BNUMBER:  B-278261 
DATE:  December 24, 1997
TITLE: Enviroclean Systems, Inc., B-278261, December 24, 1997
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Matter of:Enviroclean Systems, Inc.

File:     B-278261

Date:December 24, 1997

Diane Ried Cosenza, Esq., Didriksen & Carbo, for the protester.
Maj. Jeffrey D. Stacey, Department of the Army, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest challenging use of negotiated procedures rather than sealed 
bidding to acquire waste management services is denied where the 
record shows that the agency reasonably concluded that discussions 
might be required before award.

DECISION

Enviroclean Systems, Inc. protests the use of negotiated procedures by 
the Department of the Army to procure solid waste management services 
for Fort Polk, Louisiana, pursuant to request for proposals (RFP) No. 
DAKF24-97-R-0013.  Enviroclean argues that the Army is required to use 
sealed bidding procedures for this procurement.[1]

We deny the protest.

Enviroclean is the current incumbent contractor providing solid waste 
collection and disposal services at Fort Polk.  The company received 
its contract after submitting the low bid on the earlier procurement.  
On May 30, 1997, the Army issued a follow-on solicitation for these 
services, using two-step sealed bidding.  After Enviroclean challenged 
the use of other than an IFB, the Army canceled the solicitation on 
June 17, 1997.  Approximately 3 months later, on September 15, the 
Army issued the above-referenced RFP for these services.  According to 
Enviroclean, the use of other than sealed bidding procedures is 
unnecessarily burdensome, will adversely affect competition, and may 
be a punitive attempt by the Army to avoid award to Enviroclean 
because of a performance dispute that arose between it and the Army 
during the previous contract.

The Army responds that this procurement meets the requirements in 
statute and regulation for using negotiated procedures rather than 
soliciting sealed bids.  First, the Army explains that significant 
changes to its requirements are now reflected in its solicitation, and 
that these changes may require it to hold discussions with potential 
offerors.  For example, the contracting officer states that the 
solicitation includes a waste reduction requirement whose method of 
implementation is left to the discretion of the contractor.  
Contracting Officer's Statement, Nov. 5, 1997, at second unnumbered 
page.  In addition, the Army has elected to make quality more 
important than price in its evaluation of proposals, and has 
identified numerous quality evaluation subfactors in the solicitation.  
RFP  sec.  M.001.  Finally, the Army denies that it is changing its method 
of solicitation in order to avoid selecting the protester.

The Competition in Contracting Act (CICA) directs agencies to use the 
competitive procedure that is best suited to the circumstances of the 
procurement.  10 U.S.C.  sec.  2304(a)(1)(B) (1994).  CICA does, however, 
require the use of sealed bidding when:  (1) time permits; (2) award 
will be based on price; (3) discussions are not necessary; and (4) 
more than one bid is expected.  10 U.S.C.  sec.  2304(a)(2)(A); Federal 
Acquisition Regulation (FAR)  sec.  6.401(a); Specialized Contract Servs., 
Inc., B-257321, Sept. 2, 1994, 94-2 CPD  para.  90 at 4.  When an agency 
determines that these conditions are not met, CICA requires the use of 
negotiated procedures.  10 U.S.C.  sec.  2304(a)(2)(B).  An agency's 
determination that the conditions requiring use of sealed bidding are 
not present must be reasonable.  F&H Mfg. Corp., B-244997, Dec. 6, 
1991, 91-2 CPD  para.  520 at 4.  

With respect to the Army's decision that discussions with offerors may 
be necessary before it awards a contract for these services, the Army 
explains that, despite the protester's assertions to the contrary, the 
specifications for this procurement are not adequate to ensure that 
offerors will create successful waste disposal and recycling programs 
to meet the government's needs.  In addition, it explains that there 
were several problems with contract interpretation during the previous 
contract, including disagreements over how the government's recycling 
program should be implemented.  Enviroclean disagrees with the Army's 
assertions in this area because the recycling requirements in the 
contract were also included in past solicitations--which were 
successfully competed using sealed bidding--and because the specific 
solicitation provision that was the source of a significant dispute 
between it and the Army has been deleted from this procurement.  

The statement of work included in this RFP reveals that offerors are 
given significant discretion in fashioning an approach to meeting the 
Army's needs for these services.  For example, the RFP requires that 
the contractor must achieve a goal of disposing of at least 25 percent 
of the solid waste collected on the installation by means other than a 
landfill.  RFP  sec.  C.5.1.3.  A contractor's failure to meet this goal 
will result in significant deductions in its payment.  RFP  sec.  
C.5.1.3.1.  To achieve this goal, the solicitation requires the 
contractor to establish an installation-wide recovery and recycling 
program, and offers almost no direction on how the program will be 
structured.  RFP  sec.  C.5.1.1.3.

Our review of the solicitation provisions cited above leads us to 
conclude that the Army reasonably anticipated that discussions may be 
necessary in view of the substantial discretion vested in offerors to 
structure programs to meet the agency's needs.  Also, the Army points 
out that numerous disputes arose during the last contract regarding 
the recycling requirement.  While the protester correctly notes that 
the specific provision that was the source of an earlier dispute with 
the Army has been deleted from this solicitation, the deleted 
clause--requiring the use of a material recovery facility (a facility 
which separates solid waste into groups such as recyclables and 
materials that must be sent to a landfill)--clearly relates to the 
ongoing requirements of this solicitation.  In short, even though the 
solicitation no longer states how the contractor must achieve the goal 
of reduced reliance on landfills, the overriding requirement for waste 
reduction remains very much a part of this contract.  Given that these 
requirements were the subject of much dispute when the Army provided 
detailed direction on how to achieve the solicitation's goals, we 
think the agency reasonably concluded discussions may be necessary 
when the solicitation offers less direction.  See Carter Chevrolet 
Agency, Inc., B-228151, Dec. 14, 1987, 87-2 CPD  para.  584 at 3-4.  

Since we conclude that the Army reasonably decided that discussions 
may be necessary to complete this procurement, and this factor alone 
justifies the decision to use negotiated procedures, we need not 
consider the other ground offered by the Army in support of its 
determination to use negotiated procedures--i.e., its decision to make 
quality more important than price in the evaluation.  

Finally, with respect to the protester's allegation that the Army is 
acting in bad faith in this procurement, the protester has presented 
no evidence in support of this contention.  Without such evidence, we 
will not attribute prejudicial motives to agency contracting officials 
on the basis of mere inference or supposition.[2]  Meridian Management 
Corp., Inc.; NAA Servs. Corp., B-254797, B-254797.2, Jan. 21, 1994, 
94-1 CPD  para.  167 at 6. 

The protest is denied.

Comptroller General
of the United States

1. Enviroclean alleges that the agency is improperly using two-stepped 
sealed bidding when it should use an invitation for bids (IFB), the 
approach the agency used the last time it solicited for this effort.  
The solicitation here is actually an RFP.  Despite this error, our 
decision will address Enviroclean's underlying concern--that the 
agency should have procured these services using sealed bids.

2. In any event, the protester appears to have abandoned this issue.  
In response to the protester's assertion that there "may" be collusion 
between Army officials and a nearby recycling facility, the agency 
denied any such collusion and noted that offerors are permitted to 
select their own recycling facility.  In its comments filed after the 
agency report, the protester makes no further mention of this issue.