TITLE: B-296394, B-296394.2, Vador Ventures, Inc., August 5, 2005
BNUMBER: B-296394, B-296394.2
DATE: August 5, 2005
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B-296394, B-296394.2, Vador Ventures, Inc., August 5, 2005

   Decision

   Matter of: Vador Ventures, Inc.

   File: B-296394, B-296394.2

   Date: August 5, 2005

   Richard D. Lieberman, Esq., McCarthy, Sweeney & Harkaway, PC, for the
   protester.

   James H. Roberts, Esq., Carrol H. Kinsey, Esq., Van Scoyoc Kelly PLLC, for
   Odoi Associates, Inc., an intervenor.

   Kathleen M. McCartney, Esq., General Services Administration, for the
   agency.

   Peter D. Verchinski, Esq., and David A. Ashen, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that awardee's proposed key personnel do not meet solicitation's
   definitive responsibility criteria requiring experience managing or
   supervising the operation of an 800,000 square foot building is denied
   where the agency has reasonably determined that experience of awardee's
   personnel with two buildings (totaling 971,425 square feet), operated in
   major respects as one building, and having integrated systems with
   equipment sized to operate the two buildings together, satisfied the
   requirements.

   DECISION

   Vador Ventures, Inc. protests the General Services Administration's (GSA)
   award of a contract to Odoi Associates, Inc., under invitation for bids
   (IFB) No. GS11P04YED0224, for building management services. Vador
   principally asserts that award to Odoi was improper becase Odoi failed to
   meet the definitive responsibility criteria set forth in the solicitation.

   We deny the protest.

   The IFB, issued as a section 8(a) set-aside, contemplated the award of a
   fixed-price contract for an initial period of one year, with 4 option
   years, for commercial facility management services, including operation
   and maintenance services, elevator maintenance services, and custodial
   services, at the Postal Square Building, 2 Massachusetts Avenue, NE,
   Washington, D.C. The IFB stated that award would be made to the
   lowest-priced, responsive, responsible bidder.

   The IFB set forth specific experience qualifications for key personnel the
   awardee was to provide under the contract, including the project manager,
   any alternate project managers, and on-site supervisory employees. For the
   project manager and the alternate project managers, the solicitation
   required 4 years experience (within the past 5 years) "in managing the
   operation, maintenance and repair, custodial services, building
   alterations, customer relations requirements, and all other operational
   components of a building with at least 800,000 square feet of occupiable
   space." IFB, Section J, exh. 1, at 2. The supervisory employees were to
   possess at least 4 years of recent (within the past 5 years) experience
   "in directing personnel responsible for accomplishment of work in their
   respective program area in a building of at least 800,000 square feet of
   occupiable office space." Id. at 4. Further, the IFB required that the
   apparent low bidder submit, "within 5 working days after notice to the
   apparent low bidder," detailed personnel resumes explaining how each
   individual had obtained the required experience. IFB, amend. 4, Section J,
   exh. 1, at Revised Page 2, 4 (emphasis in original). The solicitation did
   not state when award would be made.

   The agency received 14 bids by the closing time on April 7, including
   Odoi's low bid of $10,559,398, and Vador's second low bid of $12,315,353.
   By letter dated April 18, the agency informed Odoi that it was the
   apparent low bidder, and asked that it submit, among other things, the
   resumes required under the solicitation. On April 26, Odoi submitted the
   required information, and the agency awarded the contract 3 days later.

   Vador thereafter filed this protest with our Office, alleging that the
   experience requirements laid out in the solicitation constitute definitive
   responsibility criteria that the awardee failed to meet.[1] Specifically,
   Vador asserts that Odoi's personnel do not have experience working in an
   800,000 square foot building.

   Responsibility is a term used to describe the 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 what the FAR refers to as general standards of responsibility,
   such as adequacy of financial resources, ability to meet delivery
   schedules, and a satisfactory record of past performance and of business
   integrity and ethics. FAR sect. 9.104-1. In some cases, however, an agency
   will include in a solicitation a special standard of responsibility, FAR
   sect. 9.104-2, which is often referred to as a definitive criterion of
   responsibility. Definitive responsibility 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 peform
   the contract. FAR sect. 9.104-2; Specialty Marine, Inc., B-292053, May 19,
   2003, 2003 CPD para. 106 at 2-3.

   Because definitive responsibility criteria limit the competition to those
   who can meet them, and because compliance with them is not a matter of
   subjective business judgment but can be determined objectively, offerors
   must meet such criteria as a precondition for award. We consider protests
   alleging that a contracting officer failed to enforce the criteria. The
   Mary Kathleen Collins Trust, B-261019.2, Sept. 29, 1995, 96-1 CPD para.
   164 at 3; T. Warehouse Corp., B-248951, Oct. 9, 1992, 92-2 CPD para. 235.

   As a preliminary matter, GSA maintains that the experience requirements
   here do not constitute definitive responsibility criteria. This is so
   because, according to GSA, the solicitation did not specifically require
   the apparent low bidder to submit proof of the key personnel's experience
   prior to contract award. As stated above, definitive responsibility
   criteria are special standards that must be met as a precondition for
   award. In this case, the solicitation required that the resumes be
   submitted within 5 days after notification of a firm's apparent low bidder
   status, and made no reference to when award would be made. Consequently,
   the agency argues, award could have been made before the resumes were
   received, and thus award was not contingent upon the potential awardee's
   ability to meet the requirements. The agency maintains that whether the
   key personnel meet the experience requirements is a matter of contract
   administration.

   We find this argument unpersuasive. As noted by the agency, our Office has
   dismissed protests on the ground that certain requirements (such as
   license requirements) are not definitive responsibility criteria when the
   solicitation does not require offerors to meet, or demonstrate the ability
   to meet, the requirement prior to award. See, e.g., Transcontinental
   Enters., Inc., B-294765, Nov. 30 2004, 2004 CPD para. 240 at 3 n.2.
   However, while the solicitation here did not explicitly state that the
   agency would evaluate the key personnel experience prior to award, we find
   that in requiring submission of resumes within 5 working days of notice to
   the apparent low bidder, the solicitation reasonably indicated to bidders
   that the resumes would be evaluated before award in order to determine
   whether the low bidder was able to comply with the key personnel
   experience requirements laid out in the solicitation.[2] In our view, had
   GSA intended the resumes to be matters of contract administration (and not
   definitive responsibility criteria), one would reasonably expect that the
   requirement would have been for submission sometime after award had been
   made, rather than before award. We therefore find that the key personnel
   experience requirements possess all of the principal characteristics of a
   definitive responsibility criterion--they concern the capability of the
   offeror, not a specific product, and they are objective standards
   established by the agency as a precondition to award. See Specialty
   Marine, Inc., B-292053, May 19, 2003, 2003 CPD para. 106 at 3.

   Vador asserts that Odoi's key personnel failed to satisfy the definitive
   responsibility criteria because they did not have experience managing or
   supervising the operation of an 800,000 square foot building.
   Specifically, Vador contends that the agency improperly waived this
   requirement by considering two separate buildings, the Wilbur J. Cohen
   Building and the Mary E. Switzer Building in Washington, D.C., to be one
   qualifying building under the solicitation's requirements. Vador argues
   that because the two buildings have different street addresses and are
   separated by a street, with each building containing less than 800,000
   occupiable square feet, the experience of Odoi's key personnel managing or
   supervising the operation of the two buildings together did not satisfy
   the solicitation requirements.

   Where, as here, a protester asserts that a definitive responsibility
   criterion has not been satisfied, we will review the record to ascertain
   whether evidence of compliance has been submitted from which the
   contracting official reasonably could conclude that the criterion had been
   met; generally, a contracting agency has broad discretion in determining
   whether offerors meet definitive responsibility criteria. Carter Chevrolet
   Agency, Inc., B-270962, B-270962.2, May 1, 1996, 96-1 CPD para. 210 at 4.
   Further, literal compliance with definitive responsibility criteria is not
   required where there is evidence that an offeror has exhibited a level of
   achievement equivalent to the specified criteria. HAP Constr., Inc.,
   B-278515, Feb. 9, 1998, 98-1 CPD para. 48 at 4; Western Roofing Serv.,
   B-232666.3, Apr. 11, 1989, 89-1 CPD para. 368 at 4.

   We find no basis to question the agency's position that experience
   managing or supervising the operation of the Cohen and Switzer buildings
   was qualifying experience. The Cohen and Switzer buildings, while having
   two separate street addresses, share many of the same basic operating
   systems. The agency reports, and the protester does not dispute, that many
   of the Cohen and Switzer buildings' electrical, mechanical, and plumbing
   systems are unified operating systems with the equipment sized to operate
   the two buildings together. For example, the two buildings share a single,
   common chiller system for cooling the buildings. The two buildings are
   serviced by a single, common feed that supplies high pressure steam, and
   by a single, common electrical feed. (Indeed, the two buildings are billed
   by the steam and electrical providers as if they were one building.) The
   heating and air conditioning of the two buildings are controlled by a
   single, common energy management control system. Furthermore, contracted
   commercial facilities management services for the two buildings have
   always been obtained under one contract, and the buildings have always
   been serviced as one. Since the combined occupiable square footage of the
   two buildings is 971,425 square feet, and the two buildings function as
   one building in most important respects, we find that GSA has reasonably
   concluded that experience managing or supervising the operation of the two
   buildings could satisfy the IFB's requirement for experience managing or
   supervising an 800,000 square foot building.

   Vador asserts that considering the combined Cohen and Switzer buildings to
   be a single unit is inconsistent with a question and answer incorporated
   into the solicitation. Specifically, in response to a question as to
   whether "the contractor [may] submit personnel who have had similar
   experience on more than 990,000[3] square feet of occupiable space for a
   complex of buildings, not just a single building," the agency answered

   No. A building the size of Postal Square presents certain complexities
   that need a level of experience and abilities that can only be gained by
   working in a large facility. In order to ensure we are going to get that
   level of ability this requirement must be met.

   IFB, amend. 4, at 4.

   As noted by the agency, however, a complex of buildings may contain
   separate systems for each building. Here, in contrast, the Cohen and
   Switzer buildings operate in major respects as one building, having
   integrated systems with equipment sized to operate the two buildings
   together. Thus, the agency could reasonably conclude that the experience
   of the awardee's personnel with the two buildings (totaling 971,425 square
   feet), operated in major respects as one building, provided experience
   comparable to that which would be obtained managing and supervising the
   operation of a single, 800,000 square foot building.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] After receiving the agency report, Vador filed a supplemental protest
   on June 16, alleging that the awardee's bid was unbalanced, that the
   agency failed to perform a price reasonableness analysis of the awardee's
   bid, and that the agency improperly made an affirmative responsibility
   determination. We dismiss Vador's assertion regarding the alleged
   unbalancing of the awardee's bid as untimely filed. According to the
   record, which Vador does not challenge, Vador was emailed a copy of the
   bid abstract on April 21. Vador then had 10 days to protest the awardee's
   pricing; its failure to do so renders this ground untimely. 4 C.F.R.
   sect. 21.2(a)(2) (2005). Further, Vador's assertion that the agency did
   not properly evaluate the reasonableness of Odoi's low price provides no
   basis to question the award, since a price reasonableness evaluation is
   intended to determine whether offered prices are higher than warranted,
   not lower. Satellite Servs., Inc., B-295866, B-295866.2, Apr. 20, 2005,
   2005 CPD para. 84 at 3 n.3. Finally, GAO does not generally consider
   challenges to affirmative determinations of responsibility, except under
   limited circumstances not alleged or evident here. 4 C.F.R. sect. 21.5(c).
   These protest grounds are dismissed.

   [2] Indeed, further evidence that the solicitation requirement for
   submission of resumes "within 5 working days after notice to the apparent
   low bidder" was intended to result in submission of the resumes prior to
   award is found in the fact that the solicitation included a requirement
   that information demonstrating compliance with certain contractor
   experience requirements be submitted "within 5 working days after notice
   to the apparent low bidder" and specifically stated that such information
   "will be examined for authenticity prior to contract award." IFB, amend.
   4, Section J, exh. 1, at Revised Page 6.

   [3] This was subsequently changed to 800,000 square feet.