TITLE: Specialty Marine, Inc., B-292053, May 19, 2003
BNUMBER: B-292053
DATE: May 19, 2003
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Specialty Marine, Inc., B-292053, May 19, 2003
Decision
Matter of: Specialty Marine, Inc.
File: B-292053
Date: May 19, 2003
Robert E. Korroch, Esq., Williams Mullen Clark & Dobbins, for the
protester.
Scott Garner, Esq., Military Sealift Command, and Kenneth Dobbs, Esq.,
Small Business Administration, for the agencies.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly rejected protester's quotation based on protester's
failure to hold an Agreement for Boat Repair (ABR), where presolicitation
synopsis put potential vendors on notice that ABR was a precondition to
receiving award.
DECISION
Specialty Marine, Inc. protests the award of a contract to AEPCO under
request for quotations (RFQ) No. N2105130275001, issued by the Military
Sealift Command (MSC), Department of the Navy, for pre-deployment
maintenance and repair of the USNS MOHAWK. Specialty, a small business,
principally argues that MSC's rejection of its quotation amounted to a
finding of nonresponsibility that the agency improperly failed to refer to
the Small Business Administration (SBA) for review under its certificate
of competency (COC) procedures.
We deny the protest.
The agency synopsized the requirement at the Governmentwide Point of Entry
on the Internet on January 29, 2003. The synopsis specified that the
requirement was open only to holders of an Agreement for Boat Repair
(ABR),[1] and provided two contacts from which further information and the
bid package could be requested. The notice also indicated that quotations
were due on February 6. On February 7, the agency awarded a contract to
AEPCO. Specialty was notified that its quotation was not considered
because Specialty did not hold and was not seeking an ABR.
Specialty asserts that the solicitation it received did not indicate that
it was restricted to ABR holders, and that MSC could not reject its
quotation for failing to meet an unstated requirement. The agency
responds that Specialty should have been aware from the synopsis that the
solicitation was open only to ABR holders. Specialty further argues that,
in any case, the requirement is unnecessary, and is therefore unduly
restrictive of competition.
The ABR was not an unstated requirement. As noted above, the agency
published the requirement on the Internet at the Governmentwide Point of
Entry in a synopsis that specifically provided that the solicitation was
open only to ABR holders. This announcement was sufficient to put
Specialty on notice of the restriction, and to constitute a requirement
that offerors needed to meet. See Digicomp Research Corp., B-262139, Dec.
1, 1995, 95-2 CPD P: 246 at 7. This is the case even if, as Specialty
asserts, it never saw the notice; prospective contractors are on
constructive notice of the contents of procurement announcements. Id.
This being the case, Specialty's protest that the restriction unduly
restricts competition is untimely, since it involves an apparent
impropriety on the face of the solicitation and was filed after the
closing date for the receipt of quotations. 4 C.F.R. S: 21.2(a)(1)
(2003); Navigation Servs. Corp., B-255241, Feb. 10, 1994, 94-1 CPD P: 99
at 3.
Specialty argues that the requirement for an ABR was a responsibility
criterion, and that MSC's rejection of its quotation amounted to a
nonresponsibility determination. Since Specialty is a small business, it
claims that MSC's determination had to be referred to SBA for a COC
review.
Responsibility is a term used to describe an offeror's ability to meet its
contract obligations. See generally Federal Acquisition Regulation (FAR)
subpart 9.1. In most cases, responsibility is determined on the basis of
general criteria such as adequacy of financial resources, ability to meet
delivery schedules, and a satisfactory record of past performance. FAR S:
9.104-1. In some cases, however, an agency will include in a solicitation
a special standard of responsibility, which is often referred to as a
definitive responsibility criterion. Such criteria are specific and
objective standards established by an agency as a precondition to award,
which are designed to measure a prospective contractor's ability to
perform the contract. FAR S: 9.104-2; The Mary Kathleen Collins Trust,
B-261019.2, Sept. 29, 1995, 96-1 CPD P: 164 at 3.
Generally, the contracting agency determines in the first instance whether
a business is responsible, and a business that is found not responsible is
not eligible for award. However, where a small business is concerned, the
agency must refer any nonresponsibility determination to SBA under its COC
procedures; SBA has the authority to review an agency's negative
determination of responsibility and to finally determine the small
business concern's responsibility by issuing or refusing to issue a COC.
Deval Corp., B-272001, Aug. 14. 1996, 96-2 CPD P: 67 at 3. This is true
even where compliance with a definitive responsibility criterion is at
issue. The Mary Kathleen Collins Trust, supra, at 3.
Both MSC and SBA (we requested SBA's views in connection with the protest)
take the position that the ABR requirement is a prequalification, such
that vendors were required to hold or to have applied for an ABR in order
to be eligible for award. In support of this view, the agencies cite our
decision Stevens Tech. Servs., Inc., B‑250515.2 et al., May 17,
1993, 93-1 CPD P: 385 at 7, where we found that an offeror was not
eligible to receive an award where it did not hold, and had not applied
for, a required ABR. Id. at 3-4 n. 4. However, our prior decision and
the agencies' view notwithstanding, as we assess the nature of the ABR
requirement in this case, we are more inclined to adopt the protester's
view, since the requirement possesses all of the principal characteristics
of a definitive responsibility criterion--it concerns the capability of
the offeror, not a specific product, and is an objective standard
established by the agency as a precondition to award. It is not
clear--and neither agency explains--why a firm's failure to apply for an
ABR should change the essential nature of a requirement from one
concerning responsibility.
However, under the circumstances here, we need not decide whether the ABR
is a definitive responsibility criterion. In this regard, as noted above,
it is SBA's view that an ABR requirement is not a responsibility matter
that falls within its COC process. Whether or not we ultimately agreed
with SBA, in similar situations where SBA has declined to consider a
matter on the basis that it is not appropriate for review under its COC
procedures, we will review the agency's determination instead. Wallace &
Wallace, Inc., Wallace & Wallace Fuel Oil, Inc.--Recon., B-209859.2,
B‑209860.2, July 29, 1983, 83-2 CPD P: 142 at 2. Thus, even if we
determined that the ABR requirement here is a definitive responsibility
criterion, given SBA's position we would review the agency's determination
that Specialty did not meet the requirement. Turning to the merits, since
an ABR was required, and Specialty does not hold and did not apply for an
ABR, the agency properly rejected Specialty's quotation, whether or not
the requirement was a definitive responsibility criterion.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] MSC maintains a qualification program under which ship repair
contractors enter into advanced agreements that establish that the
contractor has a specified level of ship repair capability and contains
certain clauses and conditions applicable to contracts issued under the
agreements. Agency Report at 5. There are two types of agreement that
are used, depending upon the nature and complexity of the work the
contractor is qualified to perform--an ABR, as here, and a Master Ship
Repair Agreement.