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.