B-197347, B-197349, SEP 19, 1980

B-197347, B-197349, SEP 19, 1980

DIGEST: 1. PROTEST THAT CONTRACTOR IS NOT TECHNICALLY CAPABLE OF PERFORMING DUE TO SUBSTITUTION OF EMPLOYEES SUBSEQUENT TO AWARD IS NOT MATTER OF RESPONSIBILITY BUT, RATHER, CONCERNS PERFORMANCE UNDER CONTRACT, A MATTER NOT FOR CONSIDERATION UNDER BID PROTEST PROCEDURES. 2. PROTEST AGAINST ABSENCE OF WAGE DETERMINATION FROM SOLICITATION IS UNTIMELY SINCE OMISSION WAS APPARENT ON FACE OF SOLICITATION AND PROTEST WAS NOT FILED PRIOR TO CLOSING DATE FOR SUBMISSION OF PROPOSALS.

POTOMAC DOCUMENTATION AND DESIGN, INC.:

POTOMAC DOCUMENTATION AND DESIGN, INC. (POTOMAC) PROTESTS THE AWARD OF TWO CONTRACTS BY THE NAVAL SURFACE WEAPONS CENTER (NAVY), FOR CERTAIN DATA COLLECTION AND PROCESSING SERVICES, TO INTEGRATED BUSINESS METHODS, INC. (IBMI) UNDER REQUEST FOR PROPOSALS (RFP) NOS. N60921-80-R A029 AND N60921- 80-R-A034, ISSUED AS TOTAL SMALL BUSINESS SET-ASIDES. SINCE THESE PROTESTS INVOLVE SIMILAR CIRCUMSTANCES AND IDENTICAL ISSUES, BOTH WILL BE CONSIDERED IN THIS DECISION.

THE SOLICITATIONS CONTAINED A SECTION ENTITLED "TECHNICAL CAPABILITIES" SETTING FORTH THE GENERAL SKILLS REQUIRED TO PERFORM THE CONTRACT (E.G., "MAKING DETERMINATIONS AND JUDGMENTS TO DIFFERENTIATE BETWEEN THE TYPES OF DATA GENERATED"), AND A "DESCRIPTION/SPECIFICATIONS" SECTION DETAILING THE SPECIFIC TASKS ENTAILED IN PERFORMANCE (E.G., "RE-TYPE ILLEGIBLE COPIES OF THESE DOCUMENTS AS REQUIRED"). OFFERORS WERE REQUIRED TO SUBMIT A TECHNICAL PROPOSAL SUPPLEMENTED BY "COMPREHENSIVE RESUMES" OF EMPLOYEES TO BE INVOLVED IN PERFORMANCE OF THE CONTRACT. THE SOLICITATIONS ALSO CALLED FOR A 30-DAY TRAINING PERIOD PRIOR TO PERFORMANCE UNLESS EVIDENCE OF PREVIOUS TRAINING WAS SUBMITTED.

OFFERORS WERE TO BE RATED AS EITHER "CAPABLE" OR "NOT CAPABLE" OF SATISFYING THE TECHNICAL REQUIREMENTS AND PERFORMING THE WORK AS DESCRIBED. AWARD WAS TO BE MADE TO THE LOW, TECHNICALLY CAPABLE, RESPONSIBLE OFFEROR. ALL OFFERORS IN BOTH PROCUREMENTS WERE DETERMINED TO BE TECHNICALLY CAPABLE AND AWARD WAS MADE IN EACH INSTANCE TO IBMI, THE LOW OFFEROR, WHICH HAD ALSO BEEN FOUND RESPONSIBLE ON THE BASIS OF ITS PRIOR SATISFACTORY PERFORMANCE OF NAVY CONTRACTS.

POTOMAC CONTENDS THAT THE NAVY'S FINDING OF IBMI'S TECHNICAL CAPABILITY WAS RENDERED IMPROPER SUBSEQUENT TO THE AWARD, WHEN THAT FIRM HIRED TWO ADDITIONAL EMPLOYEES TO PERFORM PORTIONS OF THE SUBJECT CONTRACTS. SPECIFICALLY, POTOMAC ASSERTS THAT THE NAVY'S FAILURE TO EVALUATE THE CAPABILITIES OF THESE NEW EMPLOYEES CONSTITUTED A MISAPPLICATION OF THE CRITERIA IN THE "TECHNICAL CAPABILITIES" AND "DESCRIPTION/SPECIFICATIONS" SECTIONS OF THE RFPS WHICH, IT URGES, WERE DEFINITIVE RESPONSIBILITY CRITERIA. THE PROTESTER SUGGESTS THAT IBMI IS NOT TECHNICALLY CAPABLE OF PERFORMING THE CONTRACT WITH ITS NEW PERSONNEL. THE REMEDY REQUESTED IS CANCELLATION OF THE CONTRACT WITH IBMI AND AN AWARD TO POTOMAC AS THE REMAINING LOW, TECHNICALLY CAPABLE, RESPONSIBLE OFFEROR.

"RESPONSIBILITY," AS EMPLOYED IN FEDERAL PROCUREMENTS, REFERS TO AN OFFEROR'S ABILITY OR CAPACITY TO PERFORM ALL OF THE CONTRACT REQUIREMENTS WITHIN THE LIMITATIONS PRESCRIBED BY THE SOLICITATION. WERNER-HERBISON- PADGETT, B-195956, JANUARY 23, 1980, 80-1 CPD 66. A RESPONSIBILITY DETERMINATION IS NECESSARILY INVOLVED IN A PROCURING AGENCY'S AWARD DECISION, AMERICAN MUTUAL PROTECTIVE BUREAU, B-194953, JUNE 21, 1979, 79-1 CPD 447, AND OBJECTIONS TO AN AWARD ON THE GROUND THAT THE SUCCESSFUL OFFEROR IS INCAPABLE OF PERFORMING ORDINARILY RELATE TO THE ISSUE OF RESPONSIBILITY. DUMONT OSCILLOSCOPE LABORATORIES, INC., B-195113, OCTOBER 24, 1979, 79-2 CPD 286.

HERE, HOWEVER, POTOMAC DOES NOT CONTEND THAT THE NAVY'S ORIGINAL DETERMINATION OF IBMI'S RESPONSIBILITY WAS INCORRECT OR IMPROPER; IT ASSERTS THAT IBMI BECAME NONRESPONSIBLE BECAUSE NEW EMPLOYEES WERE SUBSTITUTED AFTER AWARD. THIS IS NOT A QUESTION OF RESPONSIBILITY, BUT, RATHER, CONCERNS IBMI'S PERFORMANCE UNDER THE CONTRACT, A MATTER NOT FOR CONSIDERATION UNDER OUR BID PROTEST PROCEDURES. 4 C.F.R. PART 20 (1980). SEE PREVENTIVE HEALTH PROGRAMS, B-195846, FEBRUARY 20, 1980, 80-1 CPD 144. WE DO NOTE THAT THE MERE SUBSTITUTION OF EMPLOYEES DOES NOT APPEAR TO BE IMPROPER UNDER THE TERMS OF THE CONTRACT.

POTOMAC ALSO MAINTAINS THAT THE SOLICITATIONS WERE FATALLY DEFECTIVE SINCE NEITHER CONTAINED A WAGE DETERMINATION AS REQUIRED UNDER THE SERVICE CONTRACT ACT AND DEFENSE ACQUISITION REGULATION (DAR) SEC. 7 1903.41(A) (1976 ED.) OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS AGAINST ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR SUBMISSION OF PROPOSALS, BE FILED PRIOR TO THAT DATE. C.F.R. 20.2(B)(1) (1980). WE HAVE HELD THAT THE OMISSION OF SERVICE CONTRACT ACT PROVISIONS FROM A SOLICITATION CONSTITUTES A DEFECT APPARENT FROM THE FACE OF THE SOLICITATION. A.C.E.S., INC., B-182720, FEBRUARY 13, 1975, 75-1 CPD 97. HERE, DECEMBER 13 AND DECEMBER 19, 1979 WERE THE DEADLINES SET FOR SUBMISSION OF PROPOSALS AND POTOMAC'S PROTESTS WERE NOT FILED UNTIL JANUARY 4, 1980, FOLLOWING AWARD OF THE CONTRACTS TO IBMI. CONSEQUENTLY, THIS ASPECT OF THE PROTESTS IS UNTIMELY. IN ANY EVENT, THE NAVY REPORTS THAT IT WAS ADVISED BY THE DEPARTMENT OF LABOR THAT NO WAGE DETERMINATION IN EFFECT WAS APPLICABLE TO THE LOCALITY AND CLASSES OF EMPLOYEES INVOLVED HERE.

THE PROTESTS ARE DISMISSED.