BNUMBER:  B-266302
DATE:  January 19, 1996
TITLE:  Health Care Waste Services

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Matter of:Health Care Waste Services

File:     B-266302

Date:     January 19, 1996

Carlos Castellanos, for the protester.
Philippa L. Anderson, Esq., Department of Veterans Affairs, for the 
agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Solicitation requirement that contractor must be registered with the 
state as a regulated medical waste transporter is a contract 
performance obligation and not a precondition to award.

DECISION

Health Care Waste Services protests the award of a contract to 
Stericycle, Inc., by the Department of Veterans Affairs (VA) under 
invitation for bids (IFB) No. 620-13-95.  Health Care contends that 
the agency improperly determined Stericycle to be responsible, because 
Stericycle did not meet a state registration requirement of the IFB at 
the time of award.  

We dismiss the protest.

On July 28, 1995, the agency issued this IFB, for medical waste 
removal and disposal services.  Of relevance to this protest, the 
agency issued amendment No. 2 which included, in the statement of work 
(SOW), a requirement that the contractor be registered with the New 
Jersey Department of Environmental Protection and Energy as a 
regulated medical waste transporter.  

The VA received three bids by the September 7 bid opening.  Both 
Health Care and another bidder qualified their bids.[1]  Therefore the 
VA rejected these two bids as nonresponsive, and made award on 
September 25 to Stericycle, as the low responsive and responsible 
bidder.   

The protester argues that the agency improperly determined Stericycle 
to be responsible, because it did not meet the solicitation 
requirement that it be registered with New Jersey as a regulated 
medical waste transporter at the time of award.

The agency argues that Health Care is not an interested party to 
protest the award to Stericycle because its bid was found 
nonresponsive.  Under the bid protest provisions of the Competition in 
Contracting Act of 1984, 31 U.S.C.  sec.  3551-3556, only an interested 
party may protest a federal procurement.  An interested party is an 
actual or prospective bidder whose direct economic interest would be 
affected by the award of a contract or the failure to award a 
contract.  4 C.F.R.  sec.  21.0(a) (1995).  Determining whether a party is 
interested involves consideration of a variety of factors, including 
the nature of the issues raised, the benefit or relief sought by the 
protester, and the party's status in relation to the procurement.  
Black Hills Refuse Serv., 67 Comp. Gen. 261 (1988), 88-1 CPD  para.  151.  
Here, even though Health Care's bid was properly rejected as 
nonresponsive, the award was made to the only responsive bidder.  
Thus, if Health Care's protest were upheld, we could recommend that 
the award be terminated, the IFB be canceled, and the requirement 
resolicited, in which case Health Care would be eligible to compete.  
In these circumstances, Health Care has a sufficient stake in the 
outcome of the protest to render it an interested party to protest 
that the award was improper.  Satin Am. Corp., B-261068, Aug. 16, 
1995, 95-2 CPD  para.  70.

The solicitation did not require that an offeror's registration must 
be valid prior to award, but rather provided in the SOW that the 
"contractor must be registered with the New Jersey Department of 
Environmental Protection and Energy . . . as a regulated medical waste 
transporter."  As such, the registration or licensing requirement 
imposes a performance obligation rather than a prerequisite to award 
such as a definitive responsibility criterion or a matter to be 
considered as part of a technical evaluation.  See Telos Field Eng'g, 
68 Comp. Gen. 295 (1989), 89-1 CPD 
 para.  238;  White Water Assocs., Inc., B-244467, Oct. 22, 1991, 91-2 CPD  para.  
356.  Any questions regarding the offeror's ability to meet the 
performance requirement is encompassed by the contracting officer's 
subjective responsibility determination, which we will review only 
where the protester makes a showing that this 

determination may have been based upon fraud or bad faith.  White 
Water Assocs., Inc., supra.  No such showing has been made in this 
case and we therefore decline to review the contracting officer's 
affirmative responsibility determination.  

The protest is dismissed.

Comptroller General 
of the United States

1. Health Care qualified its bid by imposing an additional price for 
holiday pickup that was not provided for in the IFB.  The other bidder 
qualified its bid by proposing different size containers from those 
required by the IFB.