BNUMBER: B-274933.2; B-274933.5; B-274933.6
DATE: January 16, 1997
TITLE: 3DAV Development, Inc.; San Sebastian Shopping Center, S.E.
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Matter of:3DAV Development, Inc.; San Sebastian Shopping Center, S.E.
File: B-274933.2; B-274933.5; B-274933.6
Date:January 16, 1997
Charles E. DeWitt, Jr., Esq., and Daniel J. Moynihan III, Esq., for
3DAV Development, Inc.; and Jose M. Biaggi Landron, Esq., for San
Sebastian Shopping Center, S.E., for the protesters.
Douglas L. Fox, Esq., Shumway, Giguere, Byrne, Fox & Aloise, for
N.E.D.A. Development Corporation, the intervenor.
Jane S. Converse, Esq., Philip Kauffman, Esq., and Phillipa L.
Anderson, Esq., for the Department of Veterans Affairs, for the
agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Information relating to offerors' ability to perform contract is a
matter of responsibility and not related to the technical
acceptability of proposals and, even though solicitation required
submission of information with proposals, requirements that relate to
responsibility may be satisfied at any time prior to award.
DECISION
3DAV Development Inc. and San Sebastian Shopping Center (SSSC), S.E.
protest the award of a lease to N.E.D.A. Development Corporation under
solicitation for offers (SFO) No. 184B-02A-95, issued by the
Department of Veterans Affairs (VA) for an outpatient clinic in Ponce,
Puerto Rico. The protesters contend that award was improper because
N.E.D.A. did not include with its proposal evidence of site "ownership
or control" as required by the SFO.
We deny the protests.
At issue is section 3.21 of the SFO, entitled "EVIDENCE OF CAPABILITY
TO PERFORM PRIOR TO AWARD," which called for offerors to include with
their proposals certain information, including "evidence of ownership
or control of [the] site" proposed. In response, N.E.D.A. submitted a
letter, written in Spanish, from the "Administracion de Terrenos,
Estado Libre Asociado de Puerto Rico," (hereinafter the Land
Administration). The letter references "Lot #37 Multedo Estrella
Land, Ponce, P.R., V.A. Outpatient Clinic," the tract of land where
N.E.D.A. offered to construct a new building. To that document,
N.E.D.A. attached what it described as an English translation of the
Land Administration's letter.[1]
The protesters contend that N.E.D.A.'s letter is not sufficient
evidence of ownership or control of the site it proposed and, as such,
the VA should have rejected N.E.D.A.'s proposal as technically
unacceptable.
We disagree with the protesters' premise that compliance with the
SFO's "ownership or control" provision concerns the acceptability of
N.E.D.A.'s proposal. Ownership or control of the proposed site was
not listed in the SFO as a selection criterion or evaluation factor.
In this regard, this case is distinguishable from W.D.C. Realty Corp.,
66 Comp. Gen. 302 (1987), 87-1 CPD para. 248, where the solicitation
stated that, for evaluation purposes, certain technical data were
"required as a minimum submission for consideration" of proposals,
including "evidence of site ownership or access to ownership through
held options." In that case, since the solicitation specifically
stated that this information was required as a precondition for
considering the proposals for award, we concluded that the requirement
was related to the technical acceptability of proposals.
By contrast here, the SFO simply required offerors to submit evidence
of site ownership or control, along with other type of information
such as evidence of financial resources; construction team
qualifications, including licenses or certifications of the firms
providing architectural and engineering design services; and evidence
of compliance with local zoning laws. This information relates to the
ability of the successful offeror to perform the contract rather than
to whether the offer is acceptable and, therefore, is a matter of
responsibility. NFI Management Co., 69 Comp. Gen. 515 (1990), 90-1
CPD para. 548; SDA, Inc.--Recon., B-249386.2, Aug. 26, 1992, 92-2 CPD para.
128. In fact, the SFO warned that "FAILURE TO MEET ANY OR ALL OF THE
REQUIREMENTS SET FORTH IN PARAGRAPH [3.21] . . . SHALL BE A BASIS FOR
A DETERMINATION OF NON-RESPONSIBILITY . . . ," indicating that the
agency intended to use the information submitted in response to
section 3.21 of the SFO to assess responsibility, and not as a
precondition to considering the proposals or to determine the
technical acceptability of proposals.
In awarding the lease to N.E.D.A., the agency necessarily determined
that the firm was a capable and responsible contractor. Mitel, Inc.,
B-270138, Jan. 17, 1996, 96-1 CPD para. 36 at 4. We will not review such
affirmative determinations of responsibility absent a showing of
possible bad faith on the part of government officials or that
definitive responsibility criteria in the solicitation were not met.
Bid Protest Regulations, sec. 21.5(c), 61 Fed. Reg. 39039, 39045 (1996)
(to be codified at 4 C.F.R. sec. 21.5(c)).
Although the protesters do not allege bad faith on the part of
government officials, they contend that the SFO's "ownership or
control" provision is a definitive responsibility criterion.
According to the protesters, since N.E.D.A. failed to meet that
criterion, the VA should have rejected its proposal.
A definitive criterion is an objective standard imposed by a
solicitation which must be satisfied as a prerequisite to determining
an offeror to be responsible. Here, the SFO required offerors to
submit evidence of ownership or control over the proposed site but did
not specify any particular type of information or documentation
necessary to satisfy the VA's concerns in this regard. As such, the
SFO left it up to the offerors to submit whatever information they
believed would satisfy the requirement and to the VA to determine if
what was submitted satisfied its concerns about ownership and control.
Thus, unlike in The Mary Kathleen Collins Trust, B-261019.2, Sept. 29,
1995, 96-1 CPD para. 164, where we found that a solicitation requirement
for a certification from the local authority concerning zoning of the
property in question constituted a definitive responsibility
criterion, here the SFO did not provide any objective standard or
impose any specific requirement on which the agency was to rely to
determine offeror compliance with the site ownership or control
provision. Accordingly, this record affords us no basis to conclude
that the VA ignored a definitive responsibility criterion in finding
N.E.D.A. to be responsible.
SSSC argues that the VA's determination that N.E.D.A. is a
responsible contractor was erroneously based on an intentional
"misrepresentation" in the letter N.E.D.A. submitted with its proposal
regarding its property rights in the site in question. In this
connection, both protesters have provided their own interpretation of
the Land Administration's original letter, which they claim is a more
accurate translation than the one N.E.D.A. provided with its proposal.
We think the record falls short of establishing that N.E.D.A.
"misrepresented" its ownership or control of the proposed site. At
most, what the record does show is that there is some disagreement
among the parties as to the precise meaning of the Land
Administration's original letter. The fact that the protesters
believe that the English translation which N.E.D.A. provided does not
accurately capture the original meaning does not mean that N.E.D.A.
"misrepresented" its property interests in the proposed site. In this
connection, the contracting officer has submitted a sworn affidavit
attesting that he, along with other VA officials, contacted the Land
Administration which confirmed that the letter N.E.D.A. submitted with
its proposal "is a confirmation of the Land Administration's intent to
sell [the proposed site] to [N.E.D.A.]. . . ." Thus, any question
that the VA may have had concerning N.E.D.A.'s property interests in
the proposed site was eliminated as a result of the contracting
officer's inquiry. Whether N.E.D.A.'s English translation accurately
reflects the meaning of the Land Administration's original letter, and
thus whether that letter constituted adequate evidence of site control
or ownership, is a matter encompassed by the contracting officer's
responsibility determination which we will not review. See Patterson
Pump Co., B-204694, Mar. 24, 1982, 82-1 CPD para. 279.
The protests are denied.
Comptroller General
of the United States
1. The English translation that N.E.D.A. submitted with its proposal
states:
"Your option for purchase request for the above referenced
[tract of land] was received and is [being] evaluated by
our Planning Office along with other similar requests.
As soon as the [VA] informs us who is authorized to
negotiate with this Administration we will proceed with
the requisites for the land."