TITLE:  American Analytical & Technical Services, Inc., B-292100, June 11, 2003
BNUMBER:  B-292100
DATE:  June 11, 2003
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American Analytical & Technical Services, Inc., B-292100, June 11, 2003

   Decision
    
    
Matter of:   American Analytical & Technical Services, Inc.
    
File:            B-292100
    
Date:              June 11, 2003
    
Kesavalu M. Bagawandoss for the protester.
Kenneth R. Pakula, Esq., Environmental Protection Agency, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Consistent with the terms in the invitation for bids, contracting agency
properly calculated evaluated prices by adding ten percent to prices bid
by all firms other than those of qualifying small disadvantaged business
concerns. 
DECISION
    
American Analytical & Technical Services, Inc. (AATS) protests the failure
of the Environmental Protection Agency (EPA) to award it a contract under
invitation for bids (IFB) No. PR-HQ-02-10708, for multi-media,
multi-concentration, organic analytical (sample analysis) services.  AATS
alleges that the agency's evaluation of bidders' prices was improper.
    

   We deny the protest.
    
The IFB, issued on August 8, 2002, sought to procure laboratory testing
services in support of EPA's investigatory and cleanup activities,
primarily with regard to hazardous waste sites nationwide, under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980.  The solicitation contemplated the award of multiple
indefinite-quantity contracts for a 1-year base period with two 6-month
option periods.
    
The IFB informed bidders that the agency planned to conduct both a full
and open competition, and a small business set-aside competition of up to
25 percent of the contract awards.  IFB, S: L.10.  Relevant to this
protest, the solicitation stated that the Small Business Administration
(SBA) 8(a) program was not applicable to this procurement.[1]  Id.  The
IFB also contained the clause at FAR S: 52.219-23, Notice of Price
Evaluation Adjustment for Small Disadvantaged Business Concerns, which
stated that the agency would, as part of the evaluation, add 10 percent to
the prices of all bidders except those of qualified small disadvantaged
business (SDB) concerns (or other bidders covered under the clause).[2] 
IFB, S: I.9.  The solicitation established that contract awards would be
made to the responsible bidders submitting the lowest evaluated prices.[3]
    
Nineteen bidders, including AATS, a large business, and Mitkem
Corporation, an SDB, submitted bids by the September 10 bid opening date. 
As part of its price evaluation, EPA added 10 percent price to the total
extended prices of non-SDB bidders.  On February 26, 2003, after
completion of both the price evaluation and responsibility determinations,
EPA made awards to eight bidders, including Mitkem and another SDB
concern.  AATS, by contrast, was determined to have the ninth lowest
evaluated price and did not receive an award.  Agency Report (AR), Tab 6,
Source Selection Decision, at 7-8.
    
On March 11, the agency notified AATS that it did not receive a contract
award; the only information provided was that AATS's *bid had a higher
evaluated price than those eligible [bidders] who received an award.*  AR,
Tab 7, Contracting Officer's Letter to AATS, March 11, 2003.  In response
to an oral inquiry by AATS on March 11 regarding the agency's award
decision, EPA informed AATS that it would not provide it a debriefing, and
directed AATS to submit its specific questions in writing.  On March 13,
AATS requested, in writing, information regarding EPA's price evaluation,
as well as the evaluation of bidders' past performance.  On March 20, AATS
learned that the agency had misplaced its written inquiry and would be
unable to reply without additional time.  That same day, AATS filed a
timely protest with our Office, challenging the agency's evaluation of
bidders' prices and the resulting decision not to award it a contract.
    
As a preliminary matter, the EPA argues that AATS's protest fails to set
forth a detailed statement of the legal and factual grounds of protest
and, therefore, should be dismissed.  The agency essentially argues that
AATS's protest does little more than rely on the protester's inability to
understand the nature of a sealed bidding procurement as well as the
failure to be one of the procurement's low bidders as grounds for
protest.  We disagree.
    
Our Bid Protest Regulations require that a protest include a detailed
statement of the legal and factual grounds of a protest, 4 C.F.R. S:
21.1(c)(4) (2003), and that the grounds stated be legally sufficient.  4
C.F.R. S: 21.1(f).  These requirements contemplate that protesters
provide, at a minimum, either allegations or evidence that the protester
will prevail in its claim of improper agency action.  Military Agency
Servs. Pty., Ltd., B-290414 et al., Aug. 1, 2002, 2002 CPD P: 130 at 4
n.4.  Here, as shown below, AATS's protest adequately sets forth the
protester's assertion that the agency's price evaluation was inconsistent
with the terms of the solicitation, and resulted in the wrongful selection
of Mitkem instead of AATS for one of the awarded contracts.  In other
words, AATS's protest here does sufficiently allege that the agency took
particular actions and that these actions were contrary to law or
regulation.[4]  See Charleston Marine Containers, Inc., B-283393, Nov. 8,
1999, 99-2 CPD P: 84 at 4. 
    
AATS charges that the agency's evaluation of bidders' prices was
improper.  Specifically, AATS contends that the agency should not have
applied the SDB preference to the price evaluation of any bids.  AATS
argues that had the SDB preference not been applied to bidders' prices,
then its evaluated price would have been lower than that of Mitkem, one of
the SDB awardees.  EPA contends that application of the SDB preference was
entirely consistent with the terms of the solicitation.  We agree with the
agency.
    
The evaluation of offers must be in accordance with the solicitation's
evaluation provisions.  Triune Assocs., B-292005, May 13, 2003, 2003 CPD
P: __ at 2.  As set forth above, the solicitation here contained the
clause at FAR S: 52.219-23, Notice of Price Evaluation Adjustment for
Small Disadvantaged Business Concerns, which stated that the agency would
add an evaluation factor of 10 percent to the price of all bidders except
those of qualified SDB concerns.  This price evaluation adjustment applied
to the portion of the competition not set aside for small businesses.  See
FAR S: 19.1102(b)(3).  Accordingly, as part of the unrestricted
competition, the agency properly added a 10 percent factor to the price
evaluation of all non-SDB bidders, including AATS.
    
AATS does not dispute that the solicitation contained notice of the SDB
price evaluation preference.  Instead, AATS argues that the agency's
application of the SDB price evaluation adjustment was improper because of
the solicitation's provision stating that the SBA 8(a) program was not
applicable here.  The protester is mistaken.  In fact, the SDB preference
is not to be used in acquisitions that are awarded pursuant to the 8(a)
program.  FAR S: 19.1102(b)(2). 
    
In its protest AATS also challenged the evaluation of bidders' past
performance in the agency's determination of contract awards.  EPA
addressed this allegation in its report,[5] and the protester failed to
respond in its comments; thus, we consider AATS to have abandoned this
argument and will not consider it further.   MFVega & Assocs., LLC,
B-291605.3, Mar. 25, 2003, 2003 CPD P: 65 at 4.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel
    

   ------------------------

   [1] Section 8(a) of the Small Business Act, 15 U.S.C. S: 637(a) (2000),
authorizes the SBA to enter into contracts with government agencies and to
arrange for performance through subcontracts with socially and
economically disadvantaged small business concerns.  These subcontracts
may be awarded on a competitive or noncompetitive basis.  See Federal
Acquisition Regulation (FAR) S: 19.800.
[2] Likewise, the solicitation instructed bidders to represent whether
they were, among other things, SDB concerns.  IFB, S: K.5, Small Business
Program Representations.
[3] The solicitation stated that each bidder's price would be evaluated
based on the maximum ordering quantities, the consideration of all option
periods, and how the agency would weight the various contract line items
in the evaluation of price; AATS does not challenge these aspects of the
agency's price evaluation.
[4] Moreover, we find it incongruous for the agency not to provide the
protester with additional information about how bidders' prices were
evaluated, despite several requests, and then to assert that AATS's
protest is legally and factually insufficient.
[5] EPA pointed out that this procurement was conducted using sealed bid
procedures, with award being made on the basis of price and price-related
factors only.  Accordingly, consideration of bidders' past performance was
in the context of the agency's determination of the bidders'
responsibility, not part of the evaluation of bids.