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.