TITLE: B-297219, Charter Environmental, Inc., December 5, 2005
BNUMBER: B-297219
DATE: December 5, 2005
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B-297219, Charter Environmental, Inc., December 5, 2005

   Decision

   Matter of: Charter Environmental, Inc.

   File: B-297219

   Date: December 5, 2005

   Daniel J. Kelly, Esq., and Gary J. Campbell, Esq., Gadsby Hannah, for the
   protester.

   Azine Farzami, Esq., Department of Agriculture, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Contracting agency unreasonably determined that apparent low bidder on
   invitation for bids for the stabilization and removal of mine waste met
   the solicitation's definitive responsibility criterion requiring that the
   awardee have completed three similar projects, where the agency only
   considered the experience of what is apparently the low bidder's parent
   company, even though the record does not contain a commitment by the
   parent company to the low bidder's successful performance of the work.

   2. Bid cannot be rejected as nonresponsive on the basis that the bid did
   not include completed standard representations and certifications or the
   bidder had not yet registered in the Central Contractor Registration.

   DECISION

   Charter Environmental, Inc. protests the proposed award of a contract to
   ECI Northeast, LLC, under invitation for bids (IFB) No NEAT-05-190, issued
   by the Forest Service, Department of Agriculture, for restoration of the
   Ore Hill Mine Site in New Hampshire. Charter argues that ECI Northeast's
   bid should have been rejected as nonresponsive, and that ECI Northeast
   does not meet the IFB's definitive responsibility criteria and is thus
   ineligible for award.

   We sustain the protest in part and deny it in part.

   The IFB provides for the award of a fixed-price contract for the mine
   restoration services, which include, for example, the removal and
   stabilization of mine waste. The solicitation (at 4), under the heading
   "RESPONSIBILITY CRITERIA," provided in part as follows:

   While this information does not need to be furnished with your bid, to be
   eligible for award bidders must meet the following affirmative
   responsibility criteria:

   Contractor Experience

   The Contractor shall have successfully completed at least 3
   [solidification/stabilization] S/S projects requiring stabilization of
   lead with a phosphate based reagent. In addition the Contractor shall have
   successfully completed at least 3 S/S projects of comparable size and
   scope in accordance with local, state, and federal requirements using the
   proposed system or a similar system.

   The agency received six bids, with ECI Northeast submitting the apparent
   low bid of $2,232,309, and Charter submitting the second low bid of
   $2,394,261. Agency Report (AR), Tab 7, Bid Abstract. After requesting and
   receiving certain information from ECI Northeast, the agency determined
   that ECI Northeast met the above "responsibility criteria" and selected
   that firm for award. This protest followed.

   Charter argues that ECI Northeast does not have the experience required as
   set forth in the IFB's responsibility criteria under "Contractor
   Experience," and that the agency's determination that ECI Northeast
   satisfied the experience requirements, based upon the agency's
   consideration of projects completed by ECI Northeast's parent
   company--Environmental Contractors of Illinois (ECI)--was improper.

   Definitive responsibility criteria are specific and objective standards
   designed to measure a prospective contractor's ability to perform the
   contract. Such criteria, which must be met as a precondition to award,
   limit the class of contractors to those meeting specified qualitative and
   quantitative qualifications necessary for adequate performance, e.g.,
   unusual expertise or specialized facilities. MEI, Inc., B-277235.2, Nov.
   12, 1997, 97-2 CPD para. 138 at 2. Here, there is no dispute that the
   "Corporate Experience" paragraph set forth above, which requires the
   prospective contractor to have completed at least three S/S projects of a
   certain type, size, and scope, is a definitive responsibility criterion.

   Where a protester alleges 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
   officer reasonably could conclude that the criterion has been met;
   generally, a contracting agency has broad discretion in determining
   whether bidders meet definitive responsibility criteria. Although the
   relative quality of the evidence is a matter within the contracting
   officer's judgment, the contracting officer may only find compliance with
   the definitive responsibility criterion based on adequate, objective
   evidence. MEI, Inc., supra, at 2.

   As a general rule, the experience of a technically qualified subcontractor
   or third party--such as an affiliate or consultant--may be used to satisfy
   definitive responsibility criteria relating to experience for a
   prospective prime contractor. In considering whether the experience of a
   third party subcontractor or affiliate may be relied upon by a prime
   bidder to meet an experience criterion, we examine the record for evidence
   of a commitment by the third party to the bidder's successful performance
   of the work. MEI, Inc., supra, at 3; Tutor-Saliba., Perini Corp., Buckley
   & Co., and O & G Indus., Inc., A Joint Venture, B-255756, Mar. 29, 1994,
   94-1 CPD para. 223 at 5-6.

   Here, the agency contacted ECI Northeast and requested that it provide
   information establishing that ECI Northeast had completed three S/S
   projects as required by the IFB. AR, Tab 2, Agency E-mail to ECI
   Northeast. ECI Northeast responded by providing information regarding
   three projects completed by ECI, which the contracting officer "accept[ed]
   . . . as valid," based upon his understanding that "ECI Northeast [is] a
   branch office of ECI." AR, Tab 2, ECI Project Summaries; Contracting
   Officer's Statement at 4. The contracting officer explains here that when
   first reviewing ECI Northeast's bid, he "could not retrieve a CCR [central
   contractor registration] registration for ECI Northeast," so he "called
   the phone number on the bid and was informed that ECI Northeast is just a
   branch of [ECI]." Contracting Officer's Statement at 2. The agency, while
   recognizing that ECI is the "parent company" of ECI Northeast, also points
   out that the bid, which was submitted by ECI Northeast, provided the name
   and address of ECI in block 16, remittance address, of Standard Form 1442,
   the IFB cover sheet. AR at 9, 13.

   The information received by the agency does not, in our view, provide
   sufficient evidence of ECI's pre-award commitment to ECI Northeast's
   successful performance of the contract. Specifically, we do not
   understand, and the agency has not explained, why the mention by an ECI
   Northeast employee that ECI Northeast is a "branch office" of ECI
   establishes such a commitment. As indicated by the agency, ECI and ECI
   Northeast appear to be separate corporate entities, with ECI being the
   parent company. Nor has the agency explained why the fact that ECI's
   address appears in the remittance box of the IFB cover sheet establishes
   such a commitment. There is simply no information in the record providing
   a commitment on ECI's part to ECI Northeast's successful performance of
   the contract, and thus, no way to establish that ECI Northeast, and by
   extension, the agency, would reap the benefit of ECI's experience.
   Accordingly, under the circumstances here, the agency could not properly
   consider the experience of ECI in determining whether ECI Northeast met
   the solicitation's definitive responsibility criteria, and we sustain this
   aspect of Charter's protest.

   Charter also argues that ECI Northeast's bid should have been rejected as
   nonresponsive by the agency because ECI Northeast's bid did not include a
   completed Section K, "Representations, Certifications, and other
   Statements of Bidders" with its bid, and because ECI Northeast has not
   registered in CCR as required by the IFB. IFB at 117. These protest
   contentions do not provide a basis to reject ECI Northeast's bid.

   The failure to include with a bid completed standard representations and
   certifications does not render the bid nonresponsive because it does not
   affect the bidder's material obligations. Such a failure therefore may be
   waived as a minor bidding irregularity and the information may be
   furnished after bid opening. Jettison Contractors, Inc., B-242792, June 5,
   1991, 91-1 CPD para. 532 at 2. Similarly, and as conceded by the
   protester, the solicitation did not require that bidders be registered in
   the CCR prior to bid opening, but rather, required such registration prior
   to award. IFB at 117; Federal Acquisition Regulation sect. 52.204-7(b)(1)
   (requiring that a prospective awardee shall be registered in the CCR
   database prior to award); see Graves Constr., Inc., B-294032, June 29,
   2004, 2004 CPD para. 135 at 3 (protester not prejudiced by the agency's
   failure to verify whether the awardee had registered in the CCR prior to
   award). Moreover, the agency advises that during the course of this
   protest ECI Northeast has registered on the CCR. As such, and contrary to
   the protester's view, the agency properly considered ECI Northeast's bid
   responsive.

   The protest is sustained in part and denied in part. We recommend that the
   agency reconsider ECI Northeast's responsibility by ascertaining, through
   further communication with ECI Northeast if needed, whether ECI is
   committed to ECI Northeast's successful performance of the contract.[1] In
   the absence of reasonable objective evidence establishing such a
   commitment or other objective evidence that ECI Northeast meets the IFB's
   definitive responsibility requirements, ECI Northeast should be found
   nonresponsible and award made to the next low responsive and responsible
   bidder. We also recommend that Charter be reimbursed the reasonable costs
   of filing and pursuing the protest. 4 C.F.R. sect. 21.8(d)(1) (2005).
   Charter should submit its certified claim for costs, detailing the time
   expended and costs incurred, directly to the agency within 60 days of
   receiving this decision.

   Anthony H. Gamboa

   General Counsel

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

   [1] The solicitation, under the heading "RESPONSIBILITY CRITERIA," also
   provided as follows:

   Key Personnel

   Key personnel shall have a minimum of 3 years of S/S field experience. Key
   personnel shall include system foreman, quality control personnel, and
   supervisory engineering and technical staff involved with the proposed
   system of a similar system.

   The key personnel experience requirements here possess all of the
   characteristics of definitive responsibility criteria--they concern the
   capability of the bidder, not a specific product, and they are objective
   standards established by the agency as a precondition to award. See Vador
   Ventures, Inc., B-296394; B-296394.2, Aug. 5, 2005, 2005 CPD para. 155 at
   4. However, nothing in the record suggests that the agency performed any
   review of information from ECI Northeast with regard to the key personnel
   responsibility requirements. As such, we suggest that in addition to
   implementing our recommendation as set forth above, the agency also
   request and review information from ECI Northeast regarding its key
   personnel. The agency should also obtain from ECI Northeast completed
   standard representations and certifications.