TITLE: Safety-Kleen (Pecatonica), Inc., B-290838, September 24, 2002
BNUMBER: B-290838
DATE: September 24, 2002
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Safety-Kleen (Pecatonica), Inc., B-290838, September 24, 2002
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: Safety-Kleen (Pecatonica), Inc.
File: B-290838
Date: September 24, 2002
William E. Hughes III, Esq., Whyte Hirschboeck & Dudek S.C., for the
protester.
J. Michael Sawyers, Esq., Drug Enforcement Administration, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
Agency properly excluded protester's proposal from the competitive range
for four contract areas under request for proposals (RFP) for cleanup of
clandestine drug laboratories where evaluators reasonably concluded that
proposal was not among the most highly rated based on protester's failure
to propose response facilities for some contract areas in locations
designated in RFP, to offer an adequate level of staffing for one contract
area, and to furnish any detail regarding its plans for subcontracting
with small disadvantaged businesses.
DECISION
Safety-Kleen (Pecatonica), Inc. (SKI) protests the exclusion of its
proposal from the competitive range for several contracts to be awarded
under request for proposals (RFP) No. DEA-01-R-0030, issued by the Drug
Enforcement Administration (DEA) for the cleanup of clandestine drug
laboratories.
We deny the protest.
The DEA explains by way of background that its mission of enforcing
federal narcotics laws requires the seizure and destruction of both
illicit drugs and the facilities in which they are manufactured, and that
destruction of the clandestine laboratories sometimes entails the disposal
of environmentally hazardous chemicals. Agency Memorandum of Law at 1.
To ensure its ability to meet its environmental clean-up responsibilities,
the agency issued the solicitation at issue here, seeking a contractor to
*do all things necessary for or incident to, the performance of
characterizing, packing, loading, transporting, storing, analyzing and
disposing of hazardous waste seized at clandestine drug laboratories . . .
.* RFP S: B.1.1.
The RFP divided the country into 44 *contract areas,* and contemplated the
award of an indefinite-quantity/indefinite-delivery contract for a base
period of
1 year and up to four 1-year options for each area.[1] Contract areas of
relevance to this protest are 24-03 (Iowa), 25-03 (North Dakota, South
Dakota, and Minnesota), 26-03 (Wisconsin and the Upper Peninsula of
Michigan), and 27-03 (Northern Illinois and Indiana) (hereinafter referred
to as contract areas 24, 25, 26, and 27 respectively). RFP attach. J.2.
The solicitation designated one or two *contract centers* in each contract
area,[2] and advised offerors that points would be deducted from the
scores of offerors who failed to propose response facilities located in
the specified centers.[3]
The RFP provided for award to the offeror whose proposal represented the
best value to the government. The solicitation instructed offerors to
submit both a technical proposal addressing the solicitation's technical
evaluation factors and a business proposal consisting of offeror
certifications, a price schedule, a small business subcontracting plan,
and a small disadvantaged business participation plan. The solicitation
advised that the technical proposal would receive paramount consideration
in the selection of an awardee (or awardees), except in the event that two
or more proposals received approximately equal technical ratings.
Evaluation factors and subfactors and their respective weights were as
follows:
Factor
Weight
1. Technical Approach/Resources 450
points
a. Technical Approach 200
points
b. Personnel/Equipment/Material 150 points
c. Health and Safety
50 points
d. DEA Security Clearances 50 points
2. Resource Conservation and Recovery Act
(RCRA) Treatment, Secure Storage and Disposal 300 points
a. Treatment/storage/disposal facility letters
of commitment 200
points
b. Physical
Security 100 points
3. Administrative/Management
Services 250 points
a. Problem
Solving 100 points
b.
Paperwork 100
points
c.
Training
50 points
4. Past performance (to be evaluated under foregoing
three factors, rather than as a separate criterion)
5. Small Disadvantaged Business (SDB) Participation Plan
(to be included in the Business Proposal) 200 points
Twenty-three companies responded to the RFP, some bidding on a single
contract area and others bidding on multiple areas. SKI submitted offers
for only contract areas 24, 25, 26, and 27. For contract area 24, a total
of nine offers were received; for contract area 25, seven offers; for
contract area 26, four offers; and for contract area 27, eight offers. A
technical evaluation panel reviewed the proposals and assigned them the
following point scores:
Contract Area 24
Offeror Technical Score Proposed
Cost (in millions)
Offeror A
1089 12.1
Offeror B
1087 9.1
Offeror C
895 [Deleted]
Offeror D
862 [Deleted]
Offeror E
834 [Deleted]
SKI
795 13.3
Offeror F
605 [Deleted]
Offeror G
585 [Deleted]
Offeror H 504
[Deleted]
Contract Area 25
Offeror Technical Score Proposed
Cost (in millions)
Offeror A
1092 5.9
Offeror B
1069 [Deleted]
Offeror C
872 [Deleted]
SKI
783 8.0
Offeror D
722 [Deleted]
Offeror E
650 [Deleted]
Offeror F
594 [Deleted]
Contract Area 26
Offeror Technical Score Proposed
Cost (in millions)
Offeror A
1094 7.6
Offeror B
1072 4.4
Offeror C
892 [Deleted]
SKI
776 5.5
Contract Area 27
Offeror Technical Score Proposed
Cost (in millions)
Offeror A
1092 9.1
Offeror B
1079 [Deleted]
Offeror C
961 [Deleted]
Offeror D
910 [Deleted]
Offeror E
889 [Deleted]
Offeror F
872 [Deleted]
SKI
776 13.3
Offeror G
685 [Deleted]
For contract areas 24 and 26, the TEP determined that the competitive
range consisted of the proposals from Offerors A and B, whereas for
contract areas 25 and 27, the TEP included only Offeror A's proposal in
the competitive range. With regard to SKI's proposal specifically, the
TEP noted in connection with contract areas 25 and 26 that the proposal
had not been included in the competitive range because while SKI had
submitted the second lowest cost proposal, its technical score was too low
for consideration. Technical Evaluation Panel Report at 43. Similarly,
with regard to contract area 27, the TEP explained that SKI's cost
proposal was *significantly higher* than Offeror A's, and in addition, its
technical score was *too low for consideration.* Id. at 45.[4]
By letter dated June 27, 2002, the contracting officer notified the
protester that its proposal had not been included in the competitive range
for any of the four contract areas at issue here.[5] The letter noted the
following areas of deficiency in the protester's proposal:
--The RFP required the proposal to contain specific contract
centers for responses. SKI's proposal stated that several of its response
facilities were not located in the contract centers.
--SKI's proposed level of staffing for Iowa, consisting of two
chemists and one truck, was inadequate for the level of activity in that
area.
--SKI's SDB Participation Plan was not sufficiently detailed.
SKI takes issue with the agency's evaluation of its proposal, arguing that
it should have been included in the competitive range for all four areas
for which it submitted an offer.
The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable exercise of discretion of the
procuring agency, and in reviewing an agency's evaluation of proposals and
subsequent competitive range determination, we will not evaluate the
proposals anew in order to make our own determination as to their
acceptability or relative merits; rather, we will examine the record to
determine whether the documented evaluation was fair and reasonable and
consistent with the evaluation criteria, as well as procurement statutes
and regulations. Ervin & Assocs., Inc., B-280993, Dec. 17, 1998, 98-2 CPD
P: 151 at 3. An agency is not required to retain in the competitive range
a proposal that is not among the most highly rated ones or that the agency
otherwise reasonably concludes has no realistic prospect of award.
Federal Acquisition Regulation S: 15.306(c)(1); SDS Petroleum Prods.,
Inc., B-280430, Sept. 1, 1998, 98-2 CPD P: 59 at 5.
First, the protester argues that it was improper for the agency to
downgrade its proposals for contract areas 24 and 25 for having failed to
propose response facilities in the designated contract centers when it did
in fact propose to locate a response facility in the designated contract
center for area 24 (i.e., Des Moines) and in one of the two designated
contract centers for area 25 (i.e., Minneapolis).
As to contract area 24, the agency asserts, and the report shows, that the
protester's proposal was not downgraded based on the location of its
response facility, which was properly sited in Des Moines; rather, as the
contracting officer notes, SKI *lost points from other aspects of its
technical proposal for Contract Area 24.* Contracting Officer's Statement
at 3. With regard to contract area 25, on the other hand, SKI was
penalized because while it proposed a response facility in one of the
designated contract centers (Minneapolis), it did not propose a response
facility in the other designated center (Sioux Falls). The downgrading of
SKI's score based on the protester's failure to offer a response facility
located in Sioux Falls was consistent with the RFP's evaluation scheme,
which specifically advised offerors that points would be deducted from
their technical scores in the event that a contract area contained two
contract centers and they proposed a response facility in only one of the
two centers. [6]
RFP S: L/M.16, P: E.
The protester further argues that the agency's decision to downgrade its
proposal based on the location of its response facilities ignores its
proven ability, as the incumbent contractor for several contract areas, to
provide good service from response facilities located outside the contract
centers. The protester also states that 99 percent of pick-ups occur
outside the contract centers, and that, in many cases, its response
facilities are closer to the response sites than they would be if located
in the contract centers.
Again, we note that the RFP placed offerors on notice that one of the
factors that would be considered in evaluating their technical approaches
was the location of their proposed response facilities, and that offerors
would lose points for failing to locate response facilities in the
designated contract centers. Thus, while offerors were to receive credit
in the technical evaluation for strong past performance, they were also to
lose points for failing to locate response facilities in the designated
contract centers. In other words, regardless of the quality of an
offeror's past performance, it would have been inconsistent with the RFP's
stated evaluation scheme for the evaluators to fail to downgrade a
proposal that did not offer response facilities located in the contract
centers. Any objection to the evaluation scheme now is untimely since, to
be timely, a protest objecting to the terms of a solicitation must be
filed prior to the closing date for receipt of proposals. Bid Protest
Regulations, 4 C.F.R. S: 21.2(a)(1) (2002).
The protester also takes issue with the agency determination that its
proposed level of staffing for Iowa (contract area 24), consisting of two
chemists and one truck, was inadequate for the level of activity in that
contract area. The protester notes that it stated in its proposal that:
[a]dditional personnel may be added, as needed. Depending on the physical
location of the removal site, or should additional resources be needed--in
the case of subsequent requests--teams from either SK (Pecatonica) or the
Eagen, MN office will be dispatched to respond.
SKI's Proposal at 8. The protester contends that the agency should expect
that upon award, each contractor will evaluate the resources needed to
perform the contract and staff appropriately. SKI further notes, with
regard to equipment, that while its proposal identified only one vehicle
located in Iowa, it also identified a number of vehicles located in
adjacent contract areas and stated:
The above [vehicle summary] lists the primary resources at each Response
Facility that will be used as first response to a removal activity. Any
of the other resources listed in this table will be used, as needed, to
assure satisfactory completion of the job or jobs. In addition to the
above list, our company owns and operates over 1,300 transport vehicles
throughout the country capable of transporting any form of hazardous
waste. Safety-Kleen also has rental agreements in place with national
equipment/vehicle suppliers (e.g. Hertz, Ryder) that allow Safety-Kleen to
supply any additional equipment required on a timely basis.
Id. at 40. According to the protester, these aspects of its proposal,
coupled with its performance as an incumbent, demonstrate that it has the
necessary staff and resources to perform the contract.
The protester's argument is in essence that it proposed adequate staffing
and vehicles by offering to add further personnel and vehicles as needed.
In our view, however, it was reasonable for the evaluators to consider
what the protester was committing to furnish in the event that its
proposal were accepted, i.e., in the case of Iowa, two chemists and one
truck, in evaluating the protester's proposal.
Finally, SKI argues that its proposal should not have been downgraded for
the lack of detail in its SDB Participation Plan because while the plan
did not discuss all of the factors identified in the RFP, it did
*indicate[] Safety-Kleen's commitment, methods, procedures, and goals in
utilization of SDB firms.* Protest at 6.
Regarding the protester's argument that its proposal should have received
a higher score under the SDB Participation Plan evaluation factor, we are
not persuaded that it was unreasonable or inconsistent with the stated
evaluation criteria for the agency to have assigned SKI a minimal score
(i.e., 10 of a maximum possible of 200 for each area) under the SDB
Participation Plan factor. The RFP placed offerors on notice that their
proposals would be evaluated under the SDB Participation Plan factor on
the basis of the following subfactors:
1. The extent of an Offeror's commitment to use SDB concerns.
Commitment should be as specific as possible, i.e. are subcontract
arrangements already in place, letters of commitment, etc. Specific SDB
concerns must be identified with points of contact and phone numbers.
Enforceable commitments will be weighted more heavily than unenforceable
ones. Targets expressed as dollars and percentage of total contract value
for each SDB participating will be incorporated into and become part of
any resulting contract. The extent of participation of all SDB concerns
in terms of the value of the total acquisition must be identified. . . .
2. The complexity and variety of the work SDB concerns are to
perform. Greater weight will be given for arrangements where the SDB
shall be performing a greater variety of work, and work of greater
complexity. . . .
3. Fairness, reasonableness, and realism of costs proposed by SDBs
for the work they will perform. . . .
4. Past performance of the Offeror in complying with subcontracting
plans for SDB concerns. An offeror with an exceptional record of
participation with SDB concern will receive more a favorable evaluation
than another whose record is acceptable. . . .
RFP S: L/M.18.
It is clear from the foregoing that the agency desired a high degree of
specificity from offerors in describing their SDB commitments. SKI
furnished no information regarding specific SDB commitments, however.
Instead, it merely furnished a copy of its *Small, Small Disadvantaged,
HUBZone and Woman-Owned Small Business Subcontracting Plan,* which
explained in general terms how SKI goes about identifying potential
subcontractors and administering subcontracts, and a page setting out its
subcontracting goals for this contract, including the estimated dollar
value of planned subcontracting with small disadvantaged businesses.
An agency's evaluation is dependent upon information furnished in a
proposal, and it is the offeror's burden to submit an adequately written
proposal for the agency to evaluate. Chant Eng'g Co., Inc., B-279049,
B-279049.2, Apr. 30, 1998,
98-2 CPD P: 65 at 7. SKI's proposal simply did not furnish the required
information with regard to its plan for subcontracting with SDB concerns.
Based on the informational deficiencies in this aspect of SKI's proposal,
we do not think that it was unreasonable for the agency to assign the
protester a minimal score under the SDB Participation Plan evaluation
factor.
In sum, the protester has not demonstrated that the evaluators' scoring of
its proposal was unreasonable. Moreover, it has not demonstrated that the
TEP's determination that its proposal should be excluded from the
competitive range was unreasonable. As previously noted, an agency is not
required to retain in the competitive range a proposal that is not among
the most highly rated ones or that the agency otherwise reasonably
concludes has no realistic prospect of award. Here, the evaluators
reasonably concluded, with regard to all four contract areas, that SKI's
proposal was not among the most highly rated based on its technical scores
and its price, see Matrix Gen., Inc., B-282192, June 10, 1999, 99-1 CPD
P: 108 at 4, and that it had no realistic prospect of award since for each
area there was at least one offeror that had received a significantly
higher technical score and offered a lower price than SKI. Accordingly,
we see no basis to object to the decision to exclude SKI's proposal from
the competitive range.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] The solicitation noted that while a total of 44 contracts might be
awarded, the government expected to award more than one area to a single
contractor.
RFP S: L/M.12.
[2] For contract area 24, Des Moines, Iowa, was designated as the contract
center; for contract area 25, Minneapolis, Minnesota and Sioux Falls,
South Dakota were designated; for contract area 26, Milwaukee, Wisconsin
was designated; and for contract area 27, Chicago, Illinois and
Indianapolis, Indiana were designated.
[3] Specifically, the RFP stated:
Points will be deducted from offerors whose response facilities are not
located in the Contract Center(s). Points will be deducted from offerors
whose response facility is not located in the Contract Center and/or if
there are two contract centers in a Contract Area and the offeror has a
response facility only in one Contract Center and not both.
RFP S: L/M.16, P: E.
[4] In explaining its rationale for selection of the competitive range for
contract area 24, the TEP did not mention SKI, presumably because its
technical and price rankings did not place it among the most attractive
proposals.
[5] SKI surmised early in June that it had not been included in the
competitive range for the areas in question and on June 3, filed an
agency-level protest objecting to its apparent exclusion. In her letter
of June 27, the contracting officer both responded to the protest and
furnished formal notification of the protester's exclusion from the
competitive range.
[6] We note that rather than filing comments responding to or seeking to
rebut the position taken by the agency in response to this or any of its
other arguments, SKI merely requested that its protest be decided on the
existing record.