HAP Construction, Inc., B-278515, February 9, 1998

B-278515 Feb 09, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST General licensing requirement is a performance requirement. Protest that awardee did not satisfy various definitive experience criteria is denied where record establishes that the contracting officer had a reasonable basis for concluding that criteria were met prior to award. Was amended four times. In the "Foreword" to the solicitation the estimated "cost range" of the project was listed as $1. Its subcontractor to have at least 5 years experience as a "licensed contractor" in asbestos remediation. To have completed in the last 5 years at least three asbestos remediation projects of similar magnitude to the current project. Thirteen bids were received ranging from NESC's low bid of $1. View Decision Matter of: HAP Construction, Inc. File: B-278515 Date: February 9, 1998 DIGEST Attorneys DECISION HAP Construction, Inc. protests the award of a contract to National Environmental Services Corporation (NESC) under invitation for bids (IFB) No. 1425-97-S1-81-90001, issued by the Bureau of Reclamation, Department of the Interior, for certain demolition and construction work in the United States Virgin Islands. HAP principally contends that NESC did not satisfy various definitive responsibility criteria set forth in the solicitation. We deny the protest. BACKGROUND The IFB, issued on March 6, 1997, was amended four times, and opening occurred on July 1. The specifications called for the removal of a catchment basin, the demolition of a hotel complex, and the replacement of a dock at Water Island in the Virgin Islands. In the "Foreword" to the solicitation the estimated "cost range" of the project was listed as $1,000,001 to $5,000,000. Section I.66 of the IFB set forth the clause contained in Federal Acquisition Regulation (FAR) Sec. 52.236-7, entitled "Permits and Responsibilities," which provides in pertinent part: "The Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work." The clause goes on to list various other contractor obligations during the performance of the contract. In addition, IFB section M.2 (a), entitled "Additional Definitive Responsibility Criteria--Bureau of Reclamation," required each offeror or, if applicable, its subcontractor to have at least 5 years experience as a "licensed contractor" in asbestos remediation, hazardous material remediation and in building demolition. Further, the clause required each offeror (or subcontractor), to have completed in the last 5 years at least three asbestos remediation projects of similar magnitude to the current project; at least three hazardous remediation projects, with multiple waste streams, of similar magnitude to this project; and at least three building demolition projects of similar magnitude to this project. Thirteen bids were received ranging from NESC's low bid of $1,135,659 to the high bid of $4,537,989; HAP's bid of $3,222,027 was eleventh low. NESC proposed Lepi Enterprises, Inc. as its asbestos removal subcontractor, and proposed to do the hazardous materials work and the building demolition work itself. This protest was filed on October 30 and award was made to NESC on November 26. PROTEST AND ANALYSIS HAP's protest consists of three sets of allegations: (1) neither NESC nor Lepi possessed valid Virgin Island licenses necessary to perform the contract prior to award; (2) neither NESC nor Lepi met the definitive experience requirements set forth in Section M.2(a); and (3) the agency treated HAP unfairly. [1] Licenses HAP argues that possession of valid Virgin Islands licenses was a definitive responsibility criterion which was required to be satisfied prior to award. The protester further alleges that neither NESC nor Lepi had valid Virgin Islands licenses before the November 26 award date and, therefore, they were ineligible for award. Notwithstanding HAP's understanding to the contrary, the IFB did not require that the bidders provide evidence of licensing with their bids, rather the IFB simply used standard FAR language calling for compliance with any applicable licensing requirements during the performance of the contract. A general requirement such as this to comply with federal, state or local laws and to obtain necessary local licenses does not itself render the requirement a definitive responsibility criterion even if local statutes require licenses as a precondition to submitting a bid. International Serv. Assocs., Inc., B-253050, Aug. 4, 1993, 93-2 CPD Para. 82 at 3-4. Rather, the requirement is a performance requirement which may be satisfied during contract performance and does not affect the decision to award except as a general responsibility matter. Id.; Restec Contractors, Inc., B-245862, Feb.