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