B-215892, OCT 1, 1984, 84-2 CPD 374

B-215892, OCT 1, 1984, 84-2 CPD 374

CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - DEFINITIVE RESPONSIBILITY CRITERIA DIGEST: 1. SPECIFICATION REQUIRING PILOT TO MEET SPECIFIC CERTIFICATION REQUIREMENTS AND TO PROVIDE, WITH THE PROPOSAL, EVIDENCE OF COMPLIANCE ESTABLISHES DEFINITIVE RESPONSIBILITY CRITERIA AND GAO WILL REVIEW PROTEST THAT CONTRACTING OFFICER FAILED TO APPLY THIS CRITERIA TO THE AWARDEE. CONTRACTORS - RESPONSIBILITY - DETERMINATION - DEFINITIVE RESPONSIBILITY CRITERIA - COMPLIANCE 2. CONTRACTING OFFICER PROPERLY FOUND AWARDEE MET DEFINITIVE RESPONSIBILITY CRITERIA WHERE AWARDEE POSSESSES CANADIAN GOVERNMENT PERMIT AND OBTAINING THIS PERMIT MEANT THAT THE PROPOSER HAD TO MEET

AERO SYSTEMS, INC.:

AERO SYSTEMS, INC. (AERO), PROTESTS THE AWARD OF AN AIR-TAXI SERVICE CONTRACT TO KENN BOREK AIR LTD. (BOREK) UNDER THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA) REQUEST FOR PROPOSALS (RFP) NO. WASC 84- 001-841. AERO ALLEGES THAT BOREK FAILED TO MEET THE RFP'S CERTIFICATION REQUIREMENTS AND, THEREFORE, WAS NOT QUALIFIED TO RECEIVE THE CONTRACT AWARD.

AS A CONDITION OF AWARD, SECTION "C," PARAGRAPH 5, OF THE RFP PROVIDED:

"PILOT AND/OR CO-PILOT . . . SHALL MEET ALL REQUIREMENTS OF THE OPERATORS FAR 135 CERTIFICATE . . .. THE CONTRACTOR SHALL SUBMIT PILOT'S QUALIFICATIONS STATEMENT FOR ALL PILOTS THAT MAY BE UTILIZED UNDER THIS CONTRACT. INFORMATION FROM THESE STATEMENTS WILL BE USED IN EVALUATING THE PILOTS QUALIFICATIONS. ONLY THOSE INDIVIDUALS WHOSE PAST EXPERIENCE CAN BE VERIFIED WILL BE CONSIDERED FOR USE ON THIS CONTRACT."

AERO'S PROTEST THAT BOREK DOES NOT HOLD A FEDERAL AVIATION REGULATION (FAR) 135 OPERATOR'S CERTIFICATE AND IS, THEREFORE, INELIGIBLE TO RECEIVE A CONTRACT AWARD CONCERNS THE CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION THAT BOREK IS A RESPONSIBLE FIRM. SEE U.S. JET AVIATION, B-214093, MAY 25, 1984, 84-1 CPD PARA. 575. THIS OFFICE WILL REVIEW A PROTEST AGAINST A CONTRACTING OFFICER'S AFFIRMATIVE FINDING THAT A FIRM IS RESPONSIBLE WHERE THE PROTESTER ALLEGES THAT, IN MAKING THAT DETERMINATION, THE CONTRACTING OFFICER FAILED TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA. KING-FISHER COMPANY, B-205003, JUNE 16, 1982, 82-1 CPD PARA. 592. WE FIND THAT THE RFP ESTABLISHED DEFINITIVE RESPONSIBILITY CRITERIA SINCE IT ENUNCIATED SPECIFIC AND OBJECTIVE FACTORS WITH WHICH PILOTS HAD TO COMPLY AND REQUIRED OFFERORS TO SUBMIT, BEFORE CONTRACT AWARD, EVIDENCE THAT THE PILOTS AND/OR CO-PILOTS THEY INTENDED TO UTILIZE IN PERFORMING THE NOAA CONTRACT MET THESE REQUIREMENTS. SEE ID.; E.C. CAMPBELL, INC., B-204253, FEB. 2, 1982, 82-1 CPD PARA. 76. THUS, WE WILL REVIEW AERO'S PROTEST TO DETERMINE IF THE CONTRACTING OFFICER APPLIED THE REQUIREMENTS OF THE RFP IN DETERMINING BOREK TO BE RESPONSIBLE.

NOAA FIRST ASSERTS THAT, CONTRARY TO AERO'S POSITION, THE RFP DID NOT REQUIRE THE PILOT TO HOLD AN OPERATOR'S FAR 135 CERTIFICATE, BUT ONLY TO MEET THE REQUIREMENTS OF THE CERTIFICATE. IN THIS REGARD, NOAA REPORTS THAT BOREK, A CANADIAN COMPANY, HOLDS A PERMIT GRANTED BY THE CANADIAN LICENSING AUTHORITY WHICH IS THE EQUIVALENT OF THE FAR 135 CERTIFICATE. NOAA THUS CONCLUDES THAT IT PROPERLY DETERMINED THAT BOREK IS A RESPONSIBLE FIRM.

INSOFAR AS AERO ASSERTS THAT THE RFP REQUIRED OFFERORS TO HOLD AN OPERATOR'S FAR 135 CERTIFICATE, WE BELIEVE THAT NOAA'S POSITION, SUPPORTED BY THE SPECIFICATION'S EXACT LANGUAGE THAT OFFERORS ONLY HAD TO MEET THE REQUIREMENTS OF THE CERTIFICATE, IS REASONABLE. SEE KING FISHER COMPANY, B-205003, SUPRA. IN ANY EVENT, AN AGENCY MAY FIND THAT AN OFFEROR MEETS DEFINITIVE RESPONSIBILITY CRITERIA WHERE THE OFFEROR DOES NOT MEET THE PRECISE CRITERIA, BUT HAS CLEARLY DEMONSTRATED THAT IT HAS EQUIVALENT CAPABILITY. HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC COMPANY, 55 COMG.GEN. 1051, 1056 (1976), 76-1 CPD PARA. 294; SILLCO, INC., B-188026, APR. 29, 1977, 77-1 CPD PARA. 296. THUS, SINCE AERO HAS NOT SHOWN THAT BOREK'S CANADIAN LICENSE IS NOT EQUIVALENT TO A FAR 135 CERTIFICATE, WE HAVE NO BASIS TO OBJECT TO NOAA'S DETERMINATION THAT BOREK MET THE DEFINITIVE RESPONSIBILITY CRITERIA.

THE PROTEST IS DENIED.