BNUMBER: B-277428.3
DATE: October 8, 1997
TITLE: R.L. Ridgell Construction, Inc., B-277428.3, October 8, 1997
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Matter of:R.L. Ridgell Construction, Inc.
File: B-277428.3
Date:October 8, 1997
Jeremy M. Griffin, Esq., Feith & Zell, P.C., for the protester.
David A. Hearne, Esq., Outland, Gray, O'Keefe and Hubbard, for C.B.C.
Enterprises, Inc., an intervenor.
Vicki O'Keefe, Esq., and Cynthia Guill, Esq., Department of the Navy,
for the agency.
Jeanne W. Isrin, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in preparation of the decision.
DIGEST
Protest that awardee failed to meet definitive responsibility criteria
before receiving award is denied where (1) under terms of
solicitation, one alleged criterion was in fact a performance
obligation that could be met after award; and (2) record indicates
that the other criterion was met prior to award.
DECISION
R.L. Ridgell Construction, Inc. protests the award of a contract to
C.B.C. Enterprises, Inc., under invitation for bids (IFB) No.
N62477-97-B-3017, issued by the Department of the Navy for an
extension to the fiber optic distribution network at the Naval Air
Station Patuxent River and Webster Field Annex, St. Inigoes, Maryland.
Ridgell argues that C.B.C. was improperly found responsible because it
failed to meet definitive responsibility criteria in the IFB.
We deny the protest.
The IFB contained the following relevant provisions:
1.4.2 Installer Qualifications
Before installation, submit data documenting each installer's
experience and qualifications as specified in the following
paragraph.
1.4.2.1 Certification
The installer of the tube cable shall hold a current Air Blown
Fiber sub-license agreement from the tube cable manufacturer
before proceeding with the installation of the tube cable. Proof
of certification shall be provided to the government for approval
prior to contract award.
1.4.2.2 Evidence of Experience and Qualifications
Show that the installers who will perform the work have a minimum
of 2 years of experience successfully installing outside cable
plant systems of a type and design similar to that specified
herein. Include the names, locations, and points of contact for
at least two installations of a type and design similar to that
specified herein where the installer has installed such systems.
Indicate the type of each system, and certify that each system
has performed satisfactorily in the manner intended for a period
of not less than 12 months.
Ridgell maintains that C.B.C.'s bid did not show (1) that its
installer possesses the required minimum 2 years experience; and (2)
that the installer possesses a current Air Blown Fiber sub-license
agreement from the tube cable manufacturer. Ridgell concludes that
C.B.C.'s bid should have been rejected.
These arguments are without merit. First, the 2-year experience
requirement is not a definitive responsibility criterion or other
requirement that had to be met as a prerequisite to award. Paragraph
1.4.2.2 (which itself is silent as to when the required information
must be provided) falls under section 1.4 of the IFB, entitled
"INFORMATION REQUIRED OF THE CONTRACTOR," and under subsection 1.4.2,
which expressly states that data documenting the installer's
experience and qualifications is required only "before installation."
Given this language, C.B.C. was not required to submit the installer
information prior to award; rather, we consider the installer
experience provision to represent a performance obligation,
enforceable by the Navy in its administration of the contract. See
Southern Nevada Communications, B-241534, Feb. 11, 1991, 91-1 CPD para.
146 at 3. C.B.C.'s compliance with the provision is not for
consideration here, since we do not review matters of contract
administration as part of our bid protest function. Bid Protest
Regulations, 4 C.F.R. sec. 21.5(a) (1997); Paging Network of Washington,
Inc., B-274052, Aug. 13, 1996, 96-2 CPD para. 63 at 2.
Ridgell cites paragraph 6 of the IFB's Instructions to Bidders in
support of its position that installer experience information was to
be submitted prior to award. However, the plain language of the
paragraph does not support Ridgell's argument. The paragraph states
that:
Before a bid is considered for award, the bidder may be requested
by the Government to submit a statement regarding his previous
experience in performing comparable work, his business and
technical organization, financial resources, and plant available
to be used in performing the work.
The paragraph nowhere purports to establish a pre-award submission
requirement for the specific installer experience and qualifications
information required under the other IFB sections. Indeed, the word
"may" in the first line indicates that paragraph 6 was not intended to
establish a requirement at all. Rather, the paragraph apparently is
aimed at the possible need to obtain general responsibility
information regarding the bidder.
It does appear, as Ridgell asserts, that the sub-license certification
requirement in paragraph 1.4.2.1 established a definitive
responsibility criterion that C.B.C. had to meet before award. The
record shows that C.B.C. provided contracting officials with a copy of
the sub-license certification of its intended installer subcontractor,
Aidco, Inc., on August 6, 6 days prior to award. Ridgell argues that
this did not suffice to meet the requirement because there was no
subcontract agreement between C.B.C. and Aidco prior to award.
However, since the IFB did not require such a contractual arrangement
prior to award, and did not require documentation of the legal
relationship of the bidder and its intended installer, this fact had
no effect on C.B.C.'s compliance with the requirement.
The protest is denied.
Comptroller General
of the United States