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."