Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Pond Security Group Italia, JV 

File: B-400149.3 

Date: December 22, 2008 

Paul Reinsdorf, Esq., Reinsdorf & Associates, for the protester. 

William J. Nelson, Department of the Army, for the agency. 

Eric M. Ransom, Esq., and Christine S. Melody, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

Protest challenging agency’s nonresponsibility determination is denied where 

protester failed to meet a definitive responsibility criterion requiring submission of 

licenses to provide security guard services in the relevant geographical regions. 

DECISION 

Pond Security Group Italia, JV, a joint venture, of Vicenza, Italy, protests the 

nonresponsibility determination of the Department of the Army under request for 

proposals (RFP) No. W912PF-08-R-0015, for security guard services at United States 

Army Garrison (USAG) locations in Italy. 

We deny the protest. 

The agency issued the RFP on April 8, 2008, seeking a contractor to provide security 

guard services at USAG locations in Vicenza and Livorno, Italy. According to the 

agency, for purposes of contracting and business practices in Italy, the U.S. 

government is treated as a commercial enterprise and must ensure that its actions 

conform to Italian requirements. Contracting Officer’s Determination, at 1. 

Therefore, many of the contracts awarded by the agency in Italy contain unique 

requirements dictated by the Italian government. In the case of this RFP, offerors 

were required to submit copies of specific necessary permits, licenses, and 

certifications. As relevant here, offerors were required to submit prefecture licenses 

to provide security services. In the case of a joint venture, this requirement was 

intended to apply to each member of the joint venture. 
On May 8, 2008, Pond filed a protest of the solicitation with our Office, alleging that 

the terms of the RFP were unclear because some of the licensing requirements were 

stated in Italian, that the licensing requirements unduly restricted competition, and 

that, to the extent licensing requirements applied to all companies in a joint venture, 

that requirement was unnecessary under Italian law and contrary to commercial 

practices. The agency asserted that the licensing requirements were mandated by 

Italian law, which specifically included the requirement that all companies in a joint 

venture be licensed by the relevant prefectures in order to provide security guard 

services. In its comments, Pond responded that the very requirement that offerors 

submit prefecture licenses to provide security guard services was unclear from the 

face of the solicitation. 

Our review of the record revealed that the statement of certain licensing 

requirements in Italian was not unclear, that the licensing requirements were not 

unduly restrictive of competition, and that the requirement that all members of a 

joint venture submit certain permits, licenses, and certifications was not improper. 

However, we agreed with the protester that the requirement for all offerors to

specifically submit prefecture licenses to provide security guard services was not 

unambiguously stated in the RFP. 

On July 22, our Office conducted an outcome prediction conference call, in which 

we explained to the parties the conclusions that our Office was mostly likely to 

reach in a written decision. As a result of that conference call, the agency took 

corrective action. The corrective action consisted of reopening the RFP, issuing 

amendment 4 to the RFP to clarify the requirement for prefecture licenses, indicating 

that offerors would be allowed to restructure if necessary to comply with the 

licensing requirement, and setting a new proposal due date of August 8. On the basis 

of the corrective action, our Office dismissed the protest as academic. 

On August 8, Pond submitted a revised proposal which removed one of the 

companies from its joint venture, but failed to include copies of licenses to perform 

security services from the local prefectures for any of the companies remaining in 

the joint venture. Accordingly, the agency found Pond ineligible for award due to 

failure to submit required licenses and, on August 28, awarded the contract to

another firm. This protest followed. 

The RFP included a modified version of Federal Acquisition Regulation (FAR) clause 

52.212-1, Instructions to Offerors—Commercial Items, which stated in relevant part: 

The offeror shall submit with its proposal all the documentation 

listed here below in order to be eligible for an award. Failure to 

submit with the proposal any of below listed required 

documents/certificates will be cause for rejection of the initial 

proposal as not in compliance with the requirement of the 

Page 2 B-400149.3 
solicitation, if a determination is made to award the contract based 

on initial proposals without discussion.1

 The offeror is discouraged 

from including with its proposal any additional data or information

not requested by this solicitation. 

RFP at 14. Among the list of documentation requirements, the RFP, as modified by 

amendment 4, included the following requirement: 

The offeror shall submit a copy of their Prefecturer [sic] License to 

provide guard services (licenza prefettizia) from the providence [sic] 

of which services are provided and in accordance with Italian 

T.U.L.P.S. 134. In the case of a joint venture, a copy of the license of 

each company in the joint venture shall be submitted. 

Amendment 4 at 1. 

The agency and the protester agree that the requirement for all companies in a joint 

venture to submit valid prefecture licenses to provide security guard services 

constituted a definitive responsibility criterion. Responsibility is a term used to 

describe the offeror’s ability to meet its contract obligations. See FAR subpart 9.1. A 

contracting officer may not make an award to a contractor unless the contracting 

officer makes an affirmative determination of responsibility. FAR § 9.103(b). In 

most cases, responsibility is determined on the basis of general standards set forth in 

FAR § 9.104-1, and involves subjective business judgments that are within the broad 

discretion of the contracting activities. Bryan L. and F.B. Standley, B-186573, July 20, 

1976, 76-2 CPD ¶ 60 at 5. 

However, in some solicitations, as is the case here, an agency will include a special 

standard of responsibility, referred to by our Office as a definitive responsibility 

criterion. See FAR § 9.104-2. In effect, definitive responsibility criteria represent an 

agency’s judgment that an offeror’s ability to perform in accordance with the 

contract must be measured against specific requirements, compliance with which at 

least in part can be determined objectively. The Mary Kathleen Collins Trust, 

B-261019.2, Sept. 29, 1995, 96-1 CPD ¶ 164 at 3. An offeror must show compliance 

with definitive responsibility criteria as a precondition to award. Coastal Elecs., Inc., 

B-250718, Feb. 16, 1993, 93-1 CPD ¶ 144 at 6-7. 

Pond asserts that the determination that it was not responsible was unreasonable 

since the agency knew or should have known, had it made any effort to gather more 

information, that each of the companies in Pond’s joint venture possessed the 

required prefecture licenses. Specifically, Pond acknowledges that the required 

 1

 The award in this procurement was made based on initial proposals, without 

discussions. 

Page 3 B-400149.3 
licenses were not included in its proposal, but asserts that regardless of the terms of 

the RFP, evidence pertaining to a definitive responsibility criterion may be obtained 

at any time prior to the award, and that the contracting officer was required to solicit 

further information on Pond’s licensing before making a determination of 

responsibility. According to Pond, it was improper for the agency to base its 

nonresponsibility determination solely on a “mechanical review” of the documents in 

Pond’s proposal. 

We agree with the protester that matters of responsibility are to be determined at the 

time of award, and that regardless of the terms of the RFP, information pertaining to 

the protester’s responsibility could have been submitted at any time prior to award. 

LORS Med. Corp., B-259829, B-259829.2, Apr. 25, 1995, 95-1 CPD ¶ 222 at 4. It is 

well-established that the terms of a solicitation cannot convert a matter of 

responsibility into one of proposal acceptability. See Mobility Sys. and Equip. Co., 

B-243332, Apr. 25, 1991, 91-1 CPD ¶ 412 at 3. However, we do not agree that the 

contracting officer was required to seek out additional information pertaining to 

Pond’s responsibility, and we conclude that the contracting officer properly 

determined that Pond failed to meet a definitive responsibility criterion based on a 

review of the submitted documents. 

To the extent Pond argues that the agency was obligated to contact it upon 

discovering that the prefecture licenses were not included in its proposal, we 

disagree. An agency is not required to contact an offeror prior to making its 

determination; a contracting officer may base a negative determination of 

responsibility on evidence in the record, without affording offerors the opportunity 

to explain or otherwise defend against the evidence. Victor Graphics, Inc., B-249297, 

Oct. 19, 1992, 92-2 CPD ¶ 252 at 3-4. It is the duty of the bidder to supply all 

necessary documentation to establish its responsibility. Yellowhorse Indus., 

B-250282, Jan. 12, 1993, 93-1 CPD ¶ 35 at 4. More specifically, whether an offeror has 

complied with a definitive responsibility criterion relating to the submission of a 

specific license or certification is an objective determination that is made on the 

basis of the documents submitted to the contracting officer prior to the time of the 

award. See The Mary Kathleen Collins Trust, supra. 

Here, in light of the RFP’s clear admonition that an offeror was to submit all required 

documents with its initial proposal, and the fact that Pond did not submit the 

required prefecture licenses with its proposal or at any other time prior to award, we 

see no basis to object to the agency’s determination that Pond failed to meet a 

definitive responsibility criterion contained in the RFP. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

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