Graves Construction, Inc., B-294032, June 29, 2004

B-294032 Jun 29, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Graves Construction, Inc. protests the award of a contract to The Krog Corporation under request for proposals No. DE-RP09-03SR22262, issued by the Department of Energy for the construction of a steel reinforced, concrete vault structure known as Glass Waste Storage Building No. 2 in Aiken, South Carolina. Graves contends that Krog was not eligible for award because, at the time of award, Krog was not a licensed contractor in South Carolina and was not registered in the Central Contractor Registration database. The protester also contends that Krog is not a qualified small business concern because of Krog's alleged improper affiliation with its large business teaming partner, and further maintains that the agency has acted in bad faith in various respects. We deny the protest. View Decision B-294032, Graves Construction, Inc., June 29, 2004 Decision Matter of: Graves Construction, Inc. File: B-294032 Date: June 29, 2004 William E. Guy for the protester. Joseph A. Lenhard, Esq., Department of Energy, for the agency. Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Solicitation provision calling on –contractor— to have specified state license establishes a general performance requirement, not a prerequisite for award. 2. Although agency failed to verify whether proposed awardee was registered in Central Contractor Registration (CCR) database prior to award as required by solicitation, protester was not prejudiced as a result given that, even if agency had been aware of the awardee's lack of registration prior to award, the Federal Acquisition Regulation expressly allows contracting agency to delay award until after the awardee has registered in the CCR database, and the record shows that the awardee in fact did register in the CCR database shortly after award. DECISION Graves Construction, Inc. protests the award of a contract to The Krog Corporation under request for proposals (RFP) No. DE-RP09-03SR22262, issued by the Department of Energy (DOE) for the construction of a steel'reinforced, concrete vault structure known as Glass Waste Storage Building No. 2 in Aiken, South Carolina. Graves contends that Krog was not eligible for award because, at the time of award, Krog was not a licensed contractor in South Carolina and was not registered in the Central Contractor Registration (CCR) database. The protester also contends that Krog is not a qualified small business concern because of Krog's alleged improper affiliation with its large business teaming partner, and further maintains that the agency has acted in bad faith in various respects. We deny the protest. The agency issued the subject solicitation on August 13, 2003 as a small business set-aside for the Glass Waste Storage Building No. 2 project, which required the –design, construction and acceptance testing of a facility for interim storage of [High Level Waste] glass canisters— at a site located in Aiken, South Carolina. RFP C.3. As it relates to this protest, the RFP stated that –Contractors shall be licensed in South Carolina— in accordance with –South Carolina Code of Laws, Title 40, Chapter 11.— RFP attach. J.5 I. In addition, the RFP incorporated various Federal Acquisition Regulation (FAR) clauses by reference, including FAR 52.204'7 –Central Contractor Registration,— which states in relevant part: –By submission of an offer, the offeror acknowledges the requirement that a prospective awardee shall be registered in the CCR database prior to award . . . .— FAR 52.204-7(b)(1). Four proposals were received by the RFP's closing date and award was ultimately made to Krog on March 29, 2004. On April 8, Graves filed an agency-level protest, which the agency dismissed on April 22.[1] Graves filed the instant protest on May 3, essentially raising the same issues it had raised in its agency protest. Principally, Graves contends that Krog's proposal should have been rejected as unacceptable because it did not satisfy the South Carolina licensing requirement quoted above and because Krog was not registered in the CCR database prior to award as required by FAR 52.204-7(b)(1).[2] Contrary to the protester's interpretation of the solicitation, compliance with the South Carolina license requirement was not a prerequisite for award. Rather, the solicitation merely required the –contractor— to be licensed in South Carolina. In this regard, the use of the term –contractor— generally indicates that the licensing requirement is a general performance requirement to be addressed by the successful awardee, post-award. Buckeye Park Servs., Inc., B-282282, Apr. 27, 1999, 99-1 CPD 88 at 2.