B-206531, JUN 1, 1982

B-206531: Jun 1, 1982

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CAIN CONTENDS THAT THE AWARD IS IMPROPER BECAUSE CP LACKED THE NECESSARY TRUCKS. PROVISIONS WHICH STATE HOW THE WORK IS TO BE ACCOMPLISHED ARE PERFORMANCE REQUIREMENTS WHICH ARE DISTINGUISHABLE FROM REQUIREMENTS WHICH ARE PRECONDITIONS OF AWARD. COMPLIANCE WITH WHICH IS A NECESSARY PREREQUISITE TO AWARD. ARE DEFINITIVE RESPONSIBILITY CRITERIA. THE ARMY POINTS OUT THAT THERE IS NO REQUIREMENT THAT THE CONTRACTOR HAVE AND MAINTAIN SUCH FACILITIES - ONLY THAT THE CONTRACTOR BE ABLE TO OBTAIN THEM IF REQUIRED. WE ARE DISMISSING THE PROTEST. THE PROTEST IS DISMISSED.

B-206531, JUN 1, 1982

DIGEST: GAO DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT CIRCUMSTANCES NOT PRESENT HERE.

CAIN BROTHERS, INC.:

CAIN BROTHERS, INC. (CAIN), PROTESTS THE ARMY'S AWARD OF A CONTRACT FOR PACKING AND CRATING SERVICES TO CONSULTORES PANAMERICANOS, S. A. (CP), UNDER REQUEST FOR PROPOSALS NO. DAKF71-82-R-0241 ISSUED BY THE CONTRACTING DIVISION, 193D INFANTRY BRIGADE, PANAMA. CAIN CONTENDS THAT THE AWARD IS IMPROPER BECAUSE CP LACKED THE NECESSARY TRUCKS, PERSONNEL, AND STORAGE FACILITIES CALLED FOR IN THE SOLICITATION.

THIS OFFICE DOES NOT REVIEW PROTESTS INVOLVING AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT AN ALLEGATION OF FRAUD ON THE PART OF PROCURING OFFICIALS OR AN ALLEGATION THAT THE PROCURING AGENCY HAS FAILED TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA SET OUT IN THE SOLICITATION. UNITRON ENGINEERING CO., B-185175, APRIL 7, 1976, 76-1 CPD 231.

PROVISIONS WHICH STATE HOW THE WORK IS TO BE ACCOMPLISHED ARE PERFORMANCE REQUIREMENTS WHICH ARE DISTINGUISHABLE FROM REQUIREMENTS WHICH ARE PRECONDITIONS OF AWARD. CONTRA COSTRA ELECTRIC, INC., B-190916, APRIL 5, 1978, 78-1 CPD 268. ONLY PROVISIONS WHICH ESTABLISH SPECIFIC AND OBJECTIVE RESPONSIBILITY CRITERIA, COMPLIANCE WITH WHICH IS A NECESSARY PREREQUISITE TO AWARD, ARE DEFINITIVE RESPONSIBILITY CRITERIA. BARANELLO AND SONS, 58 COMP.GEN. 509 (1979), 79-1 CPD 322.

THE SOLICITATION ONLY MENTIONS TRUCKS IN ONE SECTION WHICH GENERALLY DESCRIBES THE TYPE OF TRUCKS TO BE USED WHEN MOVING FURNITURE AS OPPOSED TO CONTAINERIZED PERSONAL PROPERTY. WITH REGARD TO PERSONNEL, THE SOLICITATION GENERALLY REQUIRES THAT THE "LABOR EMPLOYED *** SHALL BE COMPETENT" AND THAT PICKUP AND DELIVERY CREWS INCLUDED AT LEAST ONE EMPLOYEE "QUALIFIED TO SPEAK, READ, AND WRITE ENGLISH." WE DO NOT VIEW THESE REQUIREMENTS AS DEFINITIVE CRITERIA OF RESPONSIBILITY, BUT RATHER AS PERFORMANCE REQUIREMENTS.

ALTHOUGH THE SOLICITATION PROVIDES LINE ITEMS FOR STORAGE AND WAREHOUSE HANDLING AND THE SOLICITATION SPECIFIES MINIMUM QUALIFICATIONS FOR A CONTRACTOR'S WAREHOUSE, THE ARMY POINTS OUT THAT THERE IS NO REQUIREMENT THAT THE CONTRACTOR HAVE AND MAINTAIN SUCH FACILITIES - ONLY THAT THE CONTRACTOR BE ABLE TO OBTAIN THEM IF REQUIRED.

SINCE CAIN HAS NOT ALLEGED FRAUD AND THE SOLICITATION LACKS ANY DEFINITIVE RESPONSIBILITY CRITERIA, WE ARE DISMISSING THE PROTEST.

THE PROTEST IS DISMISSED.

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