TITLE:  Envirosolve LLC, B-294974.4, June 8, 2005
BNUMBER:  B-294974.4
DATE:  June 8, 2005
**********************************************************************
   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:   Envirosolve LLC

   File:            B-294974.4

   Date:              June 8, 2005

   Carolyn Callaway, Esq., for the protester.

   James E. Hicks., Esq., Drug Enforcement Administration, 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

   Protest of agency*s failure to implement corrective action in response to
an earlier protest filed with the Government Accountability Office is
sustained where the record shows that the agency failed to implement the
corrective action it proposed to take in response to clearly meritorious
issues raised in the original protest, such that protester was put to the
expense of protesting a second time on the same ground.

   DECISION

   Envirosolve LLC challenges various actions by the Drug Enforcement
Administration (DEA), Department of Justice, concerning the establishment
of blanket purchase agreements (BPA) and the placement of purchase orders
under the BPAs with various companies for hazardous waste cleanup
services.  As explained below, Envirosolve filed an earlier protest
challenging DEA*s actions; we dismissed that protest as academic based on
DEA*s promise of corrective action.  Envirosolve now argues that we should
reconsider our dismissal as a result of DEA*s subsequent failure to
implement the promised corrective action.  Envirosolve also argues that
DEA*s failure to implement corrective action has resulted in the continued
improper issuance of noncompetitive purchase orders for cleanup services.

   We sustain the protest.

   BACKGROUND

   DEA*s mission of enforcing federal narcotics laws routinely results in the
seizure of illegal clandestine drug laboratories, and the subsequent
destruction of both illegal

   drugs and the facilities in which they are manufactured.[1]  The
destruction of clandestine drug laboratories often entails the disposal of
environmentally hazardous chemicals.  The cost of hazardous waste cleanup
for a single clandestine laboratory can range from under $1,000 to over
$100,000; the cost for a single hazardous waste cleanup action, however,
cannot be predicted or established in advance of the seizure of the
individual laboratory.  Envirosolve Protest, Oct. 12, 2004, at 3.

   DEA*s disposal of clandestine laboratory hazardous waste products is
governed by federal, state, and local environmental laws and regulations. 
As the agency operates throughout the United States, DEA*s requirement for
hazardous waste cleanup services is also a nationwide one.  In order to
meet both its need and its responsibilities, DEA has utilized the services
of hazardous waste cleanup contractors who are properly qualified in waste
management.  DEA Dismissal Request, Nov. 12, 2004, at 1.  DEA has also
accomplished the administration of its hazardous waste cleanup contractors
by dividing the country into 44 geographic areas, or *contract areas,* and
establishing contracts for the required services for one or more contract
area.

   In 2002, DEA issued a competitive request for proposals (RFP) for
hazardous waste cleanup services.  The RFP contemplated the award of an
indefinite-delivery/ indefinite-quantity contract for a 1-year base period
(October 1, 2002 to

   September 30, 2003) and up to four 1-year options for each contract area. 
The RFP noted that while a total of 44 contracts might be awarded, the
agency expected to award more than one contract area to individual
contractors (see Safety-Kleen (Pecatonica), Inc., B-290838, Sept. 24,
2002, 2002 CPD P 176, for additional details).  Envirosolve submitted a
proposal in response to the RFP and was subsequently awarded a contract to
provide hazardous waste cleanup services for 14 contract areas. 
Envirosolve Protest, Oct. 12, 2004, attach. 1, Declaration of James G.
Fehrle, at 1.

   In December 2003, as a result of perceived problems with Envirosolve*s
contract performance, DEA decided not to exercise the contract*s remaining
option periods but to recompete the contract areas then held by
Envirosolve.  On February 27, 2004, DEA issued RFP No. DEA-04-R-0003 for
hazardous waste cleanup services for 18A contract areas, including the 14
contract areas then held by Envirosolve.  Envirosolve submitted a proposal
in response to the solicitation.  On July 22, the contracting officer
notified Envirosolve that its proposal had been excluded from the
competitive range.  On August 2, Envirosolve filed a protest with our
Office
(B-294420), arguing that the agency*s evaluation of its proposal and
competitive range determination were improper.  On September 17, DEA
announced its intention to cancel the RFP, and Envirosolve*s protest was
dismissed as academic.[2]  Envirosolve*s contract with DEA expired on
September 30.

   Following its decision to cancel the solicitation, DEA was aware that as
of October 1, the agency would be without the required cleanup services
for 18 contract areas.  Moreover, DEA anticipated that several of the
affected contract areas would require a large number of cleanups during
the following fiscal year.  Accordingly, in order to meet its needs, DEA
decided to establish BPAs with various contractors for hazardous waste
cleanup services.[3]   The contracting officer established the BPAs with
various vendors by requesting that the DEA field offices identify at least
one company deemed qualified to perform hazardous waste cleanup services
for a given contract area.  DEA Dismissal Request, Nov. 12, 2004, at 3. 
The contracting officer then followed up the recommendations of the
agency*s field personnel by requesting that the potential contractors
provide certain corporate and pricing information.  Id.

   DEA subsequently established BPAs with at least 10 vendors for one or more
contract areas, thereby providing the agency with a single BPA holder for
15 of the 18 affected contract areas.  Each BPA included the labor,
material, and equipment price lists of the vendor.  Each BPA also stated
that the individual orders placed under the BPA would not exceed $100,000,
and that the period of performance was from the date of award to September
30, 2005.  At the time it established BPAs with selected companies, DEA
intended that the purchase orders subsequently issued for the required
cleanup services would only be placed with the BPA holder(s).  As the
agency explained:

   DEA is primarily focused on ensuring that the major contract areas have at
least one contractor to provide hazardous waste services.  Initially, one
BPA is being set up per contract area to allow all areas to be minimally
covered.  The DEA intends to add additional providers in each contract
area as time progresses and to allow rotation of calls among the BPA
holders.

   Id. at 3.

   On October 11, DEA began issuing purchase orders under the BPAs it had
established with selected contractors.  While some of the purchase orders
issued by DEA did not exceed $2,500, other purchase orders were for
amounts above $2,500 and below $100,000.   In each instance DEA procured
the cleanup services directly from the BPA holder for the given contract
area and did not consider or solicit quotations from other sources or
publicize its contract actions.

   On October 12, Envirosolve filed the underlying protest with our Office
(B-294974).  Envirosolve*s protest raised numerous issues regarding DEA*s
establishment and use of BPAs as the method for procuring the required
services.  Specifically, Envirosolve alleged that DEA*s use of BPAs to
obtain the required hazardous waste cleanup services failed to comply with
applicable competition requirements, and that the agency had intentionally
and improperly excluded Envirosolve from competition here.[4]  Envirosolve
Protest, Oct. 12, 2004, at 4-15.

   On January 5, 2005, DEA advised our Office that it had decided to take
corrective action as follows:

   [T]he agency agrees to discontinue issuing purchase orders [under the
BPAs] without adhering to applicable competition requirements, to be
determined on a case-by-case basis based upon the estimated size of each
order.  The agency will decide shortly upon an acquisition strategy that
will achieve the applicable competition requirements, perhaps through the
competitive award of BPAs, or the establishment of multiple BPAs with
qualified, responsible contractors and mini-competitions among BPA
holders.  The agency need to issue orders noncompetitively will be done in
accordance with the requirements of FAR S 13.106-1(b) and will not exceed
a two-month period. . . .

   [T]he agency agrees not to deliberately exclude Envirosolve from competing
for the BPAs and purchase orders here, and should the agency believe that
Envirosolve is not a responsible contractor, then it will properly refer
the issue to the [Small Business Administration] for a responsibility
determination.[5]

   DEA Notice of Corrective Action, Jan. 5, 2005, at 1.  By decision of
January 6, our Office dismissed Envirosolve*s October 12, 2004 protest,
since DEA*s corrective action rendered the protest academic.[6]

   On March 8, Envirosolve filed the current protest with our Office,
requesting that we reconsider the dismissal of its earlier protest.  In
support thereof, Envirosolve argues that the agency has failed to
implement the promised corrective action.  Specifically, Envirosolve
contends that DEA has failed to discontinue issuing purchase orders for
cleanup services without adhering to applicable competition requirements. 
Envirosolve alleges that the agency has neither competitively awarded BPAs
to companies nor conducted *mini-competitions* for the award of purchase
orders under the BPAs it has in place with vendors for the various
contract areas, as promised in its notice of corrective action. 
Envirosolve also argues that DEA has continued to deliberately exclude it
from competing for BPAs and purchase orders.  Specifically, Envirosolve
contends that it has not been afforded an opportunity to compete for
either the BPAs or the purchase orders, and appears to have been excluded
from receiving BPAs in DEA contract areas for which it is qualified and
has submitted the requisite information.

   In response to Envirosolve*s protest, DEA does not deny that it failed to
implement the promised corrective action.  Rather, the agency acknowledges
that it did not issue a solicitation for the competitive award of BPAs
with companies for the various hazardous waste cleanup contract areas
until March 10, and has yet to make any award determinations.[7]  DEA
Response, Mar. 21, 2005, at 1.  DEA also reports that it issued to
Envirosolve a BPA for 1 contract area on January 25, and for
11A additional contract areas on March 10, and is now planning to rotate
the issuance of noncompetitive purchase orders for hazardous waste cleanup
services among existing BPA holders, in an attempt to treat all vendors
fairly until the agency can establish new competitive BPAs with firms for
the contract areas in question.[8]  Id.; DEA Response, Apr. 7, 2005, at
1.  Lastly, while the agency maintains that it has not deliberately
excluded Envirosolve from competing for BPAs and/or purchase orders, DEA
acknowledges that *instant coordination and implementation of BPAs and
placement of purchase orders is not possible,* and the agency*s records
indicate that, at least for certain contract areas, DEA*s rotation of
purchase orders among BPA holders did not include Envirosolve.  DEA
Response, Apr. 7, 2005, at 2,
attach. 1, DEA Summary of Cleanup Orders, at 1-2.

   ANALYSIS

   As a preliminary matter, although it characterizes its current filing as a
request for reconsideration, Envirosolve does not argue that we should not
have dismissed its earlier protest because the agency*s proposed
corrective action did not, in fact, render the protest academic.  Compare
Saltwater Inc.--Recon. and Costs,  B-294121.3, B-294121.4, Feb.A 8, 2005,
2005 CPD PA 33.  Instead, Envirosolve argues that DEA has failed to take
the corrective action promised within the time period promised.  A
protest, like the one here, that was once academic is not revived by
subsequent agency action or inaction.  Rather, the subsequent agency
conduct gives rise to a new basis for protest even if some of the issues
raised by the subsequent action are the same as the issues raised under
the earlier protest.  See Lackland 21st Century Servs. Consol.--Protest
and Costs, B-285938.6, July 13, 2001, 2001 CPD P 124 at 4.

   We have recognized that the mere promise of corrective action, without
reasonably prompt implementation, has the obvious effect of circumventing
the goal of the bid protest system of effecting the economic and
expeditious resolution of bid protests. Louisiana Clearwater, Inc.-Recon.
and Costs, B-283081.4, B-283081.5, Apr. 14, 2000, 2000 CPD P 209 at 6;
Pemco Aeroplex, Inc.--Recon. and Costs, B-275587.5,
B-275587.6, Oct. 14, 1997, 97-2 CPD P 102 at 7-8.  When an agency proposes
corrective action, we consider it implicit that it will undertake a good
faith effort to implement the corrective action and to address all issues
raised by the protester that are meritorious.  Louisiana Clearwater,
Inc.-Recon. and Costs, supra.  Where an agency fails to implement the
promised corrective action, or implements corrective action that fails to
address a meritorious issue raised in the protest that prompted the
corrective action, such that the protester is put to the expense of
subsequently protesting the very same procurement deficiency, the agency*s
action has precluded the timely, economical resolution of the protest. 
See id.

   As explained in detail below, we conclude that Envirosolve*s October 12,
2004 protest of DEA*s failure to adhere to applicable competition
requirements with regard to the establishment of BPAs with selected
vendors, followed by the issuance of noncompetitive purchase orders under
the BPAs, was clearly meritorious.  Further, the record shows that DEA has
failed to remedy these deficiencies because it has not implemented the
corrective action it proposed in response to the earlier protest.

   Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified
acquisitions--used to purchase supplies and services, including
construction, research and development, and commercial items, the
aggregate amount of which does not exceed $100,000 (FAR SS 2.101, 13.000,
13.003(a))--are excepted from the general requirement that agencies obtain
full and open competition through the use of competitive procedures when
conducting procurements.  See 41 U.S.C. SSA 253(a)(1)(A), (g)(1), and
(g)(4) (2004).  Part 13 of the FAR establishes procedures for simplified
acquisitions, which are designed to promote efficiency and economy in
contracting, and to avoid unnecessary burdens for agencies and
contractors.  To facilitate these objectives, FASA requires only that
agencies obtain competition to the maximum extent practicable.  41 U.S.C.
S 427(c); FAR S 13.104; see Information Ventures, Inc., B-293541, Apr. 9,
2004, 2004 CPD P 81 at 3.  Consistent with the maximum-extent-practicable
standard, an agency *must not solicit quotations based on personal
preference.*  FAR S 13.104(a)(1).  Additionally, an agency may solicit
from one source only *if the contracting officer determines that the
circumstances of the contract action deem only one source is reasonably
available (e.g., urgency, exclusive licensing agreements, or industrial
mobilization).*  FAR SA 13.106-1(b)(1); see Information Ventures, Inc.,
supra.

   BPAs are one method of simplified acquisition.  FAR S 13.303; see Native
Res. Dev., Inc., B-246597.2, B-246597.3, July 13, 1992, 92-2 CPD P 15 at
10 n.11.  Agencies are not required to request proposals or to conduct a
competition before establishing BPAs.  Information Sys. Tech. Corp.,
B-280013.2, Aug. 6, 1998, 98-2 CPD PA 36 at 3.  After a BPA is
established, however, otherwise applicable competition requirements still
apply to all procurements under the BPA.  FAR SA 13.303-5(a) (BPA to be
used only for purchases that are otherwise authorized by law or
regulation); Information Sys. Tech. Corp., supra.  Moreover, the existence
of a BPA does not justify purchasing from only one source.  FAR S
13.303-5(c).  If, for a procurement in excess of $2,500 there is an
insufficient number of established BPAs to ensure maximum practicable
competition, the contracting officer must solicit quotations from other
sources.  FAR SA 13.303-5(d)(1).

   We find that DEA*s use of BPAs to fulfill its hazardous waste cleanup
requirements failed to comply with applicable competition requirements in
several regards.  First, the choice of vendors with whom DEA established
BPAs was noncompetitive and apparently based upon the personal preference
of local agency personnel.  DEA also viewed the establishment of BPAs as a
form of *down-select* that effectively determined which vendors the agency
would exclusively consider and utilize to meet its hazardous waste cleanup
requirements.  See OMNIPLEX World Servs. Corp., supra.  Lastly, DEA*s
subsequent decision to noncompetitively issue purchase orders to select
BPA holders was not consistent with the applicable standard--obtaining
competition to the maximum extent practicable.[9] 

   As explained above, DEA, in recognition of the deficiencies in its
procurement methods, decided to take corrective action in response to the
earlier protest.  Based on the description of the corrective action it
planned to take, it was reasonable to assume that DEA would remedy the
noncompetitive methods it was then employing to meet its requirements. 
The record indicates, however, that the agency in fact did little to
implement its proposed corrective action, until after Envirosolve filed
the current protest.  Specifically, DEA took more than 2 months--from
January 6 until March 10--merely to issue a solicitation for the
competitive award of BPAs for the requisite cleanup services for the
contract areas here, and has yet to make award.  As an interim measure,
DEA decided to rotate the issuance of noncompetitive purchase orders among
BPA holders, but established a BPA with Envirosolve for only 1A contract
area before Envirosolve*s protest here, with 11 additional contract areas
added only after the filing of this protest.  Additionally, while DEA
states that it plans to treat all competitors fairly by rotating the
issuance of noncompetitive purchase orders among them, such action also
does not comply with applicable competition requirements.  Moreover, while
the agency may not have deliberately excluded Envirosolve from the
noncompetitive purchase orders it has issued here, the record indicates
that neither did DEA*s rotation of purchase orders among BPA holders
always include Envirosolve.  We recognize DEA*s good faith effort to
rectify the deficiencies attendant to its earlier procurement actions
while still meeting the agency*s requirements for hazardous waste cleanup
services; nonetheless, DEA*s corrective action was not prompt or proper.

   In sum, as asserted in Envirosolve*s earlier protest, the record shows
that DEA failed to adhere to applicable competition requirements in its
procurements here.  In addition, DEA failed to promptly implement its
proposed corrective action, effectively requiring the protester to file a
second protest, and thereby defeating the goal of resolving protests
economically and expeditiously.  See Louisiana Clearwater, Inc.-Recon. and
Costs, supra.

   We recommend that DEA adhere to applicable competition requirements with
regard to the procurement of the hazardous waste cleanup services in
question.  If DEA continues to procure the services here using simplified
acquisition procedures, we recommend that the agency promote competition
to the maximum extent practicable, for example, by competitively
establishing BPAs with vendors for the various contract areas.  If the
agency reasonably determines that the issuance of purchase orders on a
sole-source basis is necessary for the hazardous waste cleanup services,
then the agency should document a properly reasoned and accurate
determination for the sole-source award(s).  We also recommend that the
protester be reimbursed the reasonable costs of filing and pursuing its
protest here, including attorneys* fees.  4 C.F.R. S 21.8(d)(1)(2005). 
Envirosolve shall file its claim for costs, detailing and certifying the
time expended and cost incurred, with the contracting agency within 60
days of receiving this decision.  4 C.F.R. SA 21.8(f)(1).

   The protest is sustained.

   Anthony H. Gamboa
General Counsel

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

   [1] For example, for calendar year 2003, the DEA El Paso Intelligence
Center*s National Clandestine Laboratory Seizure System reported 9,364
laboratory seizures nationwide, or approximately 26 seizures per day. 
Envirosolve Protest, Oct. 12, 2004, attach. 2.

   [2] DEA asserted that several reasons influenced its decision to cancel
the RFP, including the lack of competition for several contract areas, the
physical security requirements set forth in the solicitation, and the fact
that the agency would only be able to award four contracts out of the 18
contract areas solicited.  DEA Dismissal Request, Nov. 12, 2004, at 2. 
The agency has stated that it is reviewing the solicitation with the
intent to make revisions that address the agency*s security requirements
and other factors that will help increase competition.  Id.

   [3] A BPA is a simplified method of filling anticipated repetitive needs
for supplies or services by establishing *charge accounts* with qualified
sources of supply.  Federal Acquisition Regulation (FAR) S 13.303-1(a);
see OMNIPLEX World Servs. Corp.,
B-291105, Nov. 6, 2002, 2002 CPD PA 199 at 3; Boehringer Mannheim Corp.,
B-279238, May 21, 1998, 98-1 CPD P 141 at 3.  A BPA includes a description
of the service(s) to be provided, and methods for pricing, issuing, and
delivering future orders.  FAR SA 13.303-3.  BPAs, like basic ordering
agreements, are often used when the specific items and quantities to be
covered by a contract are not known at the time the agreement is
executed.  FAR SS 13.303-2, 16.703.  Agencies may establish BPAs with more
than one supplier for supplies or services of the same type, or a single
firm from which numerous individual purchases will likely be made in a
given period.  FAR S 13.303-2(c).  A BPA is not itself a contract and does
not obligate the agency to enter into future contracts with the
contractor(s).  FAR SSA 13.303-1(a), 16.703(a)(2); Boehringer Mannheim
Corp., supra; see also Humco, Inc., B-244633, Nov. 6, 1991,
91-2 CPD PA 431 at 3.  Rather, an actual contract is formed when the
agency issues a purchase order under the BPA, or the basic agreement is
incorporated into a new contract by reference.  FAR S 13.303-5; Modern
Sys. Tech. Corp. v. United States,
24 Cl. Ct. 360, 363 (1991).

   [4] Envirosolve also alleged that DEA*s use of BPAs to obtain the required
hazardous waste cleanup services failed to comply with applicable
publication requirements, that the agency had improperly contracted with
large businesses instead of setting work aside for small business
concerns, and that DEA had improperly issued *case-by-case* purchase
orders to other contractors without complying with applicable competition
and publication requirements.  Envirosolve Protest, Oct. 12, 2004,
at 4-15.

   [5] DEA also agreed to:  (1) discontinue issuing purchase orders under the
BPAs without adhering to applicable publication requirements; (2)
discontinue awarding case-by-case contracts without adhering to applicable
competition and publication requirements; and (3) set aside all purchase
orders exceeding $2,500 and not exceeding $100,000 for small businesses,
or to perform an adequate determination in accordance with FAR S
19.502-2.  DEA Notice of Corrective Action, Jan. 5, 2005, at 1.

   [6] Envirosolve did not object to DEA*s dismissal request here; at a
hearing conducted by our Office prior to DEA*s decision to take corrective
action, Envirosolve agreed that the agency*s proposed corrective action
rendered its October 12, 2004 protest academic.  Hearing Transcript at
53.  DEA subsequently agreed that Envirosolve was entitled to be
reimbursed the reasonable costs of filing and pursuing its October 12,
2004 protest, including attorneys* fees.  Letter from DEA to GAO, Feb. 14,
2005, at 1.

   [7] DEA*s records also indicate that the agency continued to issue
purchase orders to large business concerns for hazardous waste cleanup
services in amounts between $2,500 and $100,000 until March 30, when it
cancelled the BPAs it had in place with the large businesses in question. 
DEA Response, Apr. 7, 2005, at 2, attach. 1, DEA Summary of Cleanup
Orders, at 1-2.

   [8] DEA also reports that Envirosolve is now the only BPA holder for four
of the agency*s hazardous waste cleanup contracts areas.  DEA Response,
Apr. 7, 2005, at 1.

   [9] As mentioned above, even under the maximum-extent-practicable standard
applicable to simplified acquisitions, an agency *may solicit from one
source if the contracting officer determines that the circumstances of the
contract action deem only one source is reasonably available (e.g.,
urgency . . .),* FAR S 13.106-1(b)(1); we review protests of the
sole-source determinations made in these simplified acquisition
procurements for reasonableness.  Information Ventures, Inc., supra; see
Information Ventures, Inc., B-290785, Aug. 26, 2002, 2002 CPD P 152 at 3. 
DEA has not argued nor attempted to demonstrate that, under the
circumstances of the procurements here, only one source is reasonably
available.