3DAV Development, Inc.; San Sebastian Shopping Center, S.E.

3DAV Development, Inc.; San Sebastian Shopping Center, S.E. BNUMBER: B-274933.2; B-274933.5; B-274933.6 DATE: January 16, 1997 TITLE: 3DAV Development, Inc.; San Sebastian Shopping Center, S.E. ********************************************************************** Matter of:3DAV Development, Inc.; San Sebastian Shopping Center, S.E. File: B-274933.2; B-274933.5; B-274933.6 Date:January 16, 1997 Charles E. DeWitt, Jr., Esq., and Daniel J. Moynihan III, Esq., for 3DAV Development, Inc.; and Jose M. Biaggi Landron, Esq., for San Sebastian Shopping Center, S.E., for the protesters. Douglas L. Fox, Esq., Shumway, Giguere, Byrne, Fox & Aloise, for N.E.D.A. Development Corporation, the intervenor. Jane S. Converse, Esq., Philip Kauffman, Esq., and Phillipa L. Anderson, Esq., for the Department of Veterans Affairs, for the agency. Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Information relating to offerors' ability to perform contract is a matter of responsibility and not related to the technical acceptability of proposals and, even though solicitation required submission of information with proposals, requirements that relate to responsibility may be satisfied at any time prior to award. DECISION 3DAV Development Inc. and San Sebastian Shopping Center (SSSC), S.E. protest the award of a lease to N.E.D.A. Development Corporation under solicitation for offers (SFO) No. 184B-02A-95, issued by the Department of Veterans Affairs (VA) for an outpatient clinic in Ponce, Puerto Rico. The protesters contend that award was improper because N.E.D.A. did not include with its proposal evidence of site "ownership or control" as required by the SFO. We deny the protests. At issue is section 3.21 of the SFO, entitled "EVIDENCE OF CAPABILITY TO PERFORM PRIOR TO AWARD," which called for offerors to include with their proposals certain information, including "evidence of ownership or control of [the] site" proposed. In response, N.E.D.A. submitted a letter, written in Spanish, from the "Administracion de Terrenos, Estado Libre Asociado de Puerto Rico," (hereinafter the Land Administration). The letter references "Lot #37 Multedo Estrella Land, Ponce, P.R., V.A. Outpatient Clinic," the tract of land where N.E.D.A. offered to construct a new building. To that document, N.E.D.A. attached what it described as an English translation of the Land Administration's letter.[1] The protesters contend that N.E.D.A.'s letter is not sufficient evidence of ownership or control of the site it proposed and, as such, the VA should have rejected N.E.D.A.'s proposal as technically unacceptable. We disagree with the protesters' premise that compliance with the SFO's "ownership or control" provision concerns the acceptability of N.E.D.A.'s proposal. Ownership or control of the proposed site was not listed in the SFO as a selection criterion or evaluation factor. In this regard, this case is distinguishable from W.D.C. Realty Corp., 66 Comp. Gen. 302 (1987), 87-1 CPD para. 248, where the solicitation stated that, for evaluation purposes, certain technical data were "required as a minimum submission for consideration" of proposals, including "evidence of site ownership or access to ownership through held options." In that case, since the solicitation specifically stated that this information was required as a precondition for considering the proposals for award, we concluded that the requirement was related to the technical acceptability of proposals. By contrast here, the SFO simply required offerors to submit evidence of site ownership or control, along with other type of information such as evidence of financial resources; construction team qualifications, including licenses or certifications of the firms providing architectural and engineering design services; and evidence of compliance with local zoning laws. This information relates to the ability of the successful offeror to perform the contract rather than to whether the offer is acceptable and, therefore, is a matter of responsibility. NFI Management Co., 69 Comp. Gen. 515 (1990), 90-1 CPD para. 548; SDA, Inc.--Recon., B-249386.2, Aug. 26, 1992, 92-2 CPD para. 128. In fact, the SFO warned that "FAILURE TO MEET ANY OR ALL OF THE REQUIREMENTS SET FORTH IN PARAGRAPH [3.21] . . . SHALL BE A BASIS FOR A DETERMINATION OF NON-RESPONSIBILITY . . . ," indicating that the agency intended to use the information submitted in response to section 3.21 of the SFO to assess responsibility, and not as a precondition to considering the proposals or to determine the technical acceptability of proposals. In awarding the lease to N.E.D.A., the agency necessarily determined that the firm was a capable and responsible contractor. Mitel, Inc., B-270138, Jan. 17, 1996, 96-1 CPD para. 36 at 4.