B-213330, MAR 20, 1984

B-213330: Mar 20, 1984

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DIGEST: PROTEST ALLEGING THAT LOW BIDDER DID NOT MEET 3-YEAR EXPERIENCE REQUIREMENT SET FORTH IN IFB BECAUSE LOW BIDDER HAD NOT BEEN INCORPORATED FOR 3 YEARS IS DENIED. CONTRACTING OFFICER'S DETERMINATION THAT LOW BIDDER MET EXPERIENCE CRITERION WAS REASONABLY BASED ON EVIDENCE PROVIDED BY LOW BIDDER. MONGEAU CHARGES THAT ACI SHOULD HAVE BEEN DECLARED INELIGIBLE FOR AWARD BECAUSE IT COULD NOT MEET THE EXPERIENCE REQUIREMENT SET FORTH IN THE SOLICITATION. THE PROTEST IS DENIED. THE SPECIFIC ELIGIBILITY CRITERION IN QUESTION IS SET FORTH IN PARAGRAPH 4 OF THE IFB'S TECHNICAL SPECIFICATIONS. WHICH STATED IN PERTINENT PART: "QUALITY OF WORKMANSHIP AND EXPERIENCE REQUIREMENTS: EMPLOYEES ACCOMPLISHING WORK UNDER THIS CONTRACT SHALL BE FULLY QUALIFIED IN THEIR FIELD OF ENDEAVOR AND THE PARENT ORGANIZATION MUST HAVE AT LEAST THREE YEARS OF SATISFACTORY EXPERIENCE INSTALLING CATHODIC PROTECTION SYSTEMS UTILIZING DEEP GROUND BEDS WHICH ARE AT LEAST 150 FEET DEEP.

B-213330, MAR 20, 1984

DIGEST: PROTEST ALLEGING THAT LOW BIDDER DID NOT MEET 3-YEAR EXPERIENCE REQUIREMENT SET FORTH IN IFB BECAUSE LOW BIDDER HAD NOT BEEN INCORPORATED FOR 3 YEARS IS DENIED. LOW BIDDER AND ITS PREDECESSOR ORGANIZATION HAD BEEN INCORPORATED FOR APPROXIMATELY 2 YEARS, 11 MONTHS, AT TIME OF AWARD AND PROVIDED JOB REFERENCES TO SHOW THAT IT HAD BEEN DOING SIMILAR WORK TO THAT REQUIRED BY IFB PRIOR TO INCORPORATION. IN THESE CIRCUMSTANCES, CONTRACTING OFFICER'S DETERMINATION THAT LOW BIDDER MET EXPERIENCE CRITERION WAS REASONABLY BASED ON EVIDENCE PROVIDED BY LOW BIDDER.

R.R. MONGEAU ENGINEERS, INC.:

R.R. MONGEAU ENGINEERS, INC. (MONGEAU), PROTESTS AWARD OF A CONTRACT TO AMERICAN CORROSION, INC. (ACI), BY THE DEPARTMENT OF THE AIR FORCE PURSUANT TO INVITATION FOR BIDS (IFB) NO. F39601-83-B-0026. THE CONTRACT REQUIRES ACI TO INSTALL A CATHODIC PROTECTION SYSTEM AT ELLSWORTH AIR FORCE BASE, SOUTH DAKOTA. MONGEAU CHARGES THAT ACI SHOULD HAVE BEEN DECLARED INELIGIBLE FOR AWARD BECAUSE IT COULD NOT MEET THE EXPERIENCE REQUIREMENT SET FORTH IN THE SOLICITATION.

THE PROTEST IS DENIED.

THE SPECIFIC ELIGIBILITY CRITERION IN QUESTION IS SET FORTH IN PARAGRAPH 4 OF THE IFB'S TECHNICAL SPECIFICATIONS, WHICH STATED IN PERTINENT PART:

"QUALITY OF WORKMANSHIP AND EXPERIENCE REQUIREMENTS: EMPLOYEES ACCOMPLISHING WORK UNDER THIS CONTRACT SHALL BE FULLY QUALIFIED IN THEIR FIELD OF ENDEAVOR AND THE PARENT ORGANIZATION MUST HAVE AT LEAST THREE YEARS OF SATISFACTORY EXPERIENCE INSTALLING CATHODIC PROTECTION SYSTEMS UTILIZING DEEP GROUND BEDS WHICH ARE AT LEAST 150 FEET DEEP. A LIST OF 5 DEEP GROUND BED PROJECTS COSTING $30,000 OR MORE EACH SHALL BE SUBMITTED ALONG WITH THE BID SUBMITTALS. CONTRACTORS WHO HAVE ALREADY INSTALLED DEEP GROUND BEDS AT MINUTEMAN MISSILE COMPLEXES ARE CONSIDERED QUALIFIED. ..."

GENERALLY, OUR OFFICE DOES NOT REVIEW A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, ABSENT A SHOWING OF FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS. SEE CENTRAL METAL PRODUCTS, INCORPORATED, 54 COMP.GEN. 66 (1974), 74-2 CPD 64. HOWEVER, WHERE, AS HERE, THERE IS A QUESTION CONCERNING WHETHER A BIDDER MEETS A DEFINITIVE GUIDELINE OR ELIGIBILITY CRITERION, WE DO REVIEW THE AFFIRMATIVE DETERMINATION TO DETERMINE IF IT WAS REASONABLY BASED IN VIEW OF THE SPECIFIC STANDARD SET FORTH IN THE IFB. SEE HARRY KAHN ASSOCIATES, INC., B-185046, JULY 19, 1976, 76-2 CPD 51; HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC COMPANY, 55 COMP.GEN. 1051, 76-1 CPD 294; DATA TEST CORPORATION, 54 COMP.GEN. 499, 502, 74-2 CPD 365.

BASICALLY, MONGEAU ARGUES THAT ACI COULD NOT MEET THE IFB'S REQUIREMENT THAT THE "PARENT ORGANIZATION MUST HAVE AT LEAST THREE YEARS OF SATISFACTORY EXPERIENCE" BECAUSE ACI IS LESS THAN 3 YEARS OLD. MONGEAU HAS SENT US DOCUMENTATION IN SUPPORT OF ITS PROTEST WHICH SHOWS THAT ACI WAS ORIGINALLY INCORPORATED IN THE STATE OF TEXAS ON OCTOBER 30, 1980, UNDER THE NAME OF SUNSET MANUFACTURING, INC. (THE NAME WAS CHANGED TO ACI ON OCTOBER 26, 1982). MONGEAU STATES THAT ACI HAS MISLED THE AIR FORCE BY SUBMITTING INFORMATION RELEVANT TO THE EXPERIENCE CRITERION WHICH SHOWS THAT ACI HAS PERFORMED CATHODIC PROTECTION INSTALLATION UNDER SEVERAL DIFFERENT NAMES (SUNSET ENTERPRISES, SUNSET ENTERPRISES, INC., AND SUNSET CORROSION) WHEN, IN FACT, THE NAMED FIRMS ARE NOT PRESENTLY NOR HAVE THEY EVER BEEN ASSOCIATED WITH ACI.

WE HAVE RECOGNIZED THAT AN EVALUATION OF A FIRM'S CORPORATE EXPERIENCE NEED NOT BE LIMITED TO THE TIME FROM WHICH THE CORPORATION BEGAN ITS LEGAL EXISTENCE. SEE HARRY KAHN ASSOCIATES, INC., SUPRA. IT IS NOT IMPROPER FOR AN AGENCY TO CONSIDER THE EXPERIENCE OF A PREDECESSOR FIRM OR OF A CORPORATION'S PRINCIPAL OFFICERS WHICH WAS OBTAINED PRIOR TO THE DATE THE BIDDER WAS INCORPORATED. 36 COMP.GEN. 673, 674 (1957). IN HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC COMPANY, SUPRA, WE HELD THAT EXPERIENCE GAINED BY A CORPORATION'S OFFICERS BEFORE THE DATE OF THE FIRM'S INCORPORATION COULD PROPERLY BE CONSIDERED BY THE CONTRACTING OFFICER IN MAKING A DETERMINATION WHETHER THE FIRM MET AN ELIGIBILITY CRITERION WHICH WAS SIMILAR TO THE ELIGIBILITY CRITERION SET FORTH IN THE PRESENT IFB. WE STATED THAT "THE MERE FACT THAT THE CORPORATION HAD ONLY BEEN IN EXISTENCE SINCE EARLY 1975 IS NOT DETERMINATIVE OF ITS ABILITY TO MEET THE 'APPROXIMATELY 5 YEARS' EXPERIENCE REQUIREMENT" OF THE SOLICITATION. SEE, GENERALLY, HARRY KAHN ASSOCIATES, INC., SUPRA; HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC COMPANY, SUPRA, AND CASES CITED THEREIN; 36 COMP.GEN. 673, SUPRA.

ACCORDING TO ACI, ITS CORPORATE EXPERIENCE GOES BACK TO 1974 WHEN A FIRM CALLED SUNSET ENTERPRISES BEGAN DOING BUSINESS IN OKLAHOMA IN THE CATHODIC PROTECTION FIELD AS AN UNINCORPORATED ENTITY. SUNSET ENTERPRISES INCORPORATED IN OKLAHOMA IN 1978 AND IN TEXAS IN 1979. ACCORDING TO ACI, THE PRESIDENT AND PRINCIPAL STOCKHOLDER OF SUNSET ENTERPRISES, INC., FORMED SUNSET MANUFACTURING, INC. (INCORPORATED IN TEXAS ON OCTOBER 30, 1980). INITIALLY, SUNSET MANUFACTURING, INC., MANUFACTURED PRODUCTS FOR SUNSET ENTERPRISES, INC., FOR USE IN ITS CATHODIC PROTECTION BUSINESS; HOWEVER, THE PRESIDENT AND PRINCIPAL SHAREHOLDER OF SUNSET ENTERPRISES, INC., CEASED DOING ANY CATHODIC PROTECTION BUSINESS AS PART OF SUNSET ENTERPRISES, INC., AND TRANSFERRED THE CATHODIC PROTECTION BUSINESS TO SUNSET MANUFACTURING, INC., THE PREDECESSOR TO ACI. THUS, ACI CONTENDS THAT IT HAS BEEN IN THE CATHODIC PROTECTION BUSINESS IN ONE FORM OR ANOTHER FOR MORE THAN THE MINIMUM OF 3 YEARS REQUIRED BY THE IFB.

THE FILE ON THIS PRESENT PROTEST IS DEVOID OF ANY DOCUMENTATION, OTHER THAN ACI'S STATEMENT, TO SHOW THAT THERE WAS A WORKING RELATIONSHIP BETWEEN SUNSET ENTERPRISES, INC., AND ITS PRESIDENT/PRINCIPAL SHAREHOLDER AND SUNSET MANUFACTURING, INC./ACI. HOWEVER, IT IS CLEAR FROM THE SUBMISSIONS, AND UNDISPUTED BY THE PARTIES, THAT ACI WAS LEGALLY INCORPORATED IN THE STATE OF TEXAS ON OCTOBER 30, 1980, UNDER THE NAME OF SUNSET MANUFACTURING, INC. THUS, ACI HAD BEEN LEGALLY IN EXISTENCE FOR APPROXIMATELY 2 YEARS, 10 MONTHS, AT THE TIME OF BID OPENING (AUGUST 29, 1983) AND FOR APPROXIMATELY 2 YEARS, 11 MONTHS, AT THE TIME OF AWARD (SEPTEMBER 27, 1983). MOREOVER, WE HAVE BEEN INFORMED BY THE AIR FORCE THAT, AS OF FEBRUARY 27, 1984, ACI HAD ONLY ORDERED MATERIALS, BUT HAD NOT BEGUN ACTUAL DRILLING AND INSTALLATION AND WILL NOT BEGIN THOSE OPERATIONS UNTIL THE GROUND HAS THAWED. ACCORDINGLY, ACI WILL HAVE BEEN IN EXISTENCE FOR MORE THAN THE REQUIRED 3 YEARS WHEN IT ACTUALLY BEGINS TO INSTALL THE CATHODIC PROTECTION SYSTEM. IN OUR VIEW, ACI HAS SUBSTANTIALLY COMPLIED WITH THE IFB'S 3-YEAR EXPERIENCE REQUIREMENT EVEN IF THE EXPERIENCE IT ALLEGEDLY DERIVED FROM SUNSET ENTERPRISES, INC., IS NOT CONSIDERED. NOTE, MOREOVER, THAT WE HAVE NO REASON TO BELIEVE THAT ACI'S RELATIONSHIP WITH SUNSET ENTERPRISES, INC., IS OTHER THAN AS ACI HAS CLAIMED. FURTHERMORE, ACI PROVIDED THE CONTRACTING OFFICER A LIST OF JOB REFERENCES TO CONFIRM ITS CLAIMED CATHODIC PROTECTION EXPERIENCE IN ACCORD WITH PARAGRAPH 4 OF THE IFB'S TECHNICAL SPECIFICATIONS. AFTER CONTACTING SEVERAL OF THE NAMED REFERENCES, THE CONTRACTING OFFICER CONCLUDED THAT ACI OR ITS PREDECESSOR HAD THE REQUISITE LEVEL OF EXPERIENCE TO QUALIFY FOR AWARD SINCE ACI HAD PERFORMED SATISFACTORILY ON SEVERAL PROJECTS OVER A NUMBER OF YEARS.

OUR OFFICE WILL NOT OBJECT TO A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY BASED UPON A DEFINITIVE CRITERION WHERE THE BIDDER SUBMITTED EVIDENCE TO SHOW ITS COMPLIANCE WITH THE IFB'S CRITERION, SINCE THE EXTENT TO WHICH WORK REFERENCED BY THE BIDDER IS SIMILAR TO WORK REQUIRED BY THE IFB IS WITHIN THE SOUND DISCRETION OF THE CONTRACTING OFFICER. VECTOR ENGINEERING, INC., B-200536, JULY 7, 1981, 81-2 CPD 9. DETERMINATIONS BASED UPON SUCH DISCRETION WILL BE UPHELD IN THE ABSENCE OF A SHOWING OF FRAUD IN MAKING THOSE DETERMINATIONS. VECTOR ENGINEERING, INC., SUPRA. NO FRAUD HAS BEEN SHOWN IN THE PRESENT CASE. ACCORDINGLY, WE FIND THAT THE CONTRACTING OFFICER'S DETERMINATION THAT ACI MET THE 3-YEAR EXPERIENCE REQUIREMENT WAS REASONABLE BASED UPON THE EVIDENCE PRESENTED BY ACI.

THE PROTEST IS DENIED.