BNUMBER: B-279602.2; B-279602.3
DATE: October 15, 1998
TITLE: Thermal Combustion Innovators, Inc.--Protest and
Reconsideration, B-279602.2; B-279602.3, October 15, 1998
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Matter of:Thermal Combustion Innovators, Inc.--Protest and
Reconsideration
File:B-279602.2; B-279602.3
Date:October 15, 1998
Raymond C. Schreck, Esq., for the protester.
Merilee D. Rosenberg, Esq., and Philip S. Kauffman, Esq., Department
of Veterans Affairs, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Under solicitation providing for award on the basis of price,
including option years, selection of offeror with lowest total price
for base and option years was reasonable and consistent with
solicitation.
2. Request for reconsideration that reiterates arguments made
previously and merely expresses disagreement with prior decision does
not meet standards for granting reconsideration.
DECISION
Thermal Combustion Innovators, Inc. (TCI) protests the award of a
contract to Amaritime Environmental Solutions, Inc. under request for
proposals (RFP) No. 600-018-98, issued by the Department of Veterans
Affairs (VA) for medical waste removal and disposal services. The
protester also requests reconsideration of our decision, Thermal
Combustion Innovators, Inc., B-279602, July 1, 1998, 98-2 CPD
para. 3, in which we denied TCI's protest against the terms of the
solicitation.
We deny the protest and the request for reconsideration.
On February 17, 1998, the agency issued the RFP for a fixed-price
contract to furnish labor, materials, equipment, transportation, and
other items necessary for the removal, storage, treatment, and
disposal of certain specified types of medical waste at four VA
facilities in southern California, for an initial 1-year period, with
four 1-year option periods. RFP sec. A. The solicitation provided for
award on the basis of price and contained the clause at Federal
Acquisition Regulation (FAR) sec. 52.217-5 providing that, unless the
agency determined it not to be in the government's best interests, the
agency would evaluate offers by adding the total price for all options
to the price for the base year. RFP sec. M.1, M.2.
By letter dated March 10, TCI filed several objections to solicitation
provisions with the contracting officer. On March 13, the agency
issued an amendment to the RFP and provided a letter responding to
TCI's objections. On March 19, TCI filed a protest with the agency.
The agency proceeded with the receipt of offers as scheduled, on March
20, and 3 days later, TCI filed a protest with our Office, which we
denied by decision dated July 1. TCI requested reconsideration of
this decision on July 13, and the VA awarded a contract to Amaritime 3
days later. TCI then filed a second protest with our Office.[1]
The protester contends that its price for the initial 1-year period of
performance is lower than Amaritime's and that the selection of
Amaritime was therefore improper given that the solicitation provided
for award based on low price.
In reviewing an agency's evaluation and selection decisions, we
examine them to ensure that they were reasonable and consistent with
the stated criteria. LTR Training Sys., Inc., B-274996, B-274996.2,
Jan. 16, 1997, 97-1 CPD para. 71 at 4. As noted above, the RFP here
included FAR sec. 52.217-5, providing that prices would be evaluated by
adding the total price for all options to the price for the base year
unless doing so is determined not to be in the government's best
interest. Where that clause is properly included in a solicitation,
the FAR requires the evaluation of offers on the basis of all options
unless the contracting officer determines that evaluation would not be
in the best interests of the government such as where there is a
reasonable certainity that funds will be unavailable to permit
exercise of the options. FAR sec. 17.206; see Crowley Co., Inc.,
B-258967, Feb. 21, 1995, 95-1 CPD para. 105 at 4.
We see no basis to object to the contracting officer's decision to
evaluate all option prices here. Although the agency has the right to
determine that it is in the government's best interest to consider
only base period prices, the agency made no such determination here;
on the contrary, the contracting officer advises our Office that she
considers it reasonably certain that the agency will exercise the
options.
TCI contends that the contracting officer could not reasonably expect
that the options would be exercised, arguing that when the same
services will be purchased over a period of time for which a number of
contractors are available, "it is unreasonable to suggest that the VA
should opt for higher priced services for [the first] two years in
order to potentially obtain slightly lower-priced services in
subsequent years more than two years from now." Protester's Comments,
Sept. 10, 1998, at 5. TCI also asserts that evaluating option prices
was improper because funding for the option years has not been
approved. TCI's first argument essentially represents a disagreement
with the agency's decision to acquire these services in future years
via exercise of the options under the contract; such disagreement does
not demonstrate that the agency's determination regarding the
reasonable likelihood of the option exercise is unreasonable. With
regard to TCI's second contention, we think the contracting officer
reasonably decided that evaluation of the option prices was
appropriate notwithstanding the lack of current funding for the option
years based on the reasonable likelihood that future funding will be
made available in light of the type of services being procured here
and the continuing need for them.[2] See Charles J. Merlo, Inc.,
B-277384, July 31, 1997, 97-2 CPD para. 39 at 3-4 (agency need not be
"clairvoyant" in forecasting the availability of option funding). In
sum, based on the record here, we find the evaluation of prices and
the selection of Amaritime reasonable and consistent with the
solicitation criteria.
In our prior decision, we dismissed TCI's assertion that the
solicitation should have been set aside for small businesses because a
small business, Amaritime, was in line for award, notwithstanding that
the agency issued the solicitation on an unrestricted basis. Under
these circumstances, TCI, which was not the lowest-priced small
business offeror, was not an interested party to challenge the
agency's failure to set the solicitation aside for small businesses.
See GTA Containers, Inc., B-240422, Nov. 14, 1990, 90-2 CPD para. 396 at
2-3. We also denied TCI's protest against a solicitation requirement
for providing portable, hand-held radiation scanners because the
protester failed to respond to the agency's argument that the
requirement was intended as an added precaution to ensure compliance
with Nuclear Regulatory Commission regulations; further, despite the
protester's allegations that there were no such scanners available on
the market, the record showed that there were several firms able to
locate such scanners for the purposes of preparing an offer.[3]
In requesting reconsideration of our earlier decision, TCI essentially
argues that, as the lowest-priced offeror for the base year, it is an
interested party for purposes of filing a protest against the
solicitation. As noted above, this argument was also a part of TCI's
protest here, and we find no merit to it. Under our Bid Protest
Regulations, to obtain reconsideration, the requesting party must show
that our prior decision contains either errors of fact or law or
present information not previously considered that warrants reversal
or modification of our decision. 4 C.F.R. sec. 21.14(a) (1998); Eastman
Kodak Co.--Recon., B-271009.2, Oct. 7, 1996, 96-2 CPD para. 136 at 3. The
remainder of TCI's request, which consists almost entirely of
repetition of the arguments that it made before and expressions of
disagreement with our findings, does not meet our standard for
granting reconsideration. Gordon R.A. Fishman--Recon., B-257634.4,
Sept. 9, 1996, 96-2 CPD para. 110 at 2-3.
The protest and request for reconsideration are denied.
Comptroller General
of the United States
1. TCI contends that our Office should ignore the contents of the
report because the agency was 4 days late in providing a copy of it to
the protester. A delay in the submission of the agency report does
not provide a basis to disregard the report and its contents. See
Diesel Parts of Columbus, B-200595, July 20, 1981, 81-2 CPD para. 50 at
3-4.
2. The protester contends that the agency's attempt to renegotiate
prices for option periods under two of its existing contracts supports
its position that evaluation of option prices is not in the
government's best interests. The documents supplied by TCI are
preliminary notices of intent to exercise the options under TCI's
contracts and state only that the actual notice would be sent after
review of prices. This statement is consistent with FAR sec.
17.207(c)-(d), which requires that, prior to exercising an option, a
contracting officer must determine, inter alia, that the option price
is better than those otherwise available, by issuing a new
solicitation or by conducting a market survey, or by determining that
the time between the award of the contract containing the option and
the exercise of the option is so short that it indicates the option
price is the lowest price obtainable or the more advantageous offer.
TCI's documents contain no indication that the agency is intending to
renegotiate the option price.
3. With regard to the scanner requirement, TCI's counsel contends that
the protester would have responded to the agency's arguments if he
could have shared with his client documents that the agency had marked
as protected. Under the terms of the standard protective order issued
in connection with TCI's protest, we may review whether documents are
properly marked as protected. We will not conduct such a review,
however, where, as here, it is made for the first time in connection
with a request for reconsideration.