubes and replace 
them with new tubes; and perform various associated tasks.  The 
solicitation includes the following paragraph under the heading, 
"Qualification of Bidders": 

     "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. 
     . . . "

ACI's bid of $920,000 was the lowest priced of the 10 bids received.  
After contacting ACI's references, the agency determined that the firm 
met the IFB's qualifications and awarded ACI the contract.  M&M's 
agency-level protest was denied, and the firm filed the instant 
protest in our Office.[1]

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.

In its report to our Office, the agency took the position that the 
IFB's qualification provision contained two definitive responsibility 
criteria:  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 subsequently 
shifted its view, and now maintains that the first component of the 
qualification provision--regular engagement in the installation and 
service of coal/gas-fired boilers--is not a definitive responsibility 
criterion because it is not a specific and objective standard.  The 
agency does not dispute that the second component of the qualification 
is a definitive responsibility criterion.

The agency is correct.  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]  Repco, Inc., 
B-225496.3, Sept. 18, 1987, 87-2 CPD  para.  272.  Since we will not review 
a contracting officer's affirmative responsibility determination 
absent circumstances not present here, 4 C.F.R.  sec.  21.5(c), we will not 
consider M&M's allegations with respect to this aspect of the 
qualification provision.

As the agency acknowledges, the second element of the qualification 
provision--completion of three similar boiler rehabilitation 
projects--is a definitive responsibility criterion since it sets out a 
specific and objective standard for measuring a bidder's ability to 
perform.  See Gelco Servs., Inc., B-253376, Sept. 14, 1993, 93-2 CPD  para.  
163.  M&M argues that one of ACI's listed projects, in which it 
field-erected a boiler, is not a similar boiler rehabilitation project 
and, thus, that the firm is ineligible for award.[3]

A contracting agency has broad discretion in making responsibility 
determinations, including whether bidders meet definitive 
responsibility criteria, since the agency must bear the brunt of any 
difficulties experienced in obtaining the required performance.   
Prime Mortgage Corp., 69 Comp. Gen. 618 (1990), 90-2 CPD  para.  48.  
Nevertheless, the agency must obtain evidence that a bidder meets the 
criteria so that compliance with the requirement, which is a 
prerequisite to award, can be determined.  Id.  Where an allegation is 
made that a definitive responsibility criterion has not been 
satisfied, we will review the record to ascertain whether evidence of 
compliance has been submitted from which the contracting officer 
reasonably could conclude that the criterion has been met.  BBC Brown 
Boveri, Inc., B-227903, Sept. 28, 1987, 87-2 CPD  para.  309.  

The agency concedes that ACI's experience with this field erection, 
documented in the chief engineer's evaluation memorandum, may not meet 
the letter of the criterion.  However, the agency contends that field 
erection involves more exacting skills than those required by a boiler 
rehabilitation.  The agency explains that, in a simple boiler 
rehabilitation project like this one, the tubes are already in place, 
supported by the boiler's drums, and the tubes need only be removed 
and replaced with new tubes.  In contrast, a field-erection project 
requires the contractor to "start from scratch"--installing the drums 
to support the boiler tubes in the correct position and alignment, 
with the correct support; connecting various waterwall and 
steam-generating tubes and piping; and installing refractory 
insulation, casing, lagging, fans, flues, ducts, motors, burners, 
instrumentation, structural steel, and the stack.  The agency asserts 
that, since the work involved in a field erection includes the 
activities required here, but is more extensive, it considers ACI's 
field erection experience to exceed the requirements inherent in the 
criterion.

While definitive responsibility criteria establish a minimum standard 
which is a prerequisite to an affirmative determination of 
responsibility, there are situations where an offeror may not meet the 
specific letter of such criteria, but has clearly exhibited a level of 
achievement either equivalent to or in excess of the specified 
criteria, and thus properly may be considered to have satisfied the 
definitive responsibility criteria.  Unison Transformer Servs., Inc., 
68 Comp. Gen. 74 (1988), 88-2 CPD  para.  471.  The protester has shown that 
there are differences between a boiler rehabilitation and a field 
erection[4]--a field erection involves a new boiler which comes with 
labeled components made of new materials, some pre-assembled 
sub-assemblies, and instructions, while a boiler rehabilitation 
involves an old boiler and the contractor must, without instructions, 
determine which components must be replaced or repaired, and 
disassemble and reassemble various boiler sections using, in some 
cases, worn or outdated parts.  However, that these distinctions exist 
is not dispositive of whether the agency reasonably determined that 
the two experiences are equivalent under this solicitation.  The work 
called for by the IFB  principally requires the contractor to remove 
and replace the boiler's tubing, a skill clearly encompassed by a 
field erection.  Accordingly, we see no basis to object to the 
agency's acceptance of that experience on the ground that the skills 
involved are at least equivalent to those called for by the definitive 
responsibility criterion.      
Moreover, even if the field erection experience were discounted, we 
note that in connection with the other two listed projects ACI retubed 
seven separate boilers.  The agency contends that, since the purpose 
of the qualification criterion is to gauge experience, which is 
measured by individual boilers, it would consider ACI as having met 
the criterion by virtue of its having retubed seven different boilers.  
While M&M counters that the requirement contemplates evidence of 
experience on three separate contracts, not simply three different 
boilers, we think the agency's position is reasonable under the 
circumstances here.  

The protest is denied.

Comptroller General
of the United States

1. While the Architect of the Capitol is not a federal agency within 
the purview of our Bid Protest Regulations, 4 C.F.R.  sec.  21.5(g) (1996), 
the agency has nevertheless agreed to have our Office consider bid 
protests concerning its procurements.  50 Fed. Reg. 30,293 (July 25, 
1985).  In cases where, as here, the basic procurement statutes do not 
apply to a protested procurement, we review the actions taken by the 
agency to determine whether they were reasonable.  Kennedy & Assocs. 
Art Conservation, 68 Comp. Gen. 261 (1989), 89-1 CPD  para.  186.

2. In contrast, 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. M&M does not challenge the agency's determination as to ACI's other 
projects.  Initially, M&M did argue that the IFB required that the 
projects listed by the bidders involve "complete" retubing, and that 
two of the projects listed by ACI involved only partial retubing.  
While the agency disagrees with the protester's interpretation of the 
IFB, it also asserts that each of the three projects listed by ACI 
involved complete tubing.  M&M does not contest this assertion.

4. M&M continues to cast its argument in terms of whether or not a 
field erection is "similar" to a boiler rehabilitation project despite 
the agency's concession that ACI's project did not meet the letter of 
the criterion.  However, the issue here is whether the agency has 
reasonably determined that ACI's achievement with respect to the field 
erection is equivalent to or in excess of the criterion.