TITLE:  Transcontinental Enterprises, Inc., B-294765, November 30, 2004
BNUMBER:  B-294765
DATE:  November 30, 2004

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   Decision

   Matter of:   Transcontinental Enterprises, Inc.

   File:            B-294765

   Date: November 30, 2004

   Heath Carroll, Esq., Dixon, Doub, Conner & Foster, for the protester.

   Brian Koji, Esq., Allen, Norton & Blue, for Call Henry, Inc., an
intervenor.

   Anthony G. Beyer, Esq., Environmental Protection Agency, 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

   Protest challenging an agency's affirmative determination of the awardee's
responsibility on the ground that the contracting officer failed to
consider the fact that the awardee did not possess a North Carolina
unlimited general contractor's license at the time of award, and could not
likely obtain the required license in a timely manner, if at all, is
dismissed where the record shows that the license was not required to
perform most of the work called for under the solicitation, if any work at
all; thus, information regarding the awardee's ability to obtain the
license is not the type of information that would be expected to have a
strong bearing on the awardee's responsibility, and, as a result, an
allegation that the agency failed to consider such information is not
sufficient to trigger review by GAO of the agency's affirmative
responsibility determination.

   DECISION

   Transcontinental Enterprises, Inc. protests the agency's decision to award
a contract to Call Henry, Inc., pursuant to request for proposals (RFP)
No. PR-NC-03-10653, issued by the Environmental Protection Agency (EPA)
for facilities management and support services for its Research Triangle
Park, North Carolina, facilities.  The protester challenges the agency's
affirmative determination of Call Henry's responsibility.

   We dismiss the protest.

   On January 29, 2004, the agency issued the subject solicitation as a small
business set-aside for the provision of all facilities support services at
various EPA facilities located in the Research Triangle Park area of North
Carolina.  The RFP's statement of work set forth numerous specific
facilities support services requirements.[1]  In addition, as it relates
to this protest, the RFP, as amended, stated that '[t]he Contractor shall
possess a State of North Carolina unlimited general Contractor license and
shall establish and maintain a process for identifying, acquiring, and
maintaining records of all permits required for performance of the work. 
Permits shall be obtained from the City/County Building Inspector . . .
.'  RFP, Statement of Work, at 10. 

   By the March 4 due date for receipt of proposals, the agency had received
four proposals.  After setting a competitive range, which included the
offers of Transcontinental and Call Henry, holding discussions with the
remaining offerors, and evaluating revised proposals, the agency decided
to make award to Call Henry.  As part of the award decision, the agency
determined that Call Henry was a responsible firm, as required by Federal
Acquisition Regulation (FAR) S 9.103.  In making this determination the
agency considered Call Henry's financial resources, performance history,
representations and certifications, as well as its organization,
experience, and technical capability as reflected in its technical
proposal.  See Agency Report (AR) at 5.  Upon learning of the agency's
award decision, Transcontinental filed this protest challenging the
agency's affirmative responsibility determination with regard to Call
Henry.

   Transcontinental argues that the agency unreasonably found Call Henry
responsible because the agency failed to consider that Call Henry did not
possess a North Carolina unlimited general contractor's license at the
time of award; that Call Henry will not be able to timely obtain such a
license, if at all; and that, as a consequence, Call Henry will not be
able to obtain the necessary state permits to perform the work required
under the solicitation.

   Our Office will not consider a protest challenging an affirmative
determination of responsibility except under limited circumstances,
because the determination that a particular contractor is capable of
performing a contract is largely committed to the contracting officer's
discretion.  4 C.F.R. S 21.5(c) (2004).  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); see Verestar Gov't Servs. Group, B-291854,
B-291854.2, Apr. 3, 2003, 2003 CPD P 68 at 4. 

   Here, the protester's allegations could be viewed as raising serious
concerns that the agency may have failed to consider relevant
responsibility information since an offeror's ability to meet a license
requirement set forth in a solicitation relates to the offeror's general
responsibility,[2] see, e.g., United Seguranca, Ltda., B-294388,
OctoberA 21, 2004, 2004 CPD P 207 at ____; Restec Contractors, Inc.
B-245862, Feb. 6, 1992, 92-1 CPD P154 at 4, and the solicitation here
specifically called for the contractor to possess a particular license. 
As explained below, however, information regarding the awardee's ability
to obtain the license is not the type of information that would be
expected to have a strong bearing on the awardee's responsibility here, so
that any contention that the agency failed to consider such information is
not sufficient to trigger review by our Office of the agency's
responsibility determination.

   As a general matter, under North Carolina law, a general contractor's
license is required for `the construction of any building, highway, public
utilities, grading or any improvement or structure, where the cost of the
undertaking is thirty thousand dollars ($30,000) or more . . .'  N.C. Gen.
Stat. S 87-1 (2004).  Here, the agency maintains that the RFP's
requirements are primarily for facility maintenance services, not
construction.  Specifically, according to the agency, only one area out of
the 21 areas described in the statement of work could potentially involve
construction work.[3]  While Transcontinental asserts generally that `the
majority of the employees and the value of the work orders are primarily
construction in nature,' the protester does not explain how, or what part
of, the work qualifies as construction under North Carolina law,
Protester's Comments at 2-3, and the requirements, on their face, do not
suggest that construction work will be required to any significant extent,
if at all.  In fact, the term `construction' is not used to describe any
of the required services under the RFP; rather, virtually all of the
requirements are described as repair, inspection, or maintenance
activities. 

   Responsibility ultimately concerns the contracting officer's judgment as
to a firm's ability to perform the work and whether the firm has
sufficient integrity for the government to rely on its representations and
agreement to perform.  See generally FAR subpart 9.1.  Because the work
under the RFP was not primarily for construction--rather, construction
appears to be encompassed, if at all, under only one of the 21
requirements set forth in the RFP'it is reasonable to regard the license
requirement, as argued by the agency, as having little bearing on Call
Henry's ability to perform the required work.  As a result, the
protester's contention that the agency failed to consider information
regarding the awardee's ability to obtain the license does not satisfy
the threshold requirement for our review of the agency's responsibility
determination under 4 C.F.R. S-21.5(c).

   The protest is dismissed.

   Anthony H. Gamboa

   General Counsel

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

   [1] The statement of work indicated that the facilities support services
included, but were not limited to, the following: 

   (1) Alterations, modifications of laboratory and office space, and repair
of buildings, equipment, and electrical, mechanical/plumbing systems; (2)
Planning, estimating, engineering and scheduling of Work Orders; (3)
Review of proposed changes to EPA [Research Triangle Park] Facilities; (4)
Shop services: carpenter, machine, and metal; (5)A Preventive/Predictive
maintenance (PM) inspections and repairs; (6) Electrical safety
inspections and maintenance of electrical services/panels and substation
switchgear; (7) Electronic security system maintenance; (8) Fire
extinguisher inspections and maintenance; (9) Inspection, maintenance, and
repair of Government-owned fire alarm and sprinkler systems; (10) Chapel
Hill building management and control systems maintenance; (11) Building
Automation System (BAS) operation and maintenance . . . ; (12) Picture
perfect Rusco card access system operation and maintenance (includes
issuance of ID/access cards (15)A Elevator maintenance; (16)A Locksmith
services; (17) Sign services; (18) Environmental Compliance; (19) Snow
removal service . . . ; (20)A Roadway/surface parking lot and parking deck
maintenance; and (21) Shuttle service. 

   RFP, Statement of Work, at 12.

   [2] In its initial protest, Transcontinental also argued that the North
Carolina contractor's license requirement constituted a definitive
responsibility criterion.  While our Regulations provide that we will
consider protests alleging that definitive responsibility criteria in a
solicitation were not met, see 4 C.F.R. S 21.5(c), we dismissed this basis
of protest on the ground that the license requirement did not constitute a
definitive responsibility criterion because the solicitation did not
specifically require offerors to possess or show the ability to obtain the
license prior to award.  We concluded that the license issue was a
contract performance requirement that would not affect the decision to
award the contract other than in the context of a general responsibility
determination and thus continued to develop only the subject challenge of
the agency's affirmative responsibility determination. 

   After its initial protest filing, Transcontinental raised a supplemental
basis for protest, arguing that Call Henry's key personnel lacked certain
specific licenses as required by the solicitation.  We dismissed this
basis of protest as untimely because the allegation was raised more than
10 days after Transcontinental knew or should have known of this basis of
protest.  4 C.F.R. S 21.2(a)(2).

   [3] The agency does not identify which of the 21 work areas it believes
could involve construction; however, based upon a review of the
requirements, it seems most likely that the agency is referring to the
requirements under (1) Alterations, modifications of laboratory and
office space, and repair of buildings, equipment, and electrical,
mechanical/plumbing systems,' since they potentially involve work
requiring modifications to building space, and none of the other
requirements would appear to encompass any construction work.
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