TITLE:  Universal Marine & Industrial Services, Inc., B-292964, December 23, 2003
BNUMBER:  B-292964
DATE:  December 23, 2003
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Universal Marine & Industrial Services, Inc., B-292964, December 23, 2003

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   Universal Marine & Industrial Services, Inc.
    
File:            B-292964
    
Date:              December 23, 2003
    
Jeffrey A. Lovitky, Esq., for the protester.
Jeannie Wallace Thorn for Wallace Fabrication L.L.C., an intervenor.
Talbot J. Nicholas II, Esq., Department of Homeland Security, U.S. Coast
Guard, for the agency.
Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protest challenging agency*s affirmative determination of awardee*s
responsibility is denied where record does not support allegation that
contracting officer failed to consider available relevant information, and
there is no showing of a violation of statute or regulation.
DECISION
    

   Universal Marine & Industrial Services, Inc. protests the award of a
contract to Wallace Fabrication L.L.C. under invitation for bids (IFB) No.
DTCG23-03-B-TCB014, issued by the Department of Homeland Security, U.S.
Coast Guard, for steel ocean buoys.Universal principally asserts that the
agency improperly determined that Wallace was a responsible prospective
contractor.
    

   We deny the protest.
    
The IFB, issued on July 8, 2003 as a small business set-aside, provided
for the award of a requirements contract for a base year, with four 1-year
options.  The agency received 11 bids, including Universal*s (the
incumbent contractor) and Wallace*s.  Wallace*s bid was low at
$10,972,440, and Universal*s was second low at $12,168,849.
    
On September 16, the agency conducted a preaward survey at Wallace*s
leased facility on Middle Road in Mobile, Alabama to determine the firm*s
responsibility.  The contracting officer completed a *Determination on
Prospective Contractor Responsibility* form for Wallace, indicating that
the agency had conducted an on-site preaward survey, and found that
Wallace was satisfactory on all relevant factors, including, for example,
technical and production capability, equipment and facilities, performance
record, quality assurance procedures, financial capability and ability to
meet delivery or performance dates.  Agency Report (AR), Tab 3,
Determination of Prospective Contractor Responsibility, at 1.  Based on
these findings, the agency determined that Wallace was responsible and
awarded the contract to Wallace on September 30. 
    
Universal alleges that the Coast Guard made an improper affirmative
determination of responsibility with respect to Wallace.  Citing a Dunn
and Bradstreet report, the protester argues that the awardee has no
manufacturing facilities but operates out of the residence of the owner,
has no published telephone number, has no financial statements and a high
credit balance of only $500, and has only 1 employee.  Protest at 2;
Protest, Exhibit 1, Dunn & Bradstreet Report, Oct. 1, 2003, at 1-5. 
Additionally, the protester asserts that Wallace was not established until
July 2003, and has no prior sales.  Protest at 2.  The protester argues
that it is *impossible to fathom* that the general standards of
responsibility can be satisfied by a company with no facilities, one
employee, and no prior sales.[1]  Id. at 3. 
    
Because the determination that an offeror is capable of performing a
contract is largely committed to the contracting officer*s discretion, our
Office generally will not consider a protest challenging an affirmative
determination of responsibility, except under limited exceptions.  Bid
Protest Regulations, 4 C.F.R. S: 21.5(c) (2003).  We recently revised our
Regulations in this regard to add as a specified exception protests *that
identify evidence raising serious concerns that, in reaching a particular
responsibility determination, the contracting officer unreasonably failed
to consider available relevant information or otherwise violated statute
or regulation.*  Id.  We explained in the preamble to the revision that it
was *intended to encompass protests where, for example, the protest
includes specific evidence that the contracting officer may have ignored
information that, by its nature, would be expected to have a strong
bearing on whether the awardee should be found responsible.  67 Fed. Reg.
79,833, 79,834 (2002); Verestar Gov*t Servs. Group, B‑291854,
B-291854.2, Apr. 3, 2003, 2003 CPD P: 68 at 4.  While we initially found
that Universal*s protest was sufficient to satisfy the threshold
requirement that a protest raise serious concern that the contracting
officer may have failed to consider relevant responsibility information,
the record shows that the information cited by Universal is either
erroneous or was considered by the contracting officer. 
    
First, the record, as reflected in the preaward survey documentation,
shows that Wallace was not working out of a private residence, but out of
a fabrication facility.  In this regard, the preaward survey team toured
Wallace*s current leased facility, a 6,000 square foot fabrication shop
located on 7 acres on Middle Road, as well as a 73,000 square foot
facility on 11 acres that the owners planned to lease or purchase.  AR,
Tab 2, Contracting Officer*s Statement, at 1-2; AR, Tab 4, Preaward
Survey, at 1.  The survey report noted that Wallace had been granted
approval to lease the larger facility until the owners could obtain a
loan, but specifically stated that the current facility was large enough
to fabricate the buoys.  AR, Tab 4, Preaward Survey, at 1.    Further, the
contracting officer states that during the survey it *was noted that
Wallace Fabrication has three telephone lines and a fax number.*  AR, Tab
2, Contracting Officer*s Statement, at 2.
    
As for Wallace*s alleged lack of financial statements and resources, the
contracting officer states that she contacted Wallace*s financial
institution on September 25 and was told by a representative there that
Wallace *was in good standing . . . .*  AR, Tab 2, Contracting Officer*s
Statement, at 1.  Further, in verifying Wallace*s small business status,
the contracting officer received from a Small Business Development Center
(SBDC) representative a verbal confirmation of its view that Wallace had
ability to rent, purchase, or otherwise acquire the needed facilities,
equipment, and personnel.  Id. at 1.
    
While Universal asserts that Wallace has only one employee, the record
shows that Wallace submitted four resumes to agency personnel at the
preaward survey and that these four individuals *participated in the
pre-award survey interview meeting,* which the agency interpreted as
demonstrating their intent to work for Wallace under the awarded
contract.  AR, Tab 2, Contracting Officer*s Statement, at 2.  The preaward
survey report included these resumes and noted that Wallace personnel
*involved in all facets of the buoy production are highly skilled and
qualified.*  AR, Tab 4, Preaward Survey, at 1.  Further, the contracting
officer states that, during the survey, Wallace indicated that it had a
list of potential production employees it could hire to perform the
contract, and that the agency believed *finding qualified industrial
personnel should not be a problem due to the large number of shipyards and
fabrication enterprises in the Mobile area.*  AR, Tab 2, Contracting
Officer*s Statement, at 2.  Finally, the report specifically referenced
the experience of the individuals who submitted resumes, noting, for
example, that one had almost 20 years of experience in welding and quality
assurance, and that another had been in welding fabrication for 24 years
and had been the production manager for the agency*s prior ocean buoy
contractor.  AR, Tab 4, Preaward Survey, at 1.  
    
The record also shows that the contracting officer was aware of, and
specifically considered, Wallace*s status as a new business entity, with
no prior sales.  In this regard, the preaward survey report notes that
Wallace was formed in July 2003, and that one of its officers had been an
owner of American Industrial Marine, but left that firm to form Wallace
with his wife.  AR, Tab 4, Preaward Survey, at 1.  In lieu of considering
prior sales, the contracting officer found that a past performance review
indicated that Wallace was satisfactorily managing the overhaul of a U.S.
Coast Guard cutter, and that the vice president of Wallace had
successfully managed the pier-side overhaul of another Coast Guard
cutter.  AR, Tab 2, Contracting Officer*s Statement, at 1-2.  Wallace*s
performance was considered satisfactory in regard to quality, cost
control, timeliness and business relationships and Wallace had a
satisfactory record of integrity and business ethics.  Id. at 2.  The
contracting officer also notes that Wallace, as a newly-established
business, would not be expected to have financial statements available. 
Id. at 2.
    
In sum, the record establishes that the contracting officer had before her
the information that Universal asserts she failed to consider, and it is
clear that she considered the significance of this information in
conjunction with other information she obtained in determining that
Wallace was responsible.[2]
    
In response to the agency*s report on the protest (and a subsequent
supplemental report), Universal has raised additional concerns about
Wallace*s financial status, its facility and its employees.  For example,
Universal argues that Wallace has no firm commitment to hire additional
employees, that the agency did not reveal the identity of Wallace*s
financial institution, and that Wallace uses the telephone number of
American.  Protester*s Comments at 3-5; Supplemental Comments, Nov. 19,
2003, at 1-2.  The protester*s continuing arguments essentially challenge
the sufficiency of the evidence on which the agency based its
determination, and of the investigation the agency performed.  We find
nothing unreasonable in the agency*s investigation or conclusions.  The
agency was fully aware of the issues surrounding Wallace*s ability to
perform the contract, and obtained evidence through the preaward survey
that addressed each of those concerns.  The failure to investigate further
does not give
rise to a serious concern that the contracting officer unreasonably failed
to consider available relevant information or otherwise violated statute
or regulation. 
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] In this regard, the Federal Acquisition Regulation (FAR) S: 9.104-1
sets forth seven *general standards* of responsibility, including having
adequate financial resources; being able to meet delivery or performance
schedules; having a satisfactory performance record; having a satisfactory
record of integrity and business ethics; having the necessary
organization, experience, accounting and operational controls, and
technical skills or the ability to obtain them; having the necessary
production and technical equipment and facilities or the ability to obtain
them; and being otherwise qualified and eligible to receive an award.
[2] For example, in addition to the information noted above, the record
shows that members of the preaward survey team also viewed the equipment
at Wallace*s leased Middle Road site and were provided a two-page
equipment list.  AR, Tab 4, Preaward Survey, Equipment List.  The
equipment was professionally valued at over $200,000.  Supplemental Agency
Report, Tab 21, Appraisal of Machinery and Equipment.