B-225613, JAN 27, 1987, 87-1 CPD 91

B-225613: Jan 27, 1987

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PROVIDED A PERFORMANCE WORK STATEMENT (PWS) DETAILING HOW THE WORK WAS TO BE ACCOMPLISHED. THE CONTRACTOR WAS REQUIRED TO CERTIFY IT WOULD PERFORM WITH FACTORY-CERTIFIED TECHNICIANS. THAT IS. TECHNICIANS CERTIFIED TO HAVE COMPLETED TRAINING MADE AVAILABLE BY THE MANUFACTURER. ASSERTS THAT DAILEY-WELLS IS UNABLE TO COMPLY WITH THIS REQUIREMENT AND THUS IS NOT ELIGIBLE FOR AWARD BECAUSE ITS TECHNICIANS HAVE NOT RECEIVED CERTIFIED TRAINING FROM MOTOROLA. MOTOROLA CONCLUDES THAT IT SUBMITTED THE ONLY ACCEPTABLE OFFER AND THUS IS ENTITLED TO THE ENTIRE CONTRACT AWARD. ASSERTS THAT IT IS ELIGIBLE FOR THE SET-ASIDE PORTION OF THE CONTRACT BY VIRTUE OF ITS CERTIFICATION THAT IT WOULD SUBCONTRACT WITH A SMALL BUSINESS CONCERN.).

B-225613, JAN 27, 1987, 87-1 CPD 91

PROCUREMENT - COMPETITIVE NEGOTIATION - CONTRACT AWARDS - PRE QUALIFICATION - CONTRACTOR PERSONNEL - TRAINING DIGEST: 1. REQUIREMENT IN PERFORMANCE WORK STATEMENT THAT "CONTRACTOR" CERTIFY TECHNICIANS' TRAINING PRIOR TO CONTRACT "START DATE" DOES NOT ESTABLISH A CERTIFICATION REQUIREMENT AS A PRECONDITION TO RECEIVING AWARD. PROCUREMENT - CONTRACT MANAGEMENT - CONTRACT PERFORMANCE - GAO REVIEW 2. WHETHER CONTRACTOR PERFORMS CONTRACT WITH STAFF WITH REQUIRED TRAINING AND OTHERWISE IN ACCORDANCE WITH CONTRACT REQUIREMENTS CONCERNS CONTRACT ADMINISTRATION, WHICH GENERAL ACCOUNTING OFFICE DOES NOT REVIEW.

MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC.:

MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC. (MOTOROLA) PROTESTS THE AWARD OF A CONTRACT UNDER DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSALS (RFP) NO. F41687-87-R0024, TO DAILEY-WELLS COMMUNICATION (DAILEY -WELLS), A SMALL BUSINESS CONCERN.

WE DISMISS THE PROTEST.

THE RFP, ISSUED AS A PARTIAL SMALL BUSINESS SET-ASIDE, REQUESTED PROPOSALS FOR A CONTRACTOR TO MAINTAIN SPECIALIZED INTRA-BASE RADIOS, AND PROVIDED A PERFORMANCE WORK STATEMENT (PWS) DETAILING HOW THE WORK WAS TO BE ACCOMPLISHED. AS PART OF THE PWS, THE CONTRACTOR WAS REQUIRED TO CERTIFY IT WOULD PERFORM WITH FACTORY-CERTIFIED TECHNICIANS, THAT IS, TECHNICIANS CERTIFIED TO HAVE COMPLETED TRAINING MADE AVAILABLE BY THE MANUFACTURER.

MOTOROLA, THE RADIO MANUFACTURER AND AN OFFEROR UNDER THE RFP, ASSERTS THAT DAILEY-WELLS IS UNABLE TO COMPLY WITH THIS REQUIREMENT AND THUS IS NOT ELIGIBLE FOR AWARD BECAUSE ITS TECHNICIANS HAVE NOT RECEIVED CERTIFIED TRAINING FROM MOTOROLA, AND ALSO ASSERTS THAT DAILEY WELLS HAS FALSELY CERTIFIED ITS ABILITY TO COMPLY WITH THE PWS IN THIS REGARD.

MOTOROLA CONCLUDES THAT IT SUBMITTED THE ONLY ACCEPTABLE OFFER AND THUS IS ENTITLED TO THE ENTIRE CONTRACT AWARD. (MOTOROLA, A LARGE BUSINESS, ASSERTS THAT IT IS ELIGIBLE FOR THE SET-ASIDE PORTION OF THE CONTRACT BY VIRTUE OF ITS CERTIFICATION THAT IT WOULD SUBCONTRACT WITH A SMALL BUSINESS CONCERN.) WE DISAGREE.

THE PWS IN THE RFP DEFINES HOW AND BY WHOM THE CONTRACT WORK IS TO BE PERFORMED. THE RFP TERMS DO NOT REQUIRE THAT ALL OFFERORS HAVE CERTIFIED TECHNICIANS IN THEIR EMPLOY BUT, RATHER, REQUIRE ONLY THE "CONTRACTOR" TO SATISFY THIS REQUIREMENT. CONTRARY TO MOTOROLA'S ARGUMENT, MOREOVER, THE CERTIFICATION PROVISIONS REQUIRE THAT THE "CONTRACTOR" ESTABLISH ITS QUALIFICATIONS ONLY PRIOR TO THE "START DATE," THE DATE PERFORMANCE UNDER THE CONTRACT IS TO BEGIN, NOT THAT ALL OFFERORS MEET THIS REQUIREMENT IN THEIR PROPOSALS PRIOR TO THE CONTRACT AWARD DATE. THESE QUALIFICATION PROVISIONS THUS ARE PART OF THE CONTRACT PERFORMANCE PROVISIONS RATHER THAN PRECONDITIONS TO AWARD, AND DAILEY-WELLS WAS NOT REQUIRED TO SATISFY THESE PROVISIONS PRIOR TO AWARD. HETTICH GMGH AND CO., KG, B-224267, OCT. 24, 1986, 86-2 CPD PARA. 451; ACCENT GENERAL, INC., B-209263, JUNE 7, 1983, 83-1 CPD PARA. 616.

BY SUBMITTING A PROPOSAL THAT TOOK NO EXCEPTION TO THE REQUIREMENTS OF THE RFP, DAILEY-WELLS OBLIGATED ITSELF TO PROVIDE PERSONNEL POSSESSING THE NECESSARY QUALIFICATIONS, AND OTHERWISE TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE RFP. ITS PROPOSAL THEREFORE WAS ACCEPTABLE FOR AWARD. WHETHER DAILEY-WELLS ACTUALLY PERFORMS UNDER ITS CONTRACT WITH TECHNICIANS POSSESSING THE TRAINING REQUIRED BY THE RFP AND IN ACCORDANCE WITH OTHER CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION, WHICH WE DO NOT REVIEW. ACCENT GENERAL INC., B-209263, SUPRA.

AS WE HAVE NO BASIS ON WHICH TO OBJECT TO THE CONTRACT AWARD TO DAILEY- WELLS, IT IS UNNECESSARY FOR US TO CONSIDER MOTOROLA'S CONTENTION THAT IT IS ENTITLED TO THE CONTRACT AWARD ON THE SMALL BUSINESS SET-ASIDE PORTION OF THE RFP.

THE PROTEST IS DISMISSED.