TITLE:  Graves Construction, Inc., B-294032, June 29, 2004
BNUMBER:  B-294032
DATE:  June 29, 2004
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   Decision

    

    

   Matter of:   Graves Construction, Inc.

    

   File:            B-294032

    

   Date:              June 29, 2004

    

   William E. Guy for the protester.

   Joseph A. Lenhard, Esq., Department of Energy, for the agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

    

   1.  Solicitation provision calling on *contractor* to have specified state
license establishes a general performance requirement, not a prerequisite
for award.

    

   2.  Although agency failed to verify whether proposed awardee was
registered in Central Contractor Registration (CCR) database prior to
award as required by solicitation, protester was not prejudiced as a
result given that, even if agency had been aware of the awardee*s lack of
registration prior to award, the Federal Acquisition Regulation expressly
allows contracting agency to delay award until after the awardee has
registered in the CCR database, and the record shows that the awardee in
fact did register in the CCR database shortly after award.

   DECISION

    

   Graves Construction, Inc. protests the award of a contract to The Krog
Corporation under request for proposals (RFP) No. DE-RP09-03SR22262,
issued by the Department of Energy (DOE) for the construction of a
steel‑reinforced, concrete vault structure known as Glass Waste
Storage Building No. 2 in Aiken, South Carolina. Graves contends that Krog
was not eligible for award because, at the time of award, Krog was not a
licensed contractor in South Carolina and was not registered in the
Central Contractor Registration (CCR) database. The protester also
contends that Krog is not a qualified small business concern because of
Krog*s alleged improper affiliation with its large business teaming
partner, and further maintains that the agency has acted in bad faith in
various respects.
    

   We deny the protest.

    

   The agency issued the subject solicitation on August 13, 2003 as a small
business set-aside for the Glass Waste Storage Building No. 2 project,
which required the *design, construction and acceptance testing of a
facility for interim storage of [High Level Waste] glass canisters* at a
site located in Aiken, South Carolina.  RFP S: C.3. 

    

   As it relates to this protest, the RFP stated that *Contractors shall be
licensed in South Carolina* in accordance with *South Carolina Code of
Laws, Title 40,
Chapter 11.*  RFP attach. J.5 I.  In addition, the RFP incorporated
various Federal Acquisition Regulation (FAR) clauses by reference,
including FAR S: 52.204‑7 *Central Contractor Registration,* which
states in relevant part:  *By submission of an offer, the offeror
acknowledges the requirement that a prospective awardee shall be
registered in the CCR database prior to award . . . .*  FAR S:
52.204-7(b)(1).

    

   Four proposals were received by the RFP*s closing date and award was
ultimately made to Krog on March 29, 2004.  On April 8, Graves filed an
agency-level protest, which the agency dismissed on April 22.[1]  Graves
filed the instant protest on May 3, essentially raising the same issues it
had raised in its agency protest.  Principally, Graves contends that
Krog*s proposal should have been rejected as unacceptable because it did
not satisfy the South Carolina licensing requirement quoted above and
because Krog was not registered in the CCR database prior to award as
required by FAR S: 52.204-7(b)(1).[2] 

    

   Contrary to the protester*s interpretation of the solicitation, compliance
with the South Carolina license requirement was not a prerequisite for
award.  Rather, the solicitation merely required the *contractor* to be
licensed in South Carolina.  In this regard, the use of the term
*contractor* generally indicates that the licensing requirement is a
general performance requirement to be addressed by the successful awardee,
post-award.  Buckeye Park Servs., Inc., B-282282, Apr. 27, 1999, 99-1 CPD
P: 88 at 2.  Thus, the argument that the license requirement rendered
Krog*s proposal unacceptable is without merit.

    

   With regard to the protester*s argument that Krog was ineligible for award
because it was not registered in the CCR database at the time of award,
Graves has failed to establish that it was prejudiced by this error. 
Competitive prejudice is necessary before we will sustain a protest; where
the record does not demonstrate that the protester would have had a
reasonable chance of receiving award but for the agency*s actions, we will
not sustain a protest, even if deficiencies in the procurement process are
found.  Leisure-Lift, Inc., B-291878.3, B-292448.2, Sept. 28, 2003, 2003
CPD P: 189 at 10; Statistica v. Christopher, 102 F.3d 1577, 1581 (Fed.
Cir. 1996).

    

   Here, the agency admits that it failed to verify whether Krog was
registered in the CCR database prior to making award on March 29.  Upon
learning that Krog was not registered, the contracting officer instructed
Krog to register in the CCR database and Krog promptly complied by April
13.  DOE maintains, however, that Krog would have received the award in
any event because had it known that Krog was not registered, the agency
simply would have delayed the award to allow Krog to register, as
authorized by FAR S: 4.1103(c)(1), which expressly provides that a
contracting officer can delay award until *after the apparently successful
offeror has registered in the CCR database.* [3]  Since Krog would have
received the award despite the misstep concerning the timing of Krog*s
registration in the CCR database, Graves has failed to establish that it
was prejudiced by this error. 

    

   Graves also alleges that the agency has acted in bad faith as evidenced by
the agency*s failure to address the various concerns raised in its
protests; by the fact that the contracting officer discussed with Graves
the possibility of paying its bid and proposal costs in return for Graves
waiving potential claims; and by DOE*s failure to disclose certain
information in connection with a Freedom of Information Act request. 
Government officials are presumed to act in good faith and, where a
protester contends that contracting officials are motivated by bias or bad
faith, it must provide convincing proof, since our Office will not
attribute unfair or prejudicial motives to procurement officials on the
basis of inference or

   suppositions.  American Artisan Prods., Inc., B-292559, B-292559.2, Oct.
7, 2003,
2003 CPD P: 176 at 9.  Here, other than innuendo, Graves has provided no
support for its bad faith allegation.

    

   The protest is denied.

    

   Anthony H. Gamboa

   General Counsel

    

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

   [1] DOE dismissed the agency-level protest on the ground that it was filed
by Graves Environmental and Geotechnical Services, Inc., not Graves
Construction, Inc., the actual offeror.  DOE sought dismissal of the
instant protest arguing that because Graves Construction, Inc. never filed
a timely agency-level protest, its protest to our Office was untimely
under our Bid Protest Regulations.  We denied DOE*s request for dismissal
because the agency-level protest was at most unclear regarding the
identity of the protester, given that it referenced both Graves
Construction and Graves Environmental.  We concluded that for purposes of
determining the timeliness of the subject protest, Graves Construction had
filed a timely agency-level protest and therefore a timely protest to our
Office.  See Bid Protest Regulations, 4 C.F.R. S: 21.2(a)(3) (2004). 

   [2] Graves also challenges Krog*s status as a small business concern,
suggesting that it is improperly affiliated with and controlled by a large
business concern.  We will not consider this contention because a
challenge of a firm*s size status is exclusively for review by the Small
Business Administration (SBA), not our Office.  4 C.F.R.
S: 21.5(b)(1).  We note that Graves had raised this issue in its
agency-level protest and asked the agency to forward the issue to the
SBA.  On April 15, the agency referred the matter to the SBA for review
and the SBA dismissed the size challenge as untimely.

   [3] The agency further notes that Graves itself was not registered in the
CCR database at the time it made award and did not complete its
registration until April 8, the date of its agency-level protest.