BNUMBER: B-279250
DATE: May 26, 1998
TITLE: Red River Service Corporation, B-279250, May 26, 1998
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Matter of:Red River Service Corporation
File: B-279250
Date:May 26, 1998
Theodore M. Bailey, Esq., and Jonathan M. Bailey, Esq., for the
protester.
Lis B. Young, Esq., George N. Brezna, Esq., and Charles E. Chambers,
Esq., Department of the Navy, for the agency.
Lisa K. Friedman, Esq., and John Michaud, Esq., for the Environmental
Protection Agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Solicitation for solid waste collection and disposal services for Camp
Pendleton, San Diego County, California, properly included a provision
requiring that the successful contractor comply with a San Diego
County ordinance; prior General Accounting Office decisions stating
that major federal facilities are exempt from such ordinances will not
be followed.
DECISION
Red River Service Corporation protests the terms of invitation for
bids (IFB) No. N68711-97-B-6401, issued by the Department of the Navy,
for solid waste collection and disposal services for Camp Pendleton,
San Diego County, California.
We deny the protest.
The IFB provides for the award of a fixed-price, indefinite-quantity
contract for a base period of 1 year with four 1-year options. The
successful contractor will be required to provide solid waste
collection and disposal services for Camp Pendleton. Camp Pendleton
is located in an unincorporated area of San Diego County, and includes
approximately 5,784 residential housing units and numerous commercial
buildings. The IFB, as amended, states:
As required by the County of San Diego's Ordinance Number 8790,
award of this solicitation is limited only to those contractors
who are eligible to, or currently, have a non-exclusive solid
waste management agreement with the County of San Diego.[1]
Red River argues that the requirement that the successful contractor
have a solid waste management agreement with San Diego County unduly
restricts competition and is unnecessary because, consistent with
certain decisions of our Office, Camp Pendleton is a "major federal
facility" and as such is not required to comply with local
requirements respecting the collection and disposal of solid waste.
In preparing for the procurement of supplies or services, the
procuring agency must specify its needs and solicit bids or proposals
in a manner designed to achieve full and open competition. 10 U.S.C. sec.
2305(a)(1)(A)(i) (1994). A solicitation may include restrictive
provisions only to the extent necessary to satisfy the needs of the
agency or as otherwise authorized by law. 10 U.S.C. sec.
2305(a)(1)(B)(ii) (1994).
The agency explains that it interprets section 6001 of the Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. sec. 6961 (1994),
as requiring that it comply with San Diego County's local ordinances
in obtaining solid waste collection and disposal services. Section
6001 of RCRA, 42 U.S.C. sec. 6961(a) (1994), provides in pertinent part
as follows:
Each department, agency and instrumentality of the executive,
legislative, and judicial branches of the Federal Government . .
. engaged in any activity resulting, or which may result, in the
disposal or management of solid waste or hazardous waste shall be
subject to, and comply with, all Federal, State, interstate, and
local requirements, both substantive and procedural . . .
respecting control and abatement of solid waste or hazardous
waste disposal and management in the same manner, and to the same
extent, as any person is subject to such requirements, including
the payment of reasonable service charges.
Our Office first considered the effect of 42 U.S.C. sec. 6961 on
procurements by federal agencies for waste disposal services in
Monterey City Disposal Serv., Inc., B-218624, B-218880, Sept. 3, 1985,
85-2 CPD para. 261, at the request of the United States District Court for
the Northern District of California. In Monterey, we concluded that
the Navy Postgraduate School and the Army Presidio of Monterey,
federal facilities located within the city limits of Monterey,
California, were required by 42 U.S.C. sec. 6961 to comply with a city
requirement that all inhabitants of the city have their solid waste
collected by the city's exclusive franchisee.[2] In reaching this
conclusion, we noted that it was clear from the legislative history of
42 U.S.C. sec. 6961 that its purpose was to require federal agencies to
provide leadership in dealing with solid and hazardous waste disposal
problems by having them comply not only with federal controls on the
disposal of waste, but also with state and local controls as if they
were private citizens.[3] Monterey City Disposal Serv., Inc., supra,
at 4.
Our Office next substantively considered the effect of 42 U.S.C. sec.
6961 on procurements by federal agencies for waste disposal services
in Solano Garbage Co., B-225397, B-225398, Feb. 5, 1987, 87-1 CPD para.
125, recon. denied, B-225397.2, B-225398.2, June 5, 1987, 87-1 CPD para.
571, which presented the issue of whether the protester's possession
of an exclusive franchise to provide waste disposal services within
the city limits of Fairfield, California, precluded Travis Air Force
Base (which is located within Fairfield) from issuing a competitive
solicitation for such services. Although we recognized that 42 U.S.C. sec.
6961 requires that federal agencies obtain waste disposal services in
accordance with local government requirements, we agreed with the
procuring agency that Travis Air Force Base "should be treated as
though it is a separate municipality that cannot be required by
Fairfield to use that city's exclusive franchisee for refuse
collection." Solano Garbage Co., supra, at 6. We relied primarily on
40 C.F.R. sec. 255.33 (1986) in reaching this conclusion.[4] That
regulation, issued by the Environmental Protection Agency (EPA) and
implementing certain aspects of RCRA, provides as follows:
Major Federal facilities and Native American Reservations should
be treated for the purposes of these guidelines as though they
are incorporated municipalities, and the facility director or
administrator should be considered the same as a locally elected
official.
We determined that 40 C.F.R. sec. 255.33 created an exception to the RCRA
requirement set forth at 42 U.S.C. sec. 6961, finding that the regulation
evidences an intent that "major federal facilities" be considered
"as though they are incorporated municipalities" for planning
purposes under RCRA, which includes planning for the disposal of
municipal solid waste.
Solano Garbage Co., supra, at 6. That is, we agreed with the
procuring agency that Travis Air Force Base, as a major federal
facility by virtue of its size and function (10,000 military
inhabitants located on 5,200 acres owned by the United States, and
occupying hundreds of buildings, workshops and storage facilities, all
surrounded by a chain-link fence), was to be afforded the same status
as a municipality under the California Solid Waste Management Plan,
and could provide for its own refuse collection services.[5] Id.
Our Office subsequently considered the "major federal facilities"
exception in four more protests. We found in one of the protests that
the installation at issue was not, by virtue of its size and function,
a major federal facility, and thus was required to use the city's
exclusive franchise for refuse collection and transportation. Oakland
Scavenger Co., B-236685, Dec. 19, 1989, 89-2 CPD para. 565 (Coast Guard
Island, Alameda, California). In each of the remaining three
protests, we determined that the installation at issue was a major
federal facility and entitled to contract for its own refuse
collection services, and thus was not subject to the waste disposal
arrangement requirements of the local municipality or county. Waste
Management of N. Am., Inc., B-241067, Jan. 18, 1991, 91-1 CPD para. 59 (El
Toro Marine Corps Air Station, Orange County, California); Oakland
Scavenger Co., B-241577, B-241584, Feb. 13, 1991, 91-1 CPD para. 166
(Alameda Naval Air Station, Alameda, California); Concord Disposal,
Inc., B-246441.2, July 15, 1992, 92-2 CPD para. 24 (Naval Weapons Station,
Concord, California).
The protester in Concord Disposal, the most recent decision of our
Office in this area, challenged, among other things, the validity of
the major federal facilities exception first set forth in Solano
Garbage Co., supra. In support of this challenge, the protester
argued that EPA was without statutory authority to issue a regulation
exempting major federal facilities from the requirements 42 U.S.C. sec.
6961, and pointed out that its view was consistent with that of the
United States District Court of the Eastern District of California, as
set forth in Solano Garbage Co. v. Cheney, 779 F. Supp. 477 (E.D.Cal
1991).
During the pendency of the Concord Disposal protest, our Office
requested EPA's opinion regarding the protester's challenge to the
propriety of the major federal facilities exemption. EPA advised our
Office that "it would be inappropriate to provide such an opinion, as
this is a matter on which the Federal government is currently involved
in litigation." Concord Disposal, Inc., supra, at 5. The litigation
referred to was the appeal of Solano Garbage Co. v. Cheney, then
pending at the United States Court of Appeals for the Ninth
Circuit.[6] In light of EPA's position that it would not comment and
because the validity of the exemption was squarely before the Ninth
Circuit, we declined to revisit the issue of the propriety of the
major federal facilities exception in Concord Disposal.[7]
As detailed below, we now conclude that 40 C.F.R sec. 255.33 does not
exempt major federal facilities from the general requirement that
federal installations comply with applicable local requirements and
arrangements for solid waste collection and disposal. In reaching
this conclusion, we give considerable weight to EPA's views on the
matter, which were detailed in a letter filed with our Office and
provided to the parties for comment on May 4, 1998. We are required
to give deference to EPA's reasonable interpretation of its
regulations. Israel Aircraft Indus., Ltd.--Recon., B-258229.2, July
26, 1995, 95-2 CPD para. 46 at 5; see Udall v. Tallman, 380 U.S. 1, 16-17
(1964).
In accordance with section 4002 of RCRA, 42 U.S.C. sec. 6942 (1994), EPA
was required to "publish [by regulation] guidelines for the
identification of those areas which have common solid waste management
problems and are appropriate units for planning regional solid waste
management services." 42 U.S.C. sec. 6942(a). EPA explains that 40
C.F.R. Part 255 constitutes the guidelines for identifying appropriate
regions for waste management planning purposes required by section
4002(a) of RCRA, 42 U.S.C. sec. 6942(a). These guidelines provide that
the preliminary identification of regional boundaries should be made
by the governor of the respective State after consultation with local
government officials and/or entities. 40 C.F.R. sec. 255.20 and 255.21.
The local government officials and/or entities are to be notified of,
and allowed to participate in, the process of identifying the
appropriate state agencies to be responsible for the solid waste
management plan and its implementation, and invited to a public
hearing should one be needed. 40 C.F.R. sec. 255.23.
EPA explains that 40 C.F.R. sec. 255.33 equated "'major federal
facilities' . . . with 'incorporated municipalities' to ensure that
these potentially large areas of a State are included in the
identification of solid waste management planning regions." The
agency adds that, because the guidelines set forth in Part 255
identify certain roles for locally elected officials, the provision in
40 C.F.R. sec. 255.33 that "the facility director or administrator should
be considered the same as a locally elected official" was "intended to
allow the director of a federal facility . . . to fully participate in
regional solid waste planning and implementation in the same manner as
local elected officials." The agency points out that its intentions
are confirmed by the terms of 40 C.F.R. sec. 255.33, which provide that
major federal facilities are to be treated as incorporated
municipalities only "for the purposes of these guidelines." EPA
concludes that 40 C.F.R. sec. 255.33 "does not . . . go further to exempt
federal facilities from local solid waste requirements."
EPA's view is consistent with that expressed in Solano Garbage Co. v.
Cheney, supra. In that decision, the district court took issue with
our prior reading of 40 C.F.R. sec. 255.33, and concluded, based upon its
examination of the statutory language and legislative history of 42
U.S.C. sec. 6961 and RCRA as a whole, as well as 40 C.F.R. sec. 255.33, that
40 C.F.R. sec. 255.33 did not provide for a major federal facilities
exemption to the requirement that federal installations comply with
local requirements and arrangements for solid waste collection and
disposal. The court noted that the legislative history of RCRA showed
that Congress was aware of a history of controversy over the extent of
federal compliance with local requirements mandated by section 118 of
the Clean Air Act, 42 U.S.C. sec. 7418, and section 313 of the Federal
Water Pollution Control Act, 33 U.S.C. sec. 1323, and that "the
legislative reaction to this history of controversy 'was to subject
federal installations to state environmental control.'" Solano
Garbage Co. v. Cheney, 779 F. Supp. at 487. The court concluded that
"[a]gainst this history . . . Congress did not intend any exemption to
local requirements beyond those specifically described in the
statute," and noted that consistent with this, the statute provides no
indication that major federal facilities should be exempted from local
requirements. Id.
Turning to 40 C.F.R. sec. 255.33, the court noted that the scope and
purpose of Part 255 is defined in 40 C.F.R. sec. 255.1(a) as follows:
These guidelines are applicable to policies, procedures, and
criteria for the identification of those areas which have common
solid waste management problems and which are appropriate units
for planning regional solid waste management services pursuant to
section 4002(a) of the Solid Waste Disposal Act, and amended by
[RCRA] (the Act).[8] The guidelines also define and guide the
identification of which functions will be carried out by which
agencies pursuant to section 4006 of the Act.[9]
The court held:
By its plain language, 40 C.F.R. sec. 255.33 requires "major federal
facilities" to be treated as local municipalities for purposes of
the guidelines, i.e., for purposes of the regulations in Part
255, which were intended to guide the states in developing state
plans pursuant to sec. 4006. The regulation does not require the
states to treat major federal facilities as separate
municipalities for all purposes.
Solano Garbage Co. v. Cheney, 779 F. Supp. at 488. The court added
that reading the regulation in the manner suggested by our Office
would conflict with the congressional concern for unification of waste
disposal systems by effectively multiplying rather than unifying the
number of jurisdictions with such systems. 779 F. Supp. at 488-89.
The court also noted that, because 42 U.S.C. sec. 6961 did not provide
for a "major federal facilities" exemption, reading 42 C.F.R. sec. 255.33
as creating one would place the EPA in the position of having issued a
regulation which exceeded its statutory authority. 779 F. Supp. at
489.
We are persuaded by EPA's position and that expressed in Solano
Garbage Co. v. Cheney, and now agree that 40 C.F.R. sec. 255.33 does not
exempt major federal facilities from the general requirement that
federal installations are required to comply with local arrangements
for solid waste collection and disposal. As noted by the district
court in Solano Garbage Co. v. Cheney, there is no language in 42
U.S.C. sec. 6961 or anywhere else in RCRA, or in RCRA's legislative
history, indicating that Congress intended that major federal
facilities be exempt from the general requirement that federal
installations are required to comply with local arrangements for solid
waste collection and disposal. With regard to 40 C.F.R. sec. 255.33, we
agree with EPA that the context of the regulation makes it clear that
the regulation is only meant to ensure that major federal facilities
are considered in the identification of solid waste management regions
and that the facilities' administrators are included in the
decision-making process, and was not intended to exempt federal
facilities from local requirements regarding solid waste collection
and disposal. In this regard, we note that there is no indication in
the explanatory comments in the Federal Register notice setting forth
the Part 255 regulations that 40 C.F.R. sec. 255.33 was intended to
exempt major federal facilities from the general requirements of
section 6001 of RCRA. See Part 255--Identification of Regions and
Agencies for Solid Waste Management, 42 Fed. Reg. 24,925-927
(1977).[10]
Accordingly, we will no longer follow our prior decisions stating that
major federal facilities are exempt from the general RCRA requirement
that federal agencies comply with local solid waste management
regulations. The agency here acted properly in including in the
solicitation the clause providing that the successful contractor
comply with the San Diego County ordinance, by requiring that the
contractor have or be able to obtain a solid waste management
agreement with the County of San Diego.
The protest is denied.
Comptroller General
of the United States
1. Ordinance 8790 provides in part that:
it is unlawful for any person to engage in the business of
collection of solid waste kept, accumulated or produced in
the unincorporated County unless a Solid Waste Management
Agreement has been entered into and is in full force and
effect.
San Diego County, Cal., Ordinance 8790, sec. 68.530 (Apr. 29, 1997)
According to the record, 25 firms currently have solid waste
management agreements with San Diego County. County of San Diego,
Solid Waste Management Agreements (Feb. 20, 1998).
2. We noted in Monterey that, while the Competition in Contracting Act
of 1984 (CICA) generally requires competition in government
contracting, CICA recognizes an exception where a statute expressly
authorizes or requires that a procurement be made from a specified
source. 10 U.S.C.A. sec. 2304(c)(5) (West Supp. 1998). As indicated
above, we found the exception applicable, and concluded that the
protested federal solicitations should be canceled and the services of
the city's franchisee used instead. Monterey City Disposal Serv.,
Inc., supra, at 4.
3. Shortly after Monterey was issued, the court, consistent with our
opinion, entered judgment for the plaintiffs. Parola v. Weinberger,
No. C-85-20303-WAI (N.D. Cal. Sept. 12, 1986). This decision was
appealed to the United States Court of Appeals for the Ninth Circuit
which reviewed de novo the district court's interpretation of the
applicable statutes and affirmed the lower court decision holding that
federal installations were required to comply with local arrangements
for solid waste collection and disposal, including garbage collection
franchises. Parola v. Weinberger, 848 F.2d 956 (9th Cir. 1988).
4. This regulation has remained unchanged from the date of our prior
decision.
5. Under the California Solid Waste Management Plan, local governments
(city and county) are responsible for aspects of solid waste handling
that are of a local concern. This includes such aspects as frequency
and means of collection, level of services, charges and fees, and
whether collection services are provided by means of an exclusive or
non-exclusive franchise. Cal. Public Resources Code sec. 40059 (West
1996).
6. The Navy has advised our Office that the appeal of the district
court's decision in Solano Garbage Co. v. Cheney, supra, was withdrawn
by the government on December 12, 1992, several months after we issued
our decision in the Concord Disposal protest.
7. We also noted that two other federal district courts had previously
issued opinions which conflicted with Solano Garbage Co. v. Cheney.
See Carmel Marina Corp. v. Carlucci, No. C-87-20789-WAI (N.D. Cal.
Apr. 20, 1988); Waste Management of N. Am., Inc. v. Weinberger, No.
CV-87-4329-DT (C.D. Cal. Sept. 28, 1987), aff'd on other grounds, 862
F.2d 1393 (9th Cir. 1988).
8. Section 4002(a) of RCRA, 42 U.S.C. sec. 6942(a), provides that EPA
"shall by regulation publish guidelines for the identification of
those areas which have common solid waste management problems and are
appropriate units for planning regional solid waste management
services."
9. Section 4006 of RCRA, 42 U.S.C. sec. 6946(a), provides in part that:
the Governor of each state, after consultation with local
elected officials, shall promulgate regulations based on
[EPA's] guidelines identifying the boundaries of each area
within the State which . . . is appropriate for carrying
out regional solid waste management.
Section 4006(b) of RCRA, 42 U.S.C. sec. 6946(b), adds in relevant part
that:
the State, together with appropriate elected officials of
general purpose units of local government, shall jointly
(A) identify an agency to develop the State plan and
identify one or more agencies to implement such plan, and
(B) identify which solid waste management activities will,
under such State plan, be planned for and carried out by
the State and which such management activities will, under
such State plan, be planned for and carried out by a
regional or local authority or a combination of regional
or local and State authorities.
10. The protester similarly argues that 40 C.F.R. sec. 255.33 requires
that Camp Pendleton be construed as an incorporated municipality
because it is a major federal facility, such that the San Diego County
ordinance is applicable, inasmuch as it only applies to unincorporated
areas of the county. This argument also fails because the EPA
regulation requires treatment of major federal facilities as
incorporated municipalities solely for the limited purposes discussed
above.