TITLE: Aardvark Keith Moving
BNUMBER: B-290565
DATE: August 8, 2002
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Aardvark Keith Moving, Inc., B-290565, August 8, 2002
Decision
Matter of: Aardvark Keith Moving, Inc.
File: B-290565
Date: August 8, 2002
Theodore M. Bailey, Esq., and Johnathan M. Bailey, Esq., for the protester.
Kacie A. Haberly, Esq., General Services Administration, for the agency.
Linda S. Lebowitz, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency reasonably determined that the protester was ineligible for award
where information included as part of the protester's proposal indicated
that the protester was affiliated with a firm proposed for debarment.
DECISION
Aardvark Keith Moving, Inc. (AKMI) protests the decision of the General
Services Administration (GSA) to reject the firm as ineligible for award
under solicitation No. 3FNC-B3-003001-1 for comprehensive furniture
management services. AKMI argues that the agency improperly determined that
it was ineligible for award based on AKMI's affiliation with a firm proposed
for debarment.
We deny the protest.
AKMI, which was formed on May 21, 2001,[1] is a small disadvantaged business
owned by Ms. Robin Keith. In March 2002, AKMI submitted a proposal in
response to the referenced solicitation. As relevant here, AKMI's proposal
included a Dun and Bradstreet (D&B) report.[2] The D&B report, dated March
19, 2002, listed two names for AKMI--the primary name was "Keith Moving,
Inc." and the alternate name was "Aardvark Keith Moving." These two
entities had the same D&B reference number.[3] In addition, AKMI submitted
as part of its proposal nine favorable past performance references; however,
none of these references was for AKMI or Ms. Keith. Rather, six of the
references (one for 1989 and five for 1992) were for "Keith Moving Company";
one reference (for 1995) was addressed to "[Mr.] Chris Keith" (Ms. Keith's
brother); and two of the references (one for 1992 and one for 2000) were for
"Aardvark Keith Moving Company," a firm owned by Ms. Keith's father. On the
cover sheet to the AKMI references, AKMI represented that it had been in
business "since 1960."
During the evaluation, GSA discovered that "Keith Moving, Inc." and "Keith
Moving Company" were listed in a government database as firms excluded from
federal programs. GSA made further inquiries and found that the Air Force
had proposed these two firms for debarment on October 27, 1997, and that
these firms remain proposed for debarment.[4] While the Air Force advised
GSA that AKMI was not listed as a firm proposed for debarment and that Ms.
Keith was not proposed for debarment in her individual capacity (until 1994,
Ms. Keith was a vice?president of Keith Moving, Inc.), GSA nevertheless
concluded that since AKMI was listed in the D&B report as an alternate name
for Keith Moving, Inc. and since Keith Moving, Inc. was still proposed for
debarment, then AKMI's proposal should be rejected under this solicitation
based on AKMI's affiliation with Keith Moving, Inc.
AKMI maintains that it is not, and it has never been, affiliated with Keith
Moving, Inc. In this regard, AKMI argues that GSA unreasonably determined,
based upon incomplete or erroneous information reported by D&B, that AKMI
was affiliated with Keith Moving, Inc. and, therefore, was ineligible for
award. Protester's Comments, June 27, 2002, at 2.
Federal Acquisition Regulation (FAR) � 9.405(a) provides that contractors
debarred, suspended, or proposed for debarment are excluded from receiving
contracts. The term "contractors" is defined, for debarment purposes, to
include firms that submit proposals through affiliates. FAR � 9.403.
Concerning the term "affiliates," for debarment purposes, FAR � 9.403 states
that "[b]usiness concerns, organizations, or individuals are affiliates of
each other if, directly or indirectly, (1) either one controls or has the
power to control the other, or (2) a third party controls or has the power
to control both." FAR � 9.403 further states that "[i]ndicia of control
include, but are not limited to, interlocking management or ownership,
identity of interests among family members, . . . or a business entity
organized following the debarment, suspension, or proposed debarment of a
contractor which has the same or similar management, ownership, or principal
employees as the contractor that was debarred, suspended, or proposed for
debarment." We review an agency's determination of affiliation for
reasonableness. Detek, Inc., B-261678, Oct. 16, 1995, 95-2 CPD � 177 at 3.
Here, even if we assume, arguendo, that AKMI is not, and has never been,
affiliated with Keith Moving, Inc., AKMI provided no information in its
proposal to suggest that the D&B report, which reflected that AKMI was an
alternate name for Keith Moving, Inc., was inaccurate or otherwise
unreliable. On the contrary, at the time of the contemporaneous evaluation
of proposals, there was sufficient information in AKMI's proposal,
particularly when read in conjunction with information in the D&B report,
for GSA to reasonably conclude that AKMI was affiliated with Keith Moving,
Inc., a firm that had been proposed for debarment, thereby making AKMI
ineligible for award.
For example, AKMI, which had been in existence for approximately 10 months
at the time it submitted its proposal, and which apparently had no
meaningful past performance history of its own, submitted in its proposal
nine past performance references, each of which pre-dated AKMI's formation
and corresponded to a business entity or individual other than AKMI or Ms.
Keith. AKMI also represented on the cover sheet to its references that it
had been in business for over 40 years when, in fact, it had only been
incorporated for less than one year. Since AKMI did not explain in its
proposal the context for including this information, we believe that GSA
reasonably understood that the proposal information confirmed the
information reported by D&B, that is, that AKMI was affiliated with a
company and that it was relying on this affiliation to establish a record of
past performance.
In its comments on the agency's administrative report, AKMI explains for the
first time that it included in its proposal the above-noted past performance
references because they "referred to projects on which Ms. Keith had
personally worked [during her association with the firms commented upon by
the references] to demonstrate the breadth of experience which she brought
to AKMI when she formed th[is] company." Protester's Comments,
June 27, 2002, at 4.[5] In addition, Ms. Keith explains that she
"represented that AKMI had been in business since 1960 because
Aardvark-Keith Moving Company, which was owned and operated by [her] father,
was established in 1960 and while it [was] a separate and distinct entity
from AKMI, AKMI [did] have the benefit of [her] father's years of
experience." Affidavit of Ms. Keith, June 27, 2002. However, AKMI failed
to provide in its proposal such information, which in hindsight might be
characterized as countervailing to what was reported by D&B. As a result,
AKMI must suffer the consequences of its failure to do so, that being GSA's
decision, based on information reported by D&B and information in AKMI's
proposal, to reject the firm as ineligible for award based on an affiliation
with a firm proposed for debarment. See, e.g., Chek F. Tan & Co., B?277163,
Sept. 8, 1997, 97-2 CPD � 66 at 5.[6]
On this record, we have no basis to question the reasonableness of the
agency's contemporaneous determination that AKMI was ineligible for
award.[7]
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] The corporate record from the Office of the Secretary of the State of
Texas, which AKMI attached to its protest, shows that the firm was
incorporated on this date.
[2] D&B is an independent reporting service that makes its reports available
to the public for evaluating the financial positions of companies. The
solicitation required that each offeror, prior to the submission of its
proposal, request that D&B complete a past performance evaluation report for
the firm. (The past performance assessment for AKMI contained in the D&B
report is not at issue in this protest.) The D&B report completed for AKMI
was sent directly to GSA to be included as part of AKMI's proposal.
[3] The D&B report showed that Keith Moving, Inc. came into existence in
1962; the protester states that Keith Moving, Inc. was formed in June 1989
and became inactive in February 1998.
[4] The Air Force reported that Mr. Chris Keith was debarred in his
individual capacity for one year from January 23, 1998 to January 22, 1999.
[5] Throughout its various submissions filed in this protest, AKMI
inconsistently uses the names of the firms with which Ms. Keith had been
associated prior to her forming AKMI in 2001.
[6] To the extent AKMI contends that the agency could have taken steps to
confirm its corporate status, for example, by asking AKMI directly about any
possible affiliations or by checking Texas corporate registration records,
it was incumbent upon AKMI to provide this information in its proposal; it
was not the responsibility of GSA to independently investigate and verify
AKMI's corporate status.
[7] When a small business, like AKMI, is determined ineligible for award
based upon its affiliation with a firm proposed for debarment, this matter
does not require referral to the Small Business Administration for a
determination of the firm's responsibility under the certificate of
competency program. FAR � 19.602-1(a)(2)(ii); Detek, Inc., supra, at 2-3.