TITLE:   Mark Dunning Industries, Inc., B-289378, February 27, 2002
BNUMBER:  B-289378
DATE:  February 27, 2002
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Decision

Matter of: Mark Dunning Industries, Inc.

File: B-289378

Date: February 27, 2002

Karl Dix, Jr., Esq., Smith, Currie & Hancock, for the protester.

Maj. Ralph J. Tremaglio, III, and Col. Michael R. Neds, Department of the
Army, for the agency.

Louis A. Chiarella, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In a solicitation for trash collection services, requirements that offerors
employ an individual household weighing system (in order to provide the
agency with data on the trash and recycling habits of family housing
residents) and utilize a specific landfill site are not unduly restrictive
where the requisite weighing system and the landfill site are available to
all prospective offerors.

DECISION

Mark Dunning Industries, Inc. protests the terms of request for proposals
(RFP) No. DAKF23-01-R-0204, issued by the Department of the Army for trash
collection services at Fort Campbell, Kentucky. Dunning asserts that the
requirements for an individual household trash weighing system and the
mandatory use of a particular landfill site are unnecessary to meet the
agency's needs.

We deny the protest.

The RFP contemplates the award of a fixed-price contract for a base year,
with four 1-year options, to provide refuse collection and recycling
services at Fort Campbell, Kentucky. The solicitation's scope of work
includes the installation's industrial complex, hospitals, and training
locations, as well as the on-post Army Family Housing (AFH) areas. The RFP
provides offerors with estimated quantities of work, and states the Army's
objective to reduce by 40 percent by 2005 the volume of solid waste that is
disposed in landfills. [1] RFP, tech. exh. 2; amend. 3, sect. C.1.

On November 21, 5 days before the amended RFP's closing date for receipt of
proposals, Dunning protested various aspects of the solicitation to our
Office as unduly restrictive or in excess of the agency's needs. [2]

Dunning first challenges the solicitation requirement for an individual
household trash weighing system. The RFP requires offerors to provide trash
trucks equipped with an on-board computerized weighing system capable of
automatically recording the amounts of refuse and recycling produced by each
AFH household. RFP amend. 3, sect. C.4.2. Specifically, the contractor is to
install both indicating elements and radio frequency transponder devices in
each of the 4,886 96-gallon refuse containers and 4,240 64-gallon recycling
containers used by AFH residents. [3] Id.; RFP amend. 3, sect.sect. B.0002AA-AD;
B.0002AF. As the trash truck's rear tipper raises each refuse container, the
scale mounted to the body of the truck weighs the full container. The weight
is then recorded and transmitted by the container's radio frequency
transponder to the computer system in the truck's cab. After emptying the
contents of the refuse container into the truck, the container is then again
weighed empty, so that a net weight can be computed and recorded, before
returning the container to the ground (a process requiring 6 to 9 seconds).
Agency Report, Tab D.8, Specification for Rear Tipper Scale System, at 1. An
identical weighing and recording process is used for the recycling
containers. The on-board computerized weighing system must also generate
reports listing each container, the weight of the refuse or recyclable
materials, the date and time of collection, and the disposition (e.g.,
landfill, recycle station). The contractor is to provide the reports,
unaltered, to the agency on a daily basis. RFP amend. 3, sect. C.4.2.

The protester argues that this requirement is costly and unnecessary because
the pricing schedule provides that the contractor will be paid on the basis
of total refuse disposed of, as calculated by the landfill, and not upon the
individual weights of trash collected. [4] Dunning points to the fact that
the agency can determine the total amounts of AFH refuse and recycling, and
thus the associated diversion rate, from the information generated under the
current contract without this new requirement. Dunning also contends that
there are methods far easier and cheaper than an individual household
weighing system to discern the recycling efforts of AFH households. [5]

In response, the agency maintains that the requirement for an individual
household trash weighing system is an essential part of the installation's
waste management program. The agency acknowledges that the pertinent DOD
policy applies only to the military installation as a whole, and does not
dictate the method by which installations achieve the established trash
reduction goal. Nevertheless, as part of its waste management efforts, the
Army has decided at Fort Campbell to attempt enforcement of the 40 percent
recycling goal on each on-post household by monitoring each household's
trash and recycling habits. By gathering information on the amounts of
refuse and recycling of each family residing on post, the Army can then know
specifically those households where recycling rates are low. Weighing only
the total amounts of AFH refuse and recycling does not achieve this same
result. The Army finally notes, and the protester does not dispute, that the
individual household trash weighing system is readily available to all
offerors.

A contracting agency has the discretion to determine its needs and the best
method to accommodate them. Parcel 47C LLC, B-286324, B-286324.2, Dec. 26,
2000, 2001 CPD para. 44 at 7. However, in preparing a solicitation, a
contracting agency is required to specify its needs in a manner designed to
achieve full and open competition, and may include restrictive requirements
only to the extent they are necessary to satisfy the agency's legitimate
needs. 10 U.S.C. sect. 2305(a)(1)(A)(i), (B)(ii) (2000). Where a protester
challenges a specification as unduly restrictive, the procuring agency has
the responsibility of establishing that the specification is reasonably
necessary to meet its needs. The adequacy of the agency's justification is
ascertained through examining whether the agency's explanation is
reasonable, that is, whether the explanation can withstand logical scrutiny.
Chadwick-Helmuth Co., Inc., B-279621.2, Aug. 17, 1998, 98-2 CPD para. 44 at 3. A
protester's mere disagreement with the agency's judgment concerning the
agency's needs and how to accommodate them does not show that the agency's
judgment is unreasonable. See AT&T Corp., B-270841 et al., May 1, 1996, 96-1
CPD para. 237 at 7-8.

Here, Dunning is essentially challenging the agency's decision that it needs
to weigh each household's refuse and recyclables. While we understand that
the protester believes that the agency's decision is irrational (that the
weighing of each household's trash is costly, inefficient, and ineffective),
this assertion does not state a valid basis of protest. In our Office's
review of solicitations, as explained above, we consider whether there is an
undue restriction on competition. Here, Dunning has made no showing that the
agency's challenged requirement is restrictive of competition, given that
the trash weighing system is equally available to all potential competitors.
[6] As such, Dunning's challenge is not for resolution by our Office. [7]
See APTUS Co., B-281289, Jan. 20, 1999, 99-1 CPD para. 40 at 4; AT&T Corp.,
supra.

Dunning also challenges the RFP requirement that offerors use only the
Bi-County Regional Landfill for refuse disposal. The protester argues that
there is no basis for this requirement and that it eliminates the
competitive pressure on landfills to keep rates low.

We find that the agency's decision to require that offerors use a specific
landfill site is unobjectionable because it is reasonably necessary to
satisfy a legitimate need of the government. It is undisputed that the
disposal of Fort Campbell's refuse occasionally results in the unintended
disposal of unexploded ordnance. This situation necessitates the dispatch of
an Army explosive ordnance disposal unit to handle the situation. The
Bi-County Regional landfill is located approximately 6 miles from post, and
is 34 miles closer than the next nearest landfill. The close proximity
permits the Army to respond quickly, while preserving the ability to respond
to other exigencies that may arise. The agency also references "established
partnerships for training of munitions handling and recycling support" with
this landfill site. Contracting Officer's Statement at 6. Additionally, as
all prospective offerors have equal access to the required landfill site,
the agency's requirement is not restrictive of competition. [8]

Dunning finally objects to the RFP's pricing schedule for landfill disposal
fees. The protester asserts that, as the solicitation requires offerors to
bid a lump sum amount, but will base payment on the basis of the actual
landfill fees invoiced, the RFP is defective because offerors could "bid
low" and "get reimbursed high."

This argument is based on a misapprehension of the RFP. The solicitation, as
amended prior to the filing of the protest, requires that offerors use
predetermined or "plug-in" figures for the landfill disposal fees, although
contractors will be reimbursed only the actual fees charged by the Bi-County
Regional Landfill. RFP amend. 3, sect.sect. B.0001AA-AB. The required use of plug-in
figures, when combined with the agency's determination to make payment to
the contractor based on the actual landfill fees invoiced, precludes the
potential problem that Dunning advances in its protest.

In its comments on the agency report, the protester contends that the RFP's
required use of plug-in figures for the landfill disposal fees is also
improper essentially because it neutralizes a competitive advantage that
Dunning currently possesses vis-ï¿½-vis its competitors in using this facility
and that "normalizing" the prices offered for landfill fees violates the
statutory requirement that price be considered in every evaluation. These
arguments are untimely because this requirement was unchanged from when
Dunning filed its protest, yet these arguments were not made until Dunning
filed its comments. Our Bid Protest Regulations do not contemplate the
unwarranted piecemeal presentation of protest issues. PCB Piezotronics,
Inc., B-254046, Nov. 17, 1993, 93-2 CPD para. 286 at 5. A protester may not
delay raising additional protest grounds, where, as here, the protester
should have been aware of those grounds at the time of filing its initial
protest, notwithstanding that such arguments were filed prior to the closing
date for receipt of proposals because the agency had extended the closing
date because of the protest. Marine Indus., Ltd., B-225722.3, July 10, 1987,
87-2 CPD para. 30 at 2.

The protest is denied.

Anthony H. Gamboa
General Counsel

Notes

1. The impetus for the agency's trash reduction goal is a May 13, 1998
Department of Defense (DOD) policy memorandum establishing that "[b]y the
end of [fiscal year] 2005, ensure the diversion rate for non-hazardous solid
waste is greater than 40%, while ensuring integrated non-hazardous solid
waste management programs provide an economic benefit when compared with
disposal using landfilling and incineration alone." The DOD policy also
requires each military installation to report annually its total solid waste
diversion rate. Agency Report, Tab D.7, DOD Pollution Prevention Measure of
Merit (May 13, 1998), at 1.

2. On November 26, the agency again amended the RFP and extended
indefinitely the proposal closing date, pending our Office's resolution of
Dunning's protest. RFP amend. 5.

3. The numerical disparity between refuse and recycling containers results
from the fact that the larger AFH households are provided more than one
refuse container.

4. Dunning contends that the cost for the challenged requirement is
approximately $750,000, a figure based on the purchase of the system's
components and the expenses associated with the additional trucks and crews
necessary to offset the slowness of the individual container weighing
system. The Army contends, based upon the assumption that no additional
trash trucks and crews would be necessary, that the cost for the individual
household weighing system requirement is approximately $229,575. Memorandum
to Contracting Officer 2-3 (Jan. 18, 2002).

5. Dunning suggests that a digital camera would be sufficient to document
those AFH locations where recycling efforts are low. Protester's Comments at
5.

6. Dunning also reasons that the data generated by this weighing system will
be inaccurate and not entirely usable because large volumes of refuse
located outside of the containers will not be weighed. However, the RFP
requires the contractor to refill and reweigh the container with any refuse
within 10 feet of the container. RFP amend. 3, sect. C.5.2.3.6.

7. Dunning also argues that the Army has not complied with the economic
benefit analysis as required by the same DOD policy upon which the agency
relies for its weighing system requirement. However, we do not review a
protest alleging violation of an internal agency policy, since this is a
matter of compliance with executive branch policy, rather than statute or
regulation. Modern Techs. Corp. et al., B-278695 et al., Mar. 4, 1998, 98-1
CPD para. 81 at 15.

8. To the extent that Dunning argues that the Army may incur additional
costs because of the absence of competition between landfills, this does not
state a valid basis of protest, since there is no apparent attendant
competitive prejudice.