Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. This redacted version has been 

approved for public release. 

Decision 

Matter of: J2A2

 JV, LLC 

File: B-401663.4 

Date: April 19, 2010 

Antonio R. Franco, Esq., and Steven J. Koprince, Esq., PilieroMazza PLLC, for the 

protester. 

William A. Shook, Esq., Shook Doran Koehl LLP, for Specialized Veterans, LLC, an 

intervenor. 

Peter S. Kraemer, Esq., Department of Veterans Affairs, for the agency. 

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the 

General Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Protest that awardee does not meet solicitation’s definitive responsibility criterion 

requiring at least 5 years experience as a general contractor is sustained where 

record demonstrates that general contractor does not have the requisite experience, 

and solicitation language may not reasonably be interpreted as permitting use of a 

subcontractor’s experience to satisfy the requirement. 

DECISION 

J2A2 JV, LLC, of Tampa, Florida, protests the award of a contract to Specialized 

Veterans, LLC, of West Point, Georgia, under request for proposals (RFP) No. 

VA-101-09-RP-0101, issued by the Department of Veterans Affairs for construction 

services at Sarasota National Cemetery in Sarasota, Florida. The protester contends 

that Specialized’s proposal should have been rejected for failure to comply with 

certain solicitation requirements pertaining to experience. 

We sustain the protest. 

The RFP, which was set aside for service-disabled veteran-owned small businesses, 

sought a contractor to perform a range of construction services, including 

excavation, grading, landscaping, irrigation, mechanical and electrical work, and 

installation of pre-placed crypts. The solicitation provided for award to the offeror 

submitting the lowest priced technically acceptable proposal. To be determined 

technically acceptable overall, a proposal had to be technically acceptable under 
Page 2 B-401663.4 

each of three factors: construction management, past performance, and proposed 

schedule. 

Thirteen offerors submitted proposals; the protester’s proposal was tenth lowest in 

price. The contracting officer referred only the five lowest priced proposals for 

technical evaluation. The evaluation panel determined that the first-, second-, and 

fifth-lowest priced proposals were technically acceptable, but that the third- and 

fourth-lowest priced were unacceptable. 

On July 10, 2009, the VA awarded a contract to the lowest priced offeror, Blue Cord 

Construction. The Small Business Administration (SBA) subsequently determined 

that Blue Cord was other than a small business; SBA also determined that the 

second-lowest priced offeror was other than a small business under a different 

solicitation with the same size standard, and thus the VA did not consider that firm 

eligible for the award here. Because neither the third- nor the fourth-lowest priced 

proposal had been determined technically acceptable, the contracting officer 

selected the fifth-lowest priced offeror, Specialized Veterans, for award. By letter 

dated January 5, 2010, the contracting officer notified the protester that the VA had 

awarded a contract to Specialized. J2A2 protested to our Office on January 15. 

INTERESTED PARTY 

As a preliminary matter, the VA argues that J2A2 is not an interested party to protest 

the award to Specialized because it would not be in line for award if its protest were 

to be sustained. The agency points out that there are [deleted] proposals with prices 

lower than the protester’s that would be considered for award ahead of the 

protester’s. 

In order for a protest to be considered by our Office, a protester must be an 

interested party, which means that it must have a direct economic interest in the 

resolution of a protest issue. Bid Protest Regulations, 4 C.F.R. § 21.0 (2009); 

Cattlemen’s Meat Co., B-296616, Aug. 30, 2005, 2005 CPD ¶ 167 at 2 n.1. A protester 

is an interested party to challenge the agency’s evaluation of proposals where there 

is a reasonable possibility that the protester’s proposal would be in line for award if 

the protest were to be sustained. Family Entertainment Servs., Inc., B-298047.3, 

Sept. 20, 2006, 2007 CPD ¶ 59 at 3. Here, while there are proposals lower in price 

than the protester’s, the agency has not evaluated them for technically acceptability, 

nor has it considered whether the offerors qualify as service-disabled veteran-owned 

small businesses; thus, the existing record does not establish that there would be an 

offeror in line for award ahead of J2A2

 were its protest to be sustained. Absent such 

a showing, we consider the protester to have a reasonable possibility of award, and 

thus to qualify as an interested party here. See id.
Page 3 B-401663.4 

EXPERIENCE REQUIREMENTS 

The protester contends that Specialized’s proposal should have been rejected for 

failure to comply with certain solicitation requirements pertaining to experience. 

Specifically, with respect to the experience of the proposed general contractor and 

subcontractors, the RFP provided as follows: 

The general contractor and subcontractors shall meet or exceed the 

following minimum requirements: 

• The general contractor shall have at least 5 years experience as 

a general contractor and at least 5 years experience building 

golf courses or similar earthwork projects; 

• Preferably, the landscape contractor and the irrigation 

contractor are one and the same and have at least 5 years 

experience on landscaping projects with at least 50 acres in size; 

• The irrigation contractor has at least 5 years irrigation 

experience and has completed at least 5 projects that exceeded 

50 irrigated acres each; 

• The earthwork contractor has at least 5 years experience in 

road building; 

• The paving contractor has at least 5 years experience in road 

paving. 

RFP at 15. 

In addition, the RFP included the following requirement, entitled Corporate Project 

Experience: 

The Offeror shall demonstrate corporate experience with no less than 

three and no more than four projects completed within the last five 

years of contracts similar in size and scope to this project. 

Id. at 16. 

J2A2 argues that Specialized became a legal entity on March 25, 2009 and thus cannot 

meet the RFP requirement for 5 years of experience as a general contractor and in 

building golf courses or similar earthwork projects. The protester also argues that 

Specialized failed to demonstrate that it had the required corporate experience with 

contracts similar in size and scope to this project. J2A2 notes in this connection that 

the four projects that Specialized cited in its proposal had values ranging from 

$90,000 to $2.5 million, whereas the solicitation estimated the contract value here as 

$20 million to $50 million. The VA argues in response that Specialized proposed a 

team composed of itself and two subcontractors, Specialized Services, Inc. and 

Batson-Cook Company, to perform the work, and that the agency properly attributed 
Page 4 B-401663.4 

the experience of the two subcontractors to the prime contractor (Specialized itself) 

in its evaluation. 

Solicitation requirements that a prospective contractor have a specified number of 

years of experience in a particular area and a designated number of projects 

completed within a specified time period are definitive responsibility criteria; that is, 

they are specific and objective standards designed to measure a prospective 

contractor’s ability to perform the contract. D.H. Kim Enters., Inc., B-255124, Feb. 8, 

1994, 94-1 CPD ¶ 86 at 2. Failure to meet a definitive responsibility criterion renders 

a firm nonresponsible. Id.

As a general rule, the experience of a technically qualified subcontractor may be 

used to satisfy definitive responsibility criteria relating to experience for a 

prospective prime contractor. Tutor-Saliba Corp., Perini Corp., Buckley & Co., Inc., 

and O & G Indus., Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD ¶ 223 at 

4-5. An exception to the rule exists, however, where the solicitation provides that 

only the prime contractor’s experience will be considered. Id.

With respect to the Corporate Project Experience requirement, the RFP language, as 

set out above, did not limit the corporate experience that could be considered to the 

prime contractor’s experience. Accordingly, we conclude that it was proper for the 

agency to consider the experience of the protester’s proposed subcontractors in 

determining whether the protester had performed similar projects in the past 5 years. 

Since the record shows that the awardee’s proposed subcontractors have the 

required experience, there is no basis to object to the agency’s evaluation on this 

ground. 

With respect to the other experience requirement at issue here--that the general 

contractor have 5 years of experience as a general contractor and in building golf 

courses or similar earthwork projects--we conclude that it was improper for the 

evaluators to consider the experience of the awardee’s proposed subcontractors for 

purposes of determining compliance with the requirement. In our view, because the 

RFP uses the term “general contractor,” the only reasonable interpretation of the 

provision is that the proposed general contractor itself--that is, Specialized, as 

opposed to the members of its team--must have the required experience. Our 

interpretation is supported by the language used in the rest of the RFP provision, 

which, in addition to the “general contractor” requirement, sets out experience 

requirements pertaining to the “landscape contractor,” the “irrigation contractor,” 

the “earthwork contractor,” and the “paving contractor.” We think that this indicates 

that the agency was deliberate in its choice of words when describing which entity 

was to have the various types of experience called for, and chose the descriptions 

with their specific meanings in mind. Further, given that the requirement calls for 

experience as a general contractor, it is reasonable to assume that the agency 

intended that the entity that will be performing the general contractor functions 
Page 5 B-401663.4 

under the contract--not subcontractors performing other functions--have experience 

as a general contractor. 

Given our interpretation of the RFP, and because it is clear from the record that 

Specialized, which was started in 2009, does not have 5 years of experience as a 

general contractor or 5 years of experience building golf courses, the contracting 

officer could not reasonably conclude that it satisfies these definitive responsibility 

requirements. Accordingly, we sustain the protest on this ground. 

Since Specialized has represented that it is a small business, we recommend that the 

matter be referred to the SBA for review under its certificate of competency (COC) 

procedures. See MEI, Inc., B-277235.2, Nov. 12, 1997, 97-2 CPD ¶ 138 at 5. If SBA 

does not issue a COC to Specialized, the agency should proceed with evaluation of 

the other offers and select the lowest priced technically acceptable proposal for 

award. We also recommend that J2A2 be reimbursed the reasonable costs of filing 

and pursuing the protest, including reasonable attorneys’ fees. 4 C.F.R. § 21.8(d)(1). 

The protester’s certified claim for costs, detailing the time spent and the costs 

incurred, must be submitted to the agency within 60 days after receipt of this 

decision. 

The protest is sustained. 

 

Lynn H. Gibson 

Acting General Counsel