TITLE: B-310485, Nilson Van & Storage, Inc., December 10, 2007
BNUMBER: B-310485
DATE: December 10, 2007
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B-310485, Nilson Van & Storage, Inc., December 10, 2007
Decision
Matter of: Nilson Van & Storage, Inc.
File: B-310485
Date: December 10, 2007
Alan F. Wohlstetter, Esq., Denning & Wohlstetter, for the protester.
H. Addison Winters, The Yarborough Law Firm, P.A., for A+ Relocation
Services, Inc. dba A+ Moving & Storage, an intervenor.
Maj. William J. Nelson, Department of the Army, for the agency.
Frank Maguire, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting officer improperly determined awardee to be
responsible, notwithstanding awardee's failure to supply all information
requested by solicitation regarding previous performance of comparable
contracts, is dismissed, where information request did not constitute
definitive responsibility criterion, and there is no evidence raising
serious concern that contracting officer ignored relevant responsibility
information.
DECISION
Nilson Van & Storage, Inc. protests the award of a contract to A+
Relocation Services, Inc., dba A+ Moving and Storage under request for
proposals (RFP) No. W91247-07-R-0004, issued by the Department of the Army
for moving and storage services at Fort Bragg.
We dismiss the protest.
The solicitation was issued on August 3, 2007 for services related to the
moving and storage of household goods of service members and their
dependents. The requirement was divided into three separate schedules:
schedule I for outbound moves, schedule II for inbound moves, and schedule
III for intra city and intra area moves. Agency Report at 2. Award was to
be made on the basis of price. RFP at 115.
The Army awarded three separate contracts, including schedule II to Nilson
and schedule III to A+ Relocation. Nilson, the incumbent on the schedule
III requirement, protests the schedule III award to A+ Relocation on four
grounds: 1) the solicitation improperly failed to include past performance
as an evaluation factor; 2) the awardee failed to comply with solicitation
clause 52.212-2(b), which called for offerors to provide information on up
to three contracts "of comparable magnitude and similar in nature to the
work required" under the solicitation; 3) the Army failed to conduct a
preaward survey and thereby make a proper responsibility determination;
and 4) an alleged criminal conviction of the president of the awardee
violated a performance work statement (PWS) provision requiring background
checks of contractor employees.
The Army requested summary dismissal of the protest by letter of October
19. We concluded, and advised the parties, that three of Nilson's
arguments failed to state valid protest grounds: the first issue was
untimely because it concerned an alleged solicitation impropriety, and
thus had to be filed prior to the closing time, Bid Protest Regulations, 4
C.F.R. sect. 21.2 (a)(1) (2007); the third issue concerned an affirmative
responsibility determination that was not for our review, under 4 C.F.R.
sect. 21.5(c); and the fourth issue was a matter of contract
administration that was not for our review, under 4 C.F.R. sect. 21.5(a).
GAO Memorandum to the Parties, Oct. 25, 2007.
We did not dismiss the second protest ground--that A+ Relocation's failure
to comply with RFP clause 52.212-2(b) rendered the agency's affirmative
responsibility determination improper--concluding that further development
of the record was necessary. However, we now find that this argument, too,
is not for our review.
RFP clause 52.212-2(b) advised offerors to provide specific information on
up to three contracts "of comparable magnitude and similar in nature to
work required" under the RFP, that were performed within the past 3 years.
RFP at 115. Past performance was not an evaluation factor, and the agency
states that the requested information was intended to assist the
contracting officer in making her responsibility determination. See AR at
5. In response to the clause, A+ Relocation provided a list of names,
addresses, and telephone numbers regarding three prior contracts, but did
not identify the contract values and descriptions of the services
performed, as requested by the clause. AR, Tab 7, at 5-6.
In a document entitled "Determination of Responsibility," dated September
19, the contracting officer memorialized the bases of her finding that A+
Relocation was a responsible offeror. AR, Tab 7, at 1. She noted that
providing "packing and crating services to Fort Bragg and Pope AFB, NC are
within the firm's line of business as verified by previous customers,"
acknowledged A+ Relocation's bank reference, and also noted that "to the
best of [her] knowledge and past performance of previous contracts, A+
Relocation Services Inc. is experienced and knowledgeable in this field."
Id.
Nilson challenges this determination, pointing out that the Federal
Acquisition Regulation (FAR) requires a contract awardee, in order to be
determined responsible, to be "able to comply with the required or
proposed delivery or performance schedule" and have "a satisfactory
performance record." Nilson Submission, Oct. 24, 2007, at 2; FAR
sect. 9.104-1(b),(c). Nilson contends that it is "inconceivable" that the
contracts listed by A+ Relocation were similar and comparable in magnitude
to work under the RFP, and that the contracting officer's findings are
conclusory, and thus provide no basis for finding that A+ Relocation has
the capability to perform the contract. Id. at 2-4.
We will consider protests challenging affirmative determinations of
responsibility only under limited, specified circumstances: 1) where it is
alleged that definitive responsibility criteria in the solicitation were
not met, or 2) where evidence is identified that raises 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. 4 C.F.R.
sect. 21.5(c); American Printing House for the Blind, Inc., B-298011, May
15, 2006, 2006 CPD para. 83 at 5-6; Government Contracts Consultants,
B-294335, Sept. 22, 2004, 2004 CPD para. 202 at 2.
Nilson's allegation falls under neither of the exceptions. First, it is
clear that the clause is not a definitive responsibility criterion, which
is a specific and objective standard, qualitative or quantitative, that is
established by a contracting agency in a solicitation to measure an
offeror's ability to perform a contract. In order for a standard to
constitute a definitive responsibility criterion, the solicitation must
make demonstration of compliance with the standard a precondition to
receiving award. Public Facility Consortium I, LLC; JDL Castle Corp.,
B-295911, B-295911.2, May 4, 2005, 2005 CPD para. 170 at 2-3; SDA,
Inc.--Recon., B-249386.2, Aug. 26, 1992, 92-2 CPD para. 128 at 2-3. Here,
rather than specifying a minimum, the clause only provided that offerors
will provide information on "up to" three contracts--and it did not state
that similarity of work and magnitude were preconditions for award. SDA,
Inc.--Recon., supra. Under these circumstances, the clause was merely an
informational requirement, noncompliance with which was not a basis for
eliminating an offeror from consideration for award. See VA Venture;
St. Anthony Med. Ctr., Inc., B-222622, B-222622.2, Sept. 12, 1986, 86-2
CPD para. 289 at 4-5; Patterson Pump Co., B-204694, Mar. 24, 1982, 82-1
CPD para. 279; compare Charter Envtl., Inc., B-297219, Dec. 5, 2005, 2005
CPD para. 213 at 2-3 (standard was definitive responsibility criterion
where it required offeror to have successfully completed at least three
projects that included certain described work, and at least three projects
of comparable size and scope).
Nilson's allegation also does not raise a serious concern that the
contracting officer "unreasonably failed to consider available relevant
information or otherwise violated statute or regulation." Such
circumstances could occur where the protester presents evidence, for
example, 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. See, e.g., Southwestern Bell Tel.
Co., B-292476, Oct. 1, 2003, 2003 CPD para. 177 at 7-11 (GAO reviewed
allegation where evidence was presented that the contracting officer
failed to consider serious, credible information regarding awardee's
record of integrity and business ethics); Verestar Gov't Servs. Group,
supra, at 4; Universal Marine & Indus. Servs., Inc., B-292964, Dec. 23,
2003, 2004 CPD para. 7 at 2. Nilson has identified no such specific
information. Rather, it alleges that the agency should have verified the
information provided or obtained additional information. A dispute over
the amount of information upon which an affirmative responsibility
determination was based, or disagreement with the contracting officer's
determination, does not fall within the circumstances under which our
Office will review such a determination. See, e.g., Brian X. Scott,
B-298568, Oct. 26, 2006, 2006 CPD para. 156 at 4.
Nilson also challenges our finding that the third and fourth allegations
in its original protest failed to state valid protest grounds. We find no
basis for changing our conclusions. As to the third allegation--that no
preaward survey or investigation was conducted before finding the awardee
responsible--an agency is not required to conduct such a survey or
investigation in making an affirmative determination of responsibility.
See CMT Assocs., B-242644, B-242644.4, Nov. 1, 1991, 91-2 CPD para. 417.
In any case, this allegation ultimately questions the propriety of the
agency's affirmative responsibility determination, and, for the same
reasons discussed above, falls outside of the circumstances under which we
will review such a determination. 4 C.F.R. sect. 21.5(c); GAO Memorandum
to the Parties, Oct. 25, 2007.
It also remains our view that the fourth protest ground--that the alleged
criminal conviction of the president of the awardee made A+ Relocation
ineligible for award under section 1.2.1 of the solicitation's performance
work statement (PWS)--concerns a matter of contract administration.
Section 1.2.1 reads as follows:
All Contractors are required to perform a background check on all
personnel before hiring to insure persons accepted for employment do not
have a serious misdemeanor or felony conviction such as sex offense,
drug offense, larceny, robbery or other crime of violence.
RFP at 71. Section 1.2.1 is included in the PWS under "General
Requirements," and imposes a requirement on the contractor, as part of
performance of the contract, to conduct a background check on prospective
employees. This being the case, the awardee's compliance with section
1.2.1 is plainly a matter of contract administration, subject to oversight
by the Army, rather than a requirement that offerors were required to meet
in order to be eligible for award. See Evergreen Fire & Sec., B-296510,
Aug. 22, 2005, 2005 CPD para. 165 at 3. GAO does not review matters of
contract administration under our bid protest function. 4 C.F.R. sect.
21.5(a); see, e.g., Sealift, Inc., B-298588, Oct. 13, 2006, 2006 CPD para.
162 at 2-3.
Nilson also argues that the alleged criminal conviction of the president
of A+ Relocation bears on the propriety of the contracting officer's
responsibility determination. This allegation is untimely; under our
Regulations, protest grounds such as this must be raised no later than 10
days after the protester knew or should have known them. 4 C.F.R.
sect. 21.2(a)(2). Nilson was aware of the alleged conviction more than 10
days before raising this argument in its November 5 submission. In any
case, there is no evidence that the contracting officer was aware of this
information prior to award and, moreover, a criminal conviction would not
preclude an affirmative determination of responsibility. In this latter
regard, as the Army notes, the alleged conviction here occurred outside
the 3 year threshold for convictions established in the "Certification
Regarding Debarment, Suspension, Proposed Debarment, and Other
Responsibility Matters," required by FAR sect. 9.409(a), and was not the
typical fraud or procurement-related offense normally the subject of
debarment and responsibility determinations. Agency Submission, Oct. 19,
2007.
The protest is dismissed.
Gary L. Kepplinger
General Counsel