BNUMBER:  B-279602             
DATE:  July 1, 1998
TITLE: Thermal Combustion Innovators, Inc., B-279602, July 1, 1998
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Matter of:Thermal Combustion Innovators, Inc.

File:B-279602            
        
Date:July 1, 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.  Protester is not an interested party to complain of the agency's 
failure to issue solicitation for medical waste removal services as a 
small business set-aside where another small business is in line for 
award.

2.  Requirement that contractor performing medical waste removal scan 
materials to detect radioactive material and return containers with 
such material to medical facility under certain circumstances is not 
objectionable based on agency's explanation, uncontested by protester, 
that requirement is intended as an added precaution to ensure 
compliance with regulatory requirements regarding radioactive 
materials, not as a substitute for medical and treatment facilities' 
responsibilities in dealing with hazardous waste; scanners used for 
detection are available, contrary to protester's assertion; and 
possibility that contractor will have to transport an unknown number 
of containers with radioactive material from treatment facilities to 
medical facilities, and thus will have to factor some cost into its 
price for hiring licensed hauler of radioactive waste, does not impose 
undue risk on offerors.

DECISION

Thermal Combustion Innovators, Inc. protests the terms of request for 
proposals (RFP) No. 600-018-98, issued by the Department of Veterans 
Affairs (VA) for medical waste removal and disposal services.

We deny the protest.

On February 17, 1998, the agency issued the RFP for a fixed-price 
requirements contract for medical waste removal and disposal at four 
VA facilities in southern California, for an initial 1-year period, 
with four 1-year option periods.  RFP at 2.  The VA had canceled an 
earlier RFP for the same services, in response to a protest by TCI.

The instant solicitation provides for the contractor to furnish labor, 
materials, equipment, transportation, and other items necessary for 
the removal, storage, treatment, and disposal of certain specified 
types of medical waste.  RFP at 2-3.  The RFP specifically excludes 
hazardous and radioactive waste from coverage.  RFP at 2.

As initially issued, paragraph C-9 of the RFP required the contractor 
to check containers for radioactivity prior to removal, by use of a 
"properly calibrated vehicle or hand-held portable scanner."  RFP at 
15.  The contractor was not to remove any container with radioactive 
waste.  By letter dated March 10, TCI objected to this requirement as 
duplicative of the obligations of the medical and treatment facilities 
to detect and measure radioactivity.  TCI also asserted that no 
reliable vehicle or hand-held scanners are available on the market.  
By amendment No. 2 to the RFP, dated March 13, the agency added a 
provision to paragraph C-9 specifying that the contractor is 
responsible for returning to the medical facility any container with 
radioactive material detected by the treatment facility; the rest of 
paragraph C-9 remained unchanged.  Although TCI had also protested the 
agency's failure to set the procurement aside for small businesses, 
the agency declined to modify the RFP to set it aside for small 
businesses.

One day prior to the receipt of proposals, TCI filed a protest with 
the contracting officer, asserting that the RFP should be set aside 
for small businesses and complaining that amendment No. 2 to the RFP 
did not satisfactorily address its concern about responsibility for 
detection of radioactive material.  On March 20, the agency proceeded 
with the receipt of offers as scheduled; this protest to our Office 
followed.

Under Federal Acquisition Regulation (FAR)  sec.  19.502-2(b), an 
acquisition with an anticipated dollar value exceeding $100,000 (such 
as this one), shall be set aside exclusively for small business 
concerns when there is a reasonable expectation that offers will be 
obtained from at least two responsible small business concerns and 
award will be made at fair market prices.  TCI contends that it has 
identified other small businesses willing to compete for the 
requirement and argues that the agency is therefore obligated to issue 
the solicitation as a small business set-aside. 

The VA argues that our Office should dismiss this aspect of TCI's 
protest because the lowest-priced, technically acceptable offeror, who 
is in line for award under the terms of the RFP, is Amaritime 
Environmental Solutions, which is another small business.[1]

Our Bid Protest Regulations define an "interested party" for purposes 
of filing a protest as an actual or prospective bidder or offeror 
whose direct economic interest would be affected by the award of a 
contract.  4 C.F.R.  sec.  21.0(a) (1998).  A party will not be deemed 
interested where it would not be in line for the protested award even 
if its protest were sustained.  See GTA Containers, Inc., B-240422, 
Nov. 14, 1990, 90-2 CPD  para.  396 at 2-3 (despite agency's failure to 
include preference for small disadvantaged business, protest is 
dismissed where, even if it were sustained, a small disadvantaged 
business other than the protester would be in line for award).

Here, TCI argues that, because the procurement was not set aside and 
it thus knew that it would be competing against large businesses, it 
was "forced . . . to propose a very low contract price"; according to 
TCI, if the competition had been limited to small businesses, it would 
have been able to offer a "fair market price"--i.e., a higher price 
than it actually offered.  TCI's comments, May 11, 1998 at 4.  The 
fact remains, however, that even with the submission of its "very low" 
price, another small business, Amaritime, submitted a lower price.  
Under these circumstances, there is no reason to conclude that TCI 
would have been in line for award if the procurement had been set 
aside.  Accordingly, we conclude that TCI is not an interested party 
to challenge the agency's decision not to set aside the procurement.

TCI also objects to the requirement for detecting and handling 
radioactive waste, principally on the grounds that the requirement 
unnecessarily duplicates the responsibilities of the medical and 
treatment facilities, and that the scanners called for are not 
available.  We see no basis to conclude that the requirement is 
improper.  VA states that the requirement was not intended to shift 
responsibility from the agency to the contractor but to act as an 
added precaution to ensure compliance with Nuclear Regulatory 
Commission regulations; TCI does not refute this assertion.  Further, 
the agency contends that, contrary to TCI's initial assertions, the 
offerors here were all able to locate vehicle or hand-held radiation 
scanners to meet the solicitation requirements; TCI similarly fails to 
respond to this argument.  Finally, TCI asserts that the possibility 
that the contractor will be required to transport containers with 
radioactive material from a treatment facility to a medical facility 
requires offerors to factor into their prices the cost of hiring a 
licensed radioactive waste hauler.  TCI argues that offerors have no 
basis to do so, since the extent of any hauling requirement is 
unknown.  We see no basis for objecting to the requirement on this 
ground, however, since the mere presence of risk in a solicitation 
does not render it inappropriate.  Alamo Contracting Enters., Inc., 
B-242458.2, Apr. 30, 1991, 91-1 CPD  para.  430 at 3-5.  

The protest is denied.

Comptroller General
of the United States

1. Section M of the RFP provided for evaluation of an offeror's 
proposed price and compliance with minimum experience requirements.  
The record shows that the contracting officer concluded that all the 
offerors satisfied the experience requirements; accordingly, the 
lowest priced offeror, Amaritime, was selected for award.