M&M Welding & Fabricators, Inc.--Reconsideration

B-271750.2 Mar 26, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST General Accounting Office (GAO) will not consider. Arguments that could have been. Were not. Definitive responsibility criteria are specific and objective standards established by an agency for use in a particular procurement to measure a bidder's ability to perform the contract. The agency initially took the position that each qualification was a definitive responsibility criterion. Was not a definitive responsibility criterion because it was not a specific and objective standard. [1] We agreed with the agency. The requirement that a bidder be "regularly engaged in the business" merely advises potential bidders that past performance will be considered in deciding whether the contractor has the capacity to perform in a satisfactory manner. View Decision Matter of: M&M Welding & Fabricators, Inc.--Reconsideration File: B-271750.2 Date: March 26, 1997 DIGEST Attorneys DECISION M&M Welding & Fabricators, Inc. requests that we reconsider our decision in M&M Welding & Fabricators, Inc., B-271750, July 24, 1996, 96-2 CPD Para. 37, in which we denied its protest of the award of a contract to American Combustion Industries, Inc. (ACI) under invitation for bids (IFB) No. 9639, issued by the Architect of the Capitol for the retubing of one or more coal/gas-fired boilers in the United States Capitol Power Plant. We deny the request for reconsideration. The solicitation included the following Qualification of Bidders; paragraph: "Firms shall be regularly engaged in the installation and service of coal/gas-fired boilers. Each bidder shall furnish a list of not less than three (3) similar boiler rehabilitation projects (at least one of which must be a steam boiler) completed satisfactorily by the Contractor during the past five (5) years. . . ." The agency determined that ACI, the apparent low bidder, met the IFB's qualifications, and awarded the firm the contract. M&M protested that the agency had unreasonably determined that ACI satisfied the solicitation's definitive responsibility criteria. Definitive responsibility criteria are specific and objective standards established by an agency for use in a particular procurement to measure a bidder's ability to perform the contract. Federal Acquisition Regulation Sec. 9.104-2. These special standards of responsibility limit the class of bidders to those meeting specified qualitative and quantitative qualifications necessary for adequate contract performance. Topley Realty Co., Inc., 65 Comp.Gen. 510 (1986), 86-1 CPD Para. 398. During our initial consideration of the protest, both the agency and M&M divided the qualification of bidders paragraph into two qualifications: first, regular engagement in the installation and service of coal/gas-fired boilers; and, second, a listing of not less than three similar boiler rehabilitation projects. The agency initially took the position that each qualification was a definitive responsibility criterion, but subsequently shifted its view to maintain that the first qualification--regular engagement in the installation and service of coal/gas-fired boilers--was not a definitive responsibility criterion because it was not a specific and objective standard. [1] We agreed with the agency. The requirement that a bidder be "regularly engaged in the business" merely advises potential bidders that past performance will be considered in deciding whether the contractor has the capacity to perform in a satisfactory manner. Rolen-Rolen-Roberts Int'l; Rathe Prods., Inc./Design Prod., Inc., B-218424 et al., Aug. 1, 1985, 85-2 CPD Para. 113; E.J. Murray Co., Inc.; W.M. Schlosser Co., Inc., B-212107; B-212107.2, Mar. 16, 1984, 84-1 CPD Para. 316. Such a requirement does not set out a specific, objective standard measuring the bidder's ability to perform; rather, the provision expresses in general terms a factor which is encompassed by the contracting officer's subjective responsibility determination. [2] Our Bid Protest Regulations preclude us from reviewing a contracting officer's affirmative responsibility determination absent a showing of possible bad faith on the part of government officials or that a definitive responsibility criterion was not met. 4 C.F.R. Sec. 21.5(c) (1996). Since these circumstances were not present here, we did not consider M&M's allegations with respect to this aspect of the qualification provision. In its request for reconsideration, M&M argues that we made a material error of law in determining that the requirement to be "regularly engaged definitive responsibility criterion.