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
**********************************************************************

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.