BNUMBER:  B-277235.2 
DATE:  November 12, 1997
TITLE: MEI, Inc., B-277235.2, November 12, 1997
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Matter of:MEI, Inc.

File:     B-277235.2

Date:November 12, 1997

Conrad C. Ledoux, Esq., and Herman M. Braude, Esq., Braude & 
Margulies, P.C., for the protester.
Maj. Jonathan C. Guden and Col. Nicholas P. Retson, Department of the 
Army, 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

Protest that awardee does not meet solicitation's definitive 
responsibility criterion requiring proof of 5 years of experience for 
the type of work to be performed is sustained where record shows the 
contracting officer did not have adequate, objective evidence the 
bidder satisfied the criterion; contracting officer improperly 
considered qualifications of bidder's subcontractor in determining 
bidder's responsibility; and, in any event, contracting officer did 
not have adequate, objective evidence that the subcontractor satisfied 
the criterion on behalf of bidder. 

DECISION

MEI, Inc. protests the award of a contract to Solutions to 
Environmental Problems, Inc. (STEP) under invitation for bids (IFB) 
No. DABAT10-97-B-0008, issued by the Department of the Army for the 
inspection and repair of storm and sanitary sewer lines at Fort 
Benning, Georgia.  MEI argues that STEP does not meet the 
solicitation's definitive responsibility criterion and is thus 
ineligible for award.

We sustain the protest.

The successful bidder was to be awarded a fixed-price requirements 
contract to provide an array of services associated with the 
inspection and repair of storm and sanitary sewer lines.  The type of 
work to be performed includes sewer line cleaning; television 
inspection of sewer lines; testing, grouting, and retesting of 
joints; repair of point deficiencies; sliplining; pipe bursting and 
relining; manhole work; excavation, trenching, and backfilling; 
replacement of building service laterals; concrete and asphalt work; 
and site work.  Paragraph H.26 of the IFB required the contractor to 
"provide proof of (5 years) experience for the type of work to be 
performed under this contract . . . ."[1]

The Army received four bids by the June 4, 1997, bid opening.  STEP 
submitted the
apparent low bid of $5,641,861 and MEI submitted the apparent second 
low bid of $7,123,012.  On June 10, MEI filed a protest in this Office 
arguing that STEP did not have the experience required under paragraph 
H.26 of the IFB and thus had not met a definitive responsibility 
criterion and was ineligible for award.  MEI withdrew the protest 
pending the Army's final award determination and reinstated the 
protest after learning that award was made to STEP on September 5.  

The contracting officer's determination that STEP satisfied the 
requirements set forth in paragraph H.26 was based upon his review of 
promotional material, resumes, and prior contracts performed by both 
STEP and J.L. Young Enterprises, Inc., a firm identified after bid 
opening as STEP's subcontractor.  In its comments, MEI argues that 
this evidence was insufficient to show that STEP satisfied the 
definitive responsibility criterion in its own right; that the 
contracting officer improperly considered the qualifications of J.L. 
Young because there was no pre-award evidence of that firm's 
commitment to STEP's successful performance of the contract; and that, 
in any event, the evidence reviewed was insufficient to show that J.L. 
Young satisfied the criterion on STEP's behalf.  The Army declined the 
opportunity to rebut any portion of MEI's legally and factually 
detailed comments, which we conclude are supported by the record in 
every respect.

Definitive responsibility criteria are specific and objective 
standards designed to measure a prospective contractor's ability to 
perform the contract.  Such criteria, which must be met as a 
precondition to award, limit the class of contractors to those meeting 
specified qualitative and quantitative qualifications necessary for 
adequate performance, e.g., unusual expertise or specialized 
facilities.  Topley Realty Co., Inc., 65 Comp. Gen. 510, 512-513 
(1986), 86-1 CPD  para.  398 at 4.  There is no dispute that paragraph H.26, 
which requires the prospective contractor to have a specified number 
of years of experience in a particular area, is a definitive 
responsibility criterion.  

Where a protester alleges 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; 
generally, a contracting agency has broad discretion in determining 
whether bidders meet definitive responsibility criteria since the 
agency must bear the burden of any difficulties experienced in 
obtaining the required performance.  Prime Mortgage Corp., 69 Comp. 
Gen. 618, 620 (1990), 90-2 CPD  para.  48 at 3-4.  While the relative 
quality of the evidence is a matter within the contracting officer's 
judgment, the contracting officer may only find compliance with the 
definitive responsibility criterion based on adequate, objective 
evidence.
T. Warehouse Corp., B-248951, Oct. 9, 1992, 92-2 CPD  para.  235 at 5.  

The Army concedes, with ample support in the record, that STEP's 
qualifications were not sufficient for the firm to meet the criterion 
in its own right, and that the firm's compliance rests upon the 
experience of the subcontractor, J.L. Young.  We therefore turn our 
attention to the contracting officer's review of the evidence with 
respect to J.L. Young's qualifications.

As a general rule, the experience of a technically qualified 
subcontractor may be used to satisfy definitive responsibility 
criteria relating to experience for a prospective prime contractor.  
Tutor-Saliba Corp., Perini Corp., Buckley & Co., Inc., and O & G 
Indus., Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD  para.  223 
at 4-5.  In considering whether the experience of a third party 
subcontractor may be relied upon by a prime contractor to meet an 
experience criterion, we examine the record for evidence of a 
commitment by the third party to the bidder's successful performance 
of the work.  Id. at 6.  While identifying or otherwise referencing 
the third party in the bid documents is considered to be reliable 
(indeed, preferable) evidence of compliance with an experience 
criterion, since it constitutes a matter of responsibility, 
identification of the third party or evidence of a firm commitment 
between the third party and the prime bidder need not be present in 
the bid and may be submitted after bid opening.  Id.

It is undisputed that STEP's bid documents made no reference to J.L. 
Young or to any intention to utilize a subcontractor for this effort.  
On June 5, the day after bid opening, STEP sent a letter to J.L. Young 
stating that it had received the firm's bid for this project and that 
if STEP, the low bidder, was awarded the contract, "it [was] STEP's 
intention to enter into a similar contract with J.L. Young 
Enterprises, Inc. to assist STEP in the accomplishment of this work."  
The only communication from J.L. Young reviewed by the contracting 
officer is a July 10 letter addressed "To Whom It May Concern."  In 
the letter, J.L. Young states that it can successfully complete this 
project because, relevant here, its employees have the necessary 
technical expertise and experience.  The letter contains no reference 
to any intended relationship with STEP; indeed, it contains no 
reference to STEP at all.  

The Army asserts that the content of these two letters was sufficient 
to justify the contracting officer's consideration of J.L. Young's 
experience in making his responsibility determination.  MEI disagrees, 
arguing that the letters do not evidence a commitment by J.L. Young to 
STEP's successful performance of the work.  We agree.    

STEP's June 5 letter to J.L. Young evidences the bidder's intention to 
subcontract with the firm if awarded the contract, not the requisite 
commitment on the part of J.L. Young to STEP's successful performance 
of the contract.  Nor is this requisite commitment found in J.L. 
Young's July 10 letter, which is merely a statement of the firm's 
purported qualifications to perform this work.  Since the contracting 
officer had no pre-award evidence of any commitment on J.L. Young's 
part to STEP's successful performance of the contract--and, thus, no 
way to establish that STEP and, by extension, the Army, would reap the 
benefit of J.L. Young's experience--he could not properly consider 
J.L. Young's capabilities in making his responsibility determination.  
See Townsco Contracting Co., Inc., B-240289, Oct. 18, 1990, 90-2 CPD  para.  
313 at 6, aff'd, B-240289.2, Mar. 15, 1991, 91-1 CPD  para.  290.  

Even assuming that the contracting officer properly could consider 
J.L. Young's capabilities, our review of the record leads us to agree 
with MEI that the evidence of these capabilities--promotional 
materials, personnel resumes, and prior 
contracts--is insufficient to show that J.L. Young could satisfy the 
definitive responsibility criterion in STEP's stead.
 
The contracting officer's conclusion that J.L. Young has performed 
sewer repair and rehabilitation type projects and can provide 
closed-circuit television inspection, pressure grouting, internal line 
repair, joint testing, and other sewer/sanitary repair and 
rehabilitation services is derived, in part, from the firm's 
promotional materials.  Setting aside the fact that promotional 
materials are hardly objective evidence of a firm's capabilities, a 
firm's statement that it "can" perform various services is not 
evidence of its experience, the "proof" of which is required by 
paragraph H.26.

The contracting officer also reviewed three resumes submitted by J.L. 
Young and concluded that the firm employs personnel with "extensive" 
backgrounds in the sewer and sanitary field and that its proposed 
field superintendent performed similar projects at Fort Benning in 
1984 and 1991 while employed by Astor Bolden Enterprises.

The conclusion that these individuals have "extensive" backgrounds in 
the sewer and sanitary field is based upon general language found in 
each resume which characterizes the firm as a "construction and sewer 
rehabilitation company, focusing on utility and sewer rehabilitation 
projects," whose "[p]rojects include sewer line television inspection, 
cleaning, manhole repairs, slip lining, point repairs, etc."  These 
general assertions about the firm's experience are not accompanied by 
any objective information--such as the identification of particular 
projects--that would have allowed for verification, and shed little 
light on the qualifications of the individuals.  The resume of the 
proposed field superintendent indicates he has experience in this area 
with other firms, but the information is similarly general and 
unsupported.  Moreover, the contracting officer's statement that this 
person performed similar projects at Fort Benning in 1984 and 1991 
while employed by Astor is drawn not from objective evidence, but from 
J.L. Young's July 10 letter.[2]  There is no evidence that the 
contracting officer made any effort to obtain support for this 
assertion, despite the fact that these two projects were allegedly 
performed at Fort Benning itself.  In sum, these resumes simply cannot 
be said to provide the proof required by paragraph H.26.

The contracting officer also concluded that a survey of J.L. Young's 
prior contracts shows the firm has the experience required by 
paragraph H.26.  We disagree.

The contracting officer relied upon his review of four contracts, one 
each for golf course irrigation; installation of water line piping and 
fire hydrants; removal of old storm sewer piping and installation of 
new piping; and videotaping and clearing of sewer systems.  As MEI's 
unrebutted comments point out, there are no line items here for any 
task referenced under the former two contracts, and there is no 
evidence that the work is related to the type of work required here.  
The latter two contracts address some of the work to be performed 
here, but there is no indication that the firm obtained experience in 
the work encompassed by the majority of the line items here, such as 
those for joint testing and grouting, repair of point deficiencies, 
sliplining, and pipe bursting and relining.  At any rate, the oldest 
of these contracts was commenced less than 5 years ago, and the total 
duration of all of the contracts is far less than 5 years.  Even if 
the marginal evidentiary adequacy of the resumes is combined with the 
marginal evidentiary adequacy of the prior contracts, we believe there 
is insufficient objective evidence to show that J.L. Young's 
experience satisfied the requirements of paragraph H.26.

For the reasons above, we find that the contracting officer lacked 
objective evidence upon which he could reasonably find that STEP met 
the IFB's definitive responsibility criterion.  As a result, he should 
have found STEP nonresponsible.  We sustain the protest.  Since STEP 
is a small business, we recommend that the matter be referred to the 
Small Business Administration (SBA) for review under the certificate 
of competency procedures.  See The Mary Kathleen Collins Trust,
B-261019.2, Sept. 29, 1995, 96-1 CPD  para.  164 at 4 n.4.  If SBA does not 
certify that STEP is responsible, the contract should be awarded to 
MEI, if otherwise appropriate.  We also recommend that MEI be 
reimbursed its costs of filing and pursuing the protest, including 
reasonable attorneys' fees.  4 C.F.R.  sec.  21.8(d)(1) (1997).  MEI should 
submit its certified claim for costs to the Army within 60 days of 
receiving this decision.  4 C.F.R.  sec.  21.8(f)(1).

The protest is sustained.

Comptroller General
of the United States

1. In addition to the general responsibility determination and 
paragraph H.26, paragraph 1.4 of the project specifications for pipe 
bursting requires the contractor to have a minimum of 5 years 
experience in pipe bursting and to have completed at least two jobs of 
a similar nature. 

2. This person's resume also indicates that he was not employed by 
Astor in 1984.