TITLE:  American Technical & Analytical Services, Inc., B-282277.5, May 31, 2000
BNUMBER:  B-282277.5
DATE:  May 31, 2000
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American Technical & Analytical Services, Inc., B-282277.5, May 31, 2000

Decision

Matter of: American Technical & Analytical Services, Inc.

File: B-282277.5

Date: May 31, 2000

Robert J. Martinez, Esq., Williams & Jensen, for the protester.

Jonathon S. Baker, Esq., Environmental Protection Agency, for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid that was previously rejected because the bidder was determined
nonresponsible under an invitation for bids contemplating multiple awards
may be revived, where the agency intends to make additional awards under the
IFB, because responsibility is to be determined based on any information
received by the agency up to the time award is proposed to be made.

DECISION

American Technical & Analytical Services, Inc. protests the award of a
contract to Laucks Testing Laboratories, Inc. under invitation for bids
(IFB) No. PR-HQ-98-00031, issued by the United States Environmental
Protection Agency (EPA), for laboratory services. American contends that the
EPA improperly allowed Laucks to revive its expired bid.

We deny the protest.

The IFB, issued July 22, 1998, was to procure laboratory services from
multiple contractors under fixed-price, indefinite-quantity contracts for a
1-year base period with 2 option years. The laboratory services were for
analyzing samples from hazardous waste sites to determine the presence and
concentration of certain organic analytes in aqueous and nonaqueous samples.
IFB sect. B.1. Among other things, the IFB required the analysis data to be
furnished to the EPA on a computer disk, defined as an electronic data
deliverable (EDD). IFB sect. C.2, exh. H. The IFB provided for award of up to 26
contracts to those bidders with the lowest prices who passed the
qualification requirements set forth in the IFB. IFB sect. M.3. The
qualification requirements consisted of a two-part test that bidders were to
take after bid opening in order to be considered responsive. IFB amend. 3, sect.
L.3, attachs. 14, 16. The IFB was amended to state that 19 contract awards
were "anticipate[d]" with no more than 3 contracts going to one bidder, and
with 9 contracts to be based on a 100-sample monthly capacity and 10
contracts to be based on a 300-sample monthly capacity. IFB amend. 3, at 2,
and amend. 5, at 3.

EPA received 23 bids at bid opening on December 12. Fourteen bids, including
American's, were eliminated from consideration on February 23, 1999. EPA
rejected American's bid because it did not meet the qualification
requirements. After an unsuccessful agency-level protest, American protested
the agency's action to our Office on May 6. Contracting Officer's Statement
at 1-2.

We sustained American's protest because the EPA treated American unequally
by providing it an incorrect version of the qualification test while
providing other bidders the correct version. We also found the qualification
test could not properly be used to reject bids in a procurement conducted
under sealed bid procedures. We therefore recommended that the EPA decide
whether the test was necessary and either cancel and resolicit the
requirement under competitive procedures if the test was necessary, or, if
the test was not necessary, determine whether American and the other
rejected bidders were responsible and if so include them in the award
consideration. American Analytical and Technical Servs., Inc., B-282277.3,
Aug. 16, 1999, 99-2 CPD para. 38 at 6-7.

Pursuant to our recommendation, the EPA determined that the qualification
test was not needed and began considering making awards to American and the
other rejected bidders, including Laucks. Contracting Officer's Statement at
2. On August 26, the EPA requested Laucks to revive its bid for an
additional period of 60 days in order to be considered for an award. Laucks
reinstated its bid on August 27. In early September, when the EPA was
preparing to consider Laucks' responsibility, Laucks informed the agency by
letter dated September 13 that Laucks probably would fail a pre-award survey
because it could not meet the EDD requirement. See Contracting Officer's
Statement at 2-3; Protest exh. 9. Thus, the EPA determined Laucks was not
responsible and rejected that firm's bid. Protest exh. 10. On September 24,
the EPA proceeded with awarding the contracts to bidders with higher bids
than Laucks until the anticipated 19 contract awards were made. Protest at
10; Contracting Officer's Statement at 3.

Following these contract awards, the EPA determined that it needed more
contracts to meet its needs, but it believed no more contracts could be
placed under the IFB in light of the language in amendments Nos. 3 and 5
indicating that only 19 contract awards were anticipated. Thus, the EPA
began meeting these requirements under the Small Business Administration's
(SBA) section 8(a) program on September 28. Contracting Officer's Statement
at 4. In late October, after learning of this action, American advised the
EPA that it believed that the agency could meet its additional requirements
under the IFB, at least up to 26 awards, based upon section M.3 of the IFB.
The agency then agreed and revived the IFB with the intention of making
seven additional awards based on a 100-sample monthly capacity. To
effectuate this action, the EPA contacted the responsive bidders who had not
yet received three awards to seek reinstatement of their expired bids.
Laucks was one of the bidders that the EPA contacted and that firm
reinstated its bid on December 21. Id. at 4-5. In January 2000, the EPA
determined Laucks was responsible and could now meet the EDD requirement.
EPA thus proposes to make award to Laucks.

American, the next bidder in line for award if Laucks does not receive an
award, protests the proposed award to Laucks. American contends that the EPA
could not properly allow Laucks to reinstate its bid without compromising
the integrity of the competitive bidding system because of Laucks' prior
actions regarding its bid. Protest at 8-10. EPA responds that the integrity
of the competitive bidding system has not been compromised here because a
bidder's responsibility is to be determined as of the time of award, which
has not yet been made to Laucks.

We agree with EPA that a bidder's responsibility is to be determined based
on any information received by the agency up to the time award is proposed
to be made to that bidder. CardioMetrix, B-255748.2, June 13, 1994, 94-1 CPD
para. 364 at 2; Vulcan Eng'g Co., B-214595, Oct. 12, 1984, 84-2 CPD para. 403 at
9-10; Federal Acquisition Regulation sect. 9.105-1. In this regard, although EPA
previously determined that Laucks lacked the technical capability to meet
the IFB requirements and thus was not responsible, after reopening the IFB
to make additional awards, it found that Laucks now has the technical
capability to meet the IFB requirements and thus is responsible. An agency
can and should reverse a previous nonresponsibility determination based on
additional information brought to its attention prior to award. Henry Spen &
Co., Inc., B-183164, Jan. 27, 1976, 76-1 CPD para. 46 at 4.

American does not dispute Laucks' current responsibility, but asserts that
to allow Laucks' bid to be revived after its rejection as nonresponsible
would compromise the integrity of the competitive bidding system. As a
general rule, a bidder may be permitted to revive its expired bid, if doing
so would not compromise the integrity of the competitive bidding system.
Esprit Int'l Corp., B-276294, Mar. 10, 1997, 97-1 CPD para. 106 at 2. We see no
adverse affect to the integrity of competitive bidding system in allowing a
bidder previously determined nonresponsible to be reconsidered for award
when the time for making awards has been extended. While American states
that Laucks caused the rejection of its bid by indicating that it could not
meet IFB requirements that it can now meet and thereby gave itself a
competitive advantage, we cannot say American obtained any kind of unfair
competitive advantage by this action, given that it could not know (since
the agency did not know), at the time it indicated that it could not perform
in accordance with the IFB, that additional awards would be made under the
IFB. Contrast id. (where a bidder initially proposed a bid acceptance period
shorter in duration than requested in the IFB and accepted by other bidders,
it may not be permitted to revive its bid because such a bidder has not
assumed as great a risk of price or market fluctuations as the other
bidders); The Vemo Co., B-243390, B-243390.2, Nov. 12, 1991, 91-2 CPD para. 443
at 3
(bid which offered bid extensions for lesser periods than requested by the
agency and offered by other bidders was properly rejected because allowing
the bidder to so mitigate its risk in extending its bid may compromise the
integrity of the competitive bidding system). Thus, we see no basis to
object to the proposed award to Laucks.

The protest is denied.

Comptroller General
of the United States