Barker & Barker Paving

B-412428 Feb 09, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Gaver Industries, Inc., dba Barker & Barker Paving, of Bethlehem, Pennsylvania, protests the award of a contract to aEONRG, LLC, of Downingtown, Pennsylvania, under invitation for bids (IFB) No. VA244-15-B-1277, issued by the Department of Veterans Affairs (VA) for asphalt paving repairs at the Lebanon VA Medical Center (VAMC), Lebanon, Pennsylvania. Gaver argues that the agency's evaluation of aEONRG's responsibility, as well as the responsiveness of the awardee's bid, were improper. We dismiss the protest. We dismiss the protest. View Decision Decision Matter of:  Gaver Industries, Inc., dba Barker & Barker Paving File:  B-412428 Date:  February 9, 2016 Christian M. Perrucci, Esq., and Deepak Sharma, Esq., Florio Perrucci Steinhardt & Fader, LLC, for the protester. Jennifer L. Hedge, Esq., Department of Veterans Affairs, for the agency. Louis A. Chiarella, Esq., and Nora K. Adkins, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1.  Protest challenging contracting officer’s affirmative determination of responsibility is dismissed where the assertion on which the protest is based does not constitute the type of allegation that triggers Government Accountability Office (GAO) review of affirmative responsibility determinations under GAO’s Bid Protest Regulations. 2.  Protest challenging bid as nonresponsive is dismissed where the nonconformance alleged by the protester was not a requirement of the solicitation. DECISION Gaver Industries, Inc., dba Barker & Barker Paving, of Bethlehem, Pennsylvania, protests the award of a contract to aEONRG, LLC, of Downingtown, Pennsylvania, under invitation for bids (IFB) No. VA244-15-B-1277, issued by the Department of Veterans Affairs (VA) for asphalt paving repairs at the Lebanon VA Medical Center (VAMC), Lebanon, Pennsylvania.  Gaver argues that the agency’s evaluation of aEONRG’s responsibility, as well as the responsiveness of the awardee’s bid, were improper. We dismiss the protest. BACKGROUND The IFB, issued on August 25, 2015, as a service-disabled, veteran-owned, small business (SDVOSB) set-aside, contemplated the award of a fixed-price contract for the paving repair of the front drive and various parking lots at the Lebanon VAMC.  In general terms, the contractor was required to provide all labor, material, equipment, and resources necessary to complete the specified repairs.[1]  IFB at 1. Relevant to the protest here, the IFB included Veterans Affairs Acquisition Regulation (VAAR) clause 852.236-72 (Performance of Work by the Contractor).  IFB at 35.  VAAR clause 852.236-72 is a supplement to Federal Acquisition Regulation (FAR) clause 52.236-1 (Performance of Work by the Contractor), which is inserted into a solicitation by the contracting officer to specify the percentage of work to be performed by the contractor itself.[2]  In turn, VAAR clause 852.236-72 details how to compute the amount of work being performed by the contractor.  Here, although VAAR clause 852.236-72 was included in the solicitation, FAR clause 52.236-1 was not; accordingly, the IFB did not specify here what percentage of work, if any, was to be performed by the contractor.  Moreover, the IFB did not require bidders to submit any information with their bids indicating the amount of work to be self-performed. The solicitation established that contract award would be made to the lowest responsive, responsible bidder, i.e., “[t]he Government will evaluate bids in response to this solicitation . . . and will award a contract to the responsible bidder whose bid, conforming to the solicitation, will be most advantageous to the Government, considering only price and the price-related factors specified elsewhere in the solicitation.”  IFB at 17 (see FAR clause 52.214-19). Four bidders, including aEONRG and Gaver, submitted bids by the September 24 bid opening date.  aEONRG submitted the lowest-priced bid of $219,496.84, and Gaver submitted the second lowest bid in the amount of $238,134.  Agency Report (AR), Tab 5, Bid Abstract.  The contracting officer subsequently determined that aEONRG’s bid complied with and took no exceptions to the solicitation, and that aEONRG was a responsible business concern.  Contracting Officer’s Statement, Dec. 2, 2015; AR, Tab 7, aEONRG Responsibility Determination, Sept. 24, 2015, at 1-26.  The contracting officer found, among other things, that aEONRG had “the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them . . . to perform this contract (see FAR § 9.104-3(a)).”  AR, Tab 7, aEONRG Responsibility Determination, Sept.