B-229642, Mar 29, 1988, 88-1 CPD 316

B-229642: Mar 29, 1988

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Unacceptable offeror is an interested party under the Bid Protest Regulations to protest that only other offeror's proposal should not have been accepted under a request for proposals. Request for proposals (RFP) requirement that contractor's employees have a particular license is not a definitive responsibility criterion. Mary's proposal should therefore have been rejected. Because Cumberland's proposal was unacceptable inasmuch as it contained ambiguous pricing instead of a firm- fixed price as required by the RFP. /1/ Bid Protest Regulations. An offeror who submits an unacceptable offer is not an interested party to object to the award to another offeror. It is nevertheless an interested party to protest where it alleges that the only other offers or bids are unacceptable or nonresponsive.

B-229642, Mar 29, 1988, 88-1 CPD 316

PROCUREMENT - Contractor Qualification - Licenses - Determination Time Periods DIGEST: 1. Unacceptable offeror is an interested party under the Bid Protest Regulations to protest that only other offeror's proposal should not have been accepted under a request for proposals. PROCUREMENT - Bid Protests - GAO Procedures - Interested Parties 2. Request for proposals (RFP) requirement that contractor's employees have a particular license is not a definitive responsibility criterion, where the RFP does not indicate that the license must be obtained prior to award and does not require offerors to identify the employees in their proposals.

Cumberland Sound Pilots Association:

Cumberland Sound Pilots Association protests the award of a firm, fixed- price contract to the St. Mary's Entrance Federal Pilots Association by the Naval Supply Center, Charleston, South Carolina, pursuant to request for proposals (RFP) No. N00612-87-R-K021, for vessel pilotage services for the submarine base at Kings Bay, Georgia. St. Mary's intended to employ for performance on this licensing requirements of the RFP and that St. Mary's proposal should therefore have been rejected.

We dismiss the protest.

The Navy argues that Cumberland's protest should be dis- missed as not filed by an "interested party", because Cumberland's proposal was unacceptable inasmuch as it contained ambiguous pricing instead of a firm- fixed price as required by the RFP. /1/ Bid Protest Regulations, 4 C.F.R. Secs. 21.0(a) and 21.1(a) (1987). We disagree with this basis for dismissal but do conclude that Cumberland's protest should be dismissed for another reason.

As a general rule, an offeror who submits an unacceptable offer is not an interested party to object to the award to another offeror. Cheshire/Xerox; Miller/Bevco; Automecha, Ltd., B-226939 et al., Aug. 31, 1987, 87-2 CPD Para. 208. However, where a bidder has submitted an unacceptable bid, it is nevertheless an interested party to protest where it alleges that the only other offers or bids are unacceptable or nonresponsive, since the protester would be eligible to compete for award under a resolicitation if the protest is sustained. Singleton Contracting Corp., B-211259, Aug. 29, 1983, 83-2 CPD Para. 270.

In this case, the only proposals submitted in response to the RFP were those of Cumberland and St. Mary's. Consequently, even though Cumberland's proposal was unacceptable, Cumberland is an interested party to protest that the only other offeror's proposal should also be rejected, since if Cumberland's protest has merit the remedy would be to resolicit or reopen negotiations. Contrast Conrac Corp., BCD Division, 66 Comp.Gen. ***, B-225646, May 11, 1987, 87-1 CPD Para. 497 (cited by the Navy), where an unacceptable offeror was found not to be an interested party to protest that the awardee's proposal was unacceptable since there was another offeror whose acceptability was not protested. 1987, 87-1 CPD Para. 489 at 3. Consequently, Cumberland is an interested party to protest that St. Mary's proposal should not have been accepted.

However, Cumberland's protest essentially concerns the Navy's affirmative determination that St. Mary's was a responsible contractor, that is, Cumberland asserts that St. Mary's does not have the capability to meet the contract requirements. We will not review such a determination absent a showing that it was made fraudulently or in bad faith or that definitive responsibility criteria in the solicitation were not net. 4 C.F.R. Sec. 21.3(f)(5); W. H. Smith Hardware Co., B-228576, Feb. 4, 1988, 88-1 CPD Para. ***.

In this case, Cumberland has not shown that the determination that St. Mary's was responsible was fraudulent or in bad faith. Instead, Cumberland argues that St. Mary's will not comply with the requirements in paragraph H-300 of the RFP, which it alleges constitutes a definitive responsibility criterion. Paragraph H-300 states: "The contractor's pilots shall hold a current Coast guard license as a first class pilot with a route extension for the waters including the St. Mary's entrance Channel to the Naval Submarine Base, Kings Bay, Ga. harbor." Cumberland explains that one of the pilots which St. Mary's intended to use under the contract does not have the requisite license, nor could he have obtained this license in time for contract performance.

Definitive responsibility criteria are objective standards established by a contracting agency to measure a bidder's or offeror's ability to perform the contract, as stated in certain specific qualitative and quantitive qualification requirements contained in a solicitation. W. H. Smith Hardware Co., B-228576, supra. Such criteria do not involve the offeror's performance obligations under the contract. Id. Where, ass here, a solicitation requires the contractor to obtain a specific license, but does not indicate that the license must be obtained prior to award, the contractor may obtain the license after award. Al Johnson Reforestry, B-227545, Oct. 9, 1987, 87-2 CPD Para. 348. Such criteria do not constitute definitive responsibility criteria.

With respect to this procurement, the requirement that the "contractor's" pilots have a particular Coast Guard license is merely part of the contract's performance requirements and does not establish any precondition for award. The RFP did not even require that offerors identify in their proposals the pilots they intended to employ to satisfy the contract requirements.

Consequently, since no definitive responsibility criteria are involved in Cumbetland's protest, its protest of the Navy's affirmative determination that St. Mary's is responsible is dismissed. 4 C.F.R. Sec. 21.3(f)(5).

/1/ Although the protester disagrees with the Navy's position that it did not offer a firm-fixed price, our review of the record indicates that the RFP required firm-fixed prices, and that although the protester was advised during discussions of its ambiguous pricing, it did not quote a fixed price in its best and final offer. Consequently, the Navy reasonably concluded that Cumberlands's proposal was unacceptable.