BNUMBER: B-262238
DATE: December 12, 1995
TITLE: RSI Realty Services, Inc.
**********************************************************************
Matter of:RSI Realty Services, Inc.
File: B-262238
Date: December 12, 1995
Robert W. Howells for the protester.
Arnette L. Georges, Esq., for the Department of Housing and Urban
Development, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency's waiver of definitive responsibility criterion, set forth in
solicitation for real estate acquisition management services to
require that offerors possess a valid real estate brokers license
prior to award, is unobjectionable where the requirement overstated
the agency's actual needs, the agency's needs can be met through award
to an offeror which did not satisfy the requirement but acquired the
license shortly after award, and there is no reasonable possibility of
prejudice to other offerors.
DECISION
RSI Realty Services, Inc. (RSI) protests the award of a contract to
CitiWest Properties, Inc. under request for proposals (RFP) No.
H02R950642, issued by the Department of Housing and Urban Development
(HUD), for real estate asset management (REAM) services. RSI argues
that CitiWest should not have received award because it did not have a
New Jersey real estate broker license as of the time of award, as
required by the solicitation.
We deny the protest.
The RFP provided for the award of a firm, fixed-price, indefinite
quantity contract for the performance of REAM services in Atlantic,
Cape May, Cumberland, Ocean and Salem counties, New Jersey. The
contractor will be responsible for preserving and protecting single
family properties until the units are sold to the public or accepted
by nonprofit organizations. The RFP provided that award would be made
to the responsible offeror whose offer, conforming to the
solicitation, was determined most advantageous to the government, cost
and other factors considered.
The agency issued four amendments to the solicitation, with amendment
No. 004 adding the following:
"LICENSE REQUIREMENTS. The Contractor must possess a valid New
Jersey Real Estate License. Evidence of the valid New Jersey
Real Estate Broker License must be submitted to HUD prior to
contract award."
The agency received three proposals, including those of CitiWest and
RSI, by the RFP's closing date. Discussions were held, and best and
final offers were received and evaluated. CitiWest's proposal
received a total score of 79 points, with an evaluated price of
$678.05 per unit. RSI's proposal received a total score of 70 points,
with an evaluated price of $730.45 per unit. The agency determined
that CitiWest's proposal represented the best value to the government
and made award to that firm.
RSI argues that the award was improper because CitiWest did not have a
New Jersey Real Estate Brokers license at the time of award as
required by amendment 004.
The contracting officer states that during the consideration of
CitiWest's proposal, she was informed by CitiWest that, although that
firm did not have the requisite real estate license, if CitiWest were
awarded the contract, it would incorporate in New Jersey and promptly
obtain all necessary licensing to perform the contract. The
contracting officer adds that she contacted two other HUD offices for
which CitiWest was performing REAM contracts, and was informed that
within 5 days of award of those contracts CitiWest had established and
fully staffed REAM offices, and that within 2 weeks of award CitiWest
had obtained all necessary licenses. Based on the foregoing, and
certain other information not relevant here, the agency found CitiWest
responsible and awarded the contract to that firm on July 21.
CitiWest subsequently obtained the requisite licenses with an
effective date of August 15.
Our Office generally does not review affirmative determinations of
responsibility because such determinations are based in large measure
on subjective judgments. Bid Protest Regulations, 4 C.F.R.
21.3(m)(5) (1995); Stocker & Yale, Inc., B-238251, May 16, 1990, 90-1
CPD 475. One exception to this rule is where a solicitation
contains definitive responsibility criteria, that is, specific and
objective standards established by an agency to measure an offeror's
ability to perform the contract. Federal Acquisition Regulation (FAR)
9.104-2; Tama Kensetsu Co., Ltd., and Nippon Hodo., B-233118, Feb. 8,
1989, 89-1 CPD 128. These special standards put firms on notice
that the class of prospective contractors is limited to those who meet
the qualitative or quantitative criteria deemed necessary for adequate
performance, e.g., unusual expertise, specialized facilities, or
particular licenses. Tucson Mobilephone, Inc. B-258408.3, June 5,
1995, 95-1 CPD 267; Stocker & Yale, Inc., supra. Here, as the
agency agrees, the RFP's requirement that the awardee possess a valid
New Jersey Real Estate Broker License at the time of award is a
definitive responsibility criterion.
As the record demonstrates, CitiWest simply did not have the license
required as of the time of award. Although, as pointed out by the
agency, in certain cases we have recognized that a definitive
responsibility criterion need not be satisfied literally if there is
equivalent or comparable compliance, see, e.g., Unison Transformer
Servs., Inc., 68 Comp. Gen. 74 (1988), 88-2 CPD 471 (requirement
that offeror have reclassified a transformer which performed properly
for 1 year met where the offeror demonstrated through laboratory
testing that it could reclassify a transformer which would perform
properly for 1 year); Pikes Peak Community College, B-199102, Oct. 17,
1980, 80-2 CPD 293 (college's accreditation by a national
association comparable to requirement that offeror be accredited by
regional or state association), the assurances from CitiWest and the
experiences of other HUD offices that CitiWest would be able to
promptly obtain the license cannot be considered comparable to what
the RFP stated was required--a valid New Jersey Real Estate Brokers
License prior to award. See Stocker & Yale, supra.
By finding CitiWest responsible and making award to that firm, the
contracting officer effectively waived the RFP's definitive
responsibility criterion that offerors possess the license prior to
award. See Topley Realty Co., Inc., 65 Comp. Gen. 510 (1986), 86-1
CPD 398
We find the waiver unobjectionable under the circumstances here. It
is apparent from the record that the requirement that the license be
obtained prior to award exceeded the agency's actual needs, and that
the award to CitiWest, which had demonstrated that it would in all
likelihood be able to obtain the license shortly after award (and did
in fact obtain one), met the agency's actual needs. Id.; Ktech Corp.;
Physical Research, Inc., B-241808; B-241808.2, Mar. 1, 1991, 91-1 CPD
237, aff'd, Physical Research, Inc.--Recon., B-241808.4, June 10,
1991, 91-1 CPD 552. Further, the record evidences no possibility
of prejudice attendant to the waiver of the pre-award licensing
requirement. Three offers for these services were received, and there
is no evidence, or reason to believe, that any firms were excluded
from the competition due to the requirement. Additionally, there is
no indication that the content or pricing of any of the offers
submitted would have been different if the requirement had permitted
offerors to merely show the ability to obtain a license shortly after
award. Because the award to CitiWest met the agency's actual needs
without prejudice to the other offerors, there is no basis to object
to the waiver. See Ktech Corp.; Physical Research, Inc., supra. The
award to CitiWest therefore was proper.
The protest is denied.
Comptroller General
of the United States