TITLE: B-294974.6, Logan, LLC, December 1, 2006
BNUMBER: B-294974.6
DATE: December 1, 2006
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B-294974.6, Logan, LLC, December 1, 2006

   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: Logan, LLC

   File: B-294974.6

   Date: December 1, 2006

   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

   1. Statutory requirement to obtain maximum practicable competition in
   simplified acquisitions is met where agency uses competitive procedures in
   establishing blanket purchase agreements (BPA) with multiple vendors;
   under those circumstances, there is no requirement that the agency conduct
   a further competition among the BPA holders in connection with each
   individual purchase order subsequently issued under the BPAs.

   2. Challenge to agency's decisions made after competitive establishment of
   BPAs regarding whether and how to place orders with specific BPA holders
   concerns administration of the BPAs, an issue not for review in a bid
   protest before the Government Accountability Office.

   DECISION

   Logan, LLC (formerly known as Envirosolve, LLC) [1] protests the decision
   by the Drug Enforcement Administration (DEA), Department of Justice, to
   exclude it from the rotation of purchase orders under blanket purchase
   agreements (BPA) established with various vendors for hazardous waste
   cleanup services. Envirosolve argues that the agency's decision to exclude
   it from receiving further purchase orders under its BPA is improper.

   We deny 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. 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 clandestine drug laboratory. Protest
   (B-294974), 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 its needs and responsibilities, DEA has utilized the services of
   contractors who are properly qualified in hazardous waste management. DEA
   has also accomplished the administration of its hazardous waste cleanup
   requirements by dividing the country into 44 geographic areas, or
   "contract areas," and establishing contract vehicles for the required
   services for one or more contract areas. Agency Dismissal Request,
   Nov. 12, 2004, at 1.

   The history of the contractual relationship between DEA and Envirosolve is
   a long and difficult one (see Envirosolve LLC, B-294974.4, June 8, 2005,
   2005 CPD para. 106 for additional details). Relevant to the protest here,
   in October 2004, the agency was without the required hazardous cleanup
   services for 18 contract areas and, in order to meet its needs, decided to
   establish BPAs with various firms for the required services.[2] DEA then
   established, noncompetitively, BPAs with at least 10 different vendors,
   but not Envirosolve, for one or more contract areas each. The agency
   subsequently began issuing purchase orders, noncompetitively, under the
   BPAs it had established with the selected vendors. While some of the
   purchase orders 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 a BPA holder for the given contract
   area, and did not consider or solicit quotations from other sources.

   On October 12, 2004, Envirosolve filed a protest with our Office
   asserting, among other things, that DEA's use of noncompetitive BPAs as
   the method for procuring the required hazardous waste cleanup services
   violated applicable competition requirements. Envirosolve also protested
   that the agency had intentionally and improperly excluded it from
   competition.

   On January 5, 2005, DEA advised our Office of its decision to take
   corrective action in response to Envirosolve's protest. Specifically, the
   agency agreed to discontinue issuing purchase orders under the
   noncompetitively-established BPAs without adhering to applicable
   competition requirements.[3] DEA also agreed to formulate an acquisition
   strategy that would address the applicable competition requirements (e.g.,
   to competitively establish one or more BPAs for each contract area). Based
   on DEA's announced corrective action, this Office dismissed Envirosolve's
   protest.

   On March 11, 2005, DEA issued request for quotations (RFQ) No.
   DEA-05-R-0003 for hazardous waste cleanup services for 12 contract areas.
   The RFQ contemplated the competitive establishment of one or more BPAs
   with various vendors for each contract area for a period up to 5 years.
   The solicitation stated that BPAs would be established with those
   responsible vendors whose quotations were determined to be technically
   acceptable and whose prices were found to be fair and reasonable. AR, Tab
   1, RFQ No. DEA-05-R-0003, at 15. Additionally, the RFQ (and subsequent
   BPAs) informed vendors that the issuance of the actual purchase orders
   would be rotated among BPA holders for the particular contract area. Id.,
   amend. 3, Questions and Answers, at 4. Under this RFQ, DEA established a
   BPA with Envirosolve for nine contract areas. Protest, Aug. 24, 2006, at
   6-7.

   On November 4, DEA issued RFQ No. DEA-06-R-0002 for hazardous waste
   cleanup services for 24 contract areas. This RFQ contemplated the
   competitive establishment of one or more BPAs with various vendors for
   each contract area for a period up to 24 months.[4] As with the previous
   RFQ, this RFQ stated that BPAs would be established with those responsible
   vendors whose quotations were determined to be technically acceptable and
   whose prices were found to be fair and reasonable. AR, Tab 3, RFQ No.
   DEA-06-R-0002, at 6. The RFQ (and subsequent BPAs) here likewise informed
   vendors that the issuance of the actual purchase orders would be rotated
   among BPA holders for the particular contract area. Id., amend. 1,
   Questions and Answers, at 1. Under this RFQ, DEA established a second BPA
   with Envirosolve for six additional contract areas. Protest, Aug. 24,
   2006, at 5-7; Comments, Oct. 5, 2006, at 9.

   On or about July 17, 2006, DEA began excluding Envirosolve from the
   rotation of purchase orders for hazardous waste cleanup services among BPA
   holders. Envirosolve then filed the current protest challenging its
   exclusion. In its report to our Office in response to the protest, the
   agency explained that the DEA Hazardous Waste Disposal Section is
   presently conducting an investigation concerning the discovery of three
   drums containing clandestine drug laboratory waste at a location in Tulsa,
   Oklahoma. AR, Sept. 25, 2006, at 2. According to DEA, its initial
   investigation determined that the labeling on the drums indicated that the
   hazardous waste had been processed and transported by Envirosolve. Given
   Envirosolve's apparent loss of control of the three drums of hazardous
   waste, the contracting officer decided to temporarily discontinue issuing
   purchase orders to Envirosolve during the pendency of the investigation.

   DISCUSSION

   Envirosolve raises a number of issues regarding the agency's decision to
   temporarily discontinue issuing it purchase orders during the pendency of
   the DEA investigation into the possible mishandling of hazardous waste.
   The protester generally contends that the agency's decision to exclude it
   from the rotation of BPA purchase orders is not justified by the ongoing
   investigation, nor were the agency actions done in accordance with
   applicable procurement statutes and regulations. We have fully considered
   all of Envirosolve's grounds of protest and find no basis to sustain the
   protest.

   Envirosolve first argues that the DEA decision to cease issuing it
   purchase orders under the established BPAs violates applicable competition
   requirements. Specifically, the protester alleges that the agency decision
   to exclude it from the rotation of purchase orders violates the
   Competition in Contracting Act of 1984 (CICA). We disagree.

   The overarching goal of CICA is the promotion of competition in
   procurements by federal agencies and, in furtherance thereof, CICA
   generally requires contracting agencies to conduct procurements using full
   and open competition through the use of competitive procedures, except in
   the case where a different procurement procedure is expressly authorized
   by statute. 41 U.S.C. sect. 253(a)(1)(A) (2000). As relevant here, under
   the Federal Acquisition Streamlining Act of 1994 (FASA) simplified
   acquisitions--used to purchase supplies and services, the aggregate amount
   of which does not exceed the simplified acquisition threshold (in most
   instances, $100,000) (FAR sections 2.101, 13.000, 13.003(a))--are excepted
   from CICA's full and open competition requirement. 41 U.S.C. sect. 253(g).
   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 contracting agencies obtain
   competition to the "maximum extent practicable." [5] 41 U.S.C. sections
   253(g)(4), 427(c); FAR sect. 13.104; Information Ventures, Inc., B-293541,
   Apr. 9, 2004, 2004 CPD para. 81 at 3.

   In this case, DEA complied with the statutory requirement to obtain
   maximum practicable competition when it established the BPAs for these
   small purchases.[6] Under these circumstances, there is no requirement
   that DEA compete among the BPA holders each individual purchase order
   subsequently issued under the BPAs.

   Envirosolve also protests that DEA's decision to temporarily suspend
   issuing purchase orders under its BPAs violates the terms of the BPAs
   themselves, and constitutes a nonresponsibility determination that, for a
   small business concern such as itself, must be referred to the Small
   Business Administration. In our view, any decisions made by DEA after
   establishment of the BPAs regarding whether and how to place orders with
   specific BPA holders, and any challenge to the agency's actions, concern
   administration of the terms of the BPAs, an issue that is not for our
   review. See 4 C.F.R. sect. 21.5(a); East West Research, Inc.--Recon.,
   B-233623.2, Apr. 14, 1989, 89-1 CPD para. 379 at 2.

   Envirosolve next asserts that DEA's decision to discontinue issuing it
   purchase orders violates the terms of the promised corrective action, in
   which DEA agreed to competitively award BPAs, rotate orders among BPA
   holders, and not exclude Envirosolve from competing for DEA work. We
   disagree.

   As set forth above, in its January 5, 2005, notice of corrective action,
   DEA agreed to rotate orders fairly among holders of the
   noncompetitively-established BPAs (including Envirosolve) until it was
   able to achieve compliance with applicable competition requirements (e.g.,
   by competitively establishing one or more BPAs for each contract area). By
   means of RFQs subsequently issued by DEA on March 11, 2005 and November 4,
   2005, the agency competitively established BPAs with various vendors for a
   total of 36 contract areas. Moreover, DEA did not exclude Envirosolve from
   competing for the BPAs here. In fact, the agency established two BPAs with
   Envirosolve for a total of 15 contract areas. We think that these facts
   demonstrate that DEA has implemented its promised corrective action.

   Envirosolve essentially contends that DEA's promised corrective action
   extends in perpetuity, and precludes the agency from excluding Envirosolve
   from DEA work under any circumstances. We disagree. The corrective action
   that DEA agreed to in January 2005 could not anticipate all future events.
   Just as the corrective action did not guarantee that Envirosolve would
   receive a competitively-established BPA from the agency, so too it did not
   guarantee that Envirosolve would continue to receive orders under its BPAs
   even if, as the agency contends is the case here, circumstances arose that
   warrant further investigation into possible wrongdoing in connection with
   Envirosolve's performance of purchase orders issued to it.

   Finally, Envirosolve argues that DEA has improperly suspended and/or
   debarred it without due process. Specifically, Envirosolve argues that the
   agency suspended it on or about July 17, 2006 and has yet to provide
   Envirosolve with formal notice of the suspension decision or the
   opportunity to be heard on the subject.[7] The agency's actions, the
   protester alleges, also constituted a de facto debarment from competing
   for government contracts without due process.[8]

   Our Office no longer reviews protests that an agency improperly suspended
   or debarred a contractor from receiving government contracts. 4 C.F.R.
   sect. 21.5(i). We have instead determined that suspension and debarment
   matters (including, as Envirosolve claims here, procedural deficiencies)
   are properly for review by the contracting agency in accordance with the
   applicable provisions of the FAR. Id.; Triton Elec. Enters., Inc.,
   B-294221 et al., July 9, 2004, 2004 CPD para. 139 at 2; Shinwha Elecs.,
   B-290603 et al., Sept. 3, 2002, 2002 CPD para. 154 at 5.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Although Envirosolve, LLC changed its name to Logan LLC, Protest, Aug.
   24, 2006, at 2 n.1, DEA declined to accept a proposed novation agreement
   for reasons not relevant to the protest here. Agency Report (AR), Sept.
   25, 2006, at 1 n.1. As the parties both refer to the vendor by its former
   name, we will refer to the protester as Envirosolve for the balance of
   this decision.

   [2] 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) sect. 13.303-1(a);
   see Envirosolve LLC, supra, at 3 n.3. A BPA includes a description of the
   service(s) to be provided, and methods for pricing, issuing, and
   delivering future orders. FAR sect. 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 sections 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 vendor
   from which numerous individual purchases will likely be made in a given
   period. FAR sect. 13.303-2(c). A BPA is generally not itself a contract,
   and does not obligate the agency to enter into future contracts with the
   vendor. FAR sections 13.303-1(a), 16.703(a)(3); Faye Zhengxing v. United
   States, 71 Fed. Cl. 732, 738 (2006); Envirosolve LLC, supra. However,
   circumstances may transform a BPA into a binding obligation, that is, an
   enforceable contract. See Almar Indus. v. United States, 16 Cl. Ct. 243,
   245-47 (1989).

   [3] DEA agreed that, as an interim measure, the issuance of noncompetitive
   purchase orders would be done in accordance with the requirements of the
   FAR, would not exceed a 2-month period, and would be rotated fairly among
   BPA holders.

   [4] The RFQ also included a "minimum guaranteed amount" of work for each
   BPA holder for each contract area. AR, Tab 3, RFQ No. DEA-06-R-0002, at
   4-6.

   [5] In order to obtain competition to the maximum extent practicable,
   agencies must make reasonable efforts, consistent with efficiency and
   economy, to give responsible sources the opportunity to compete. Gateway
   Cable Co., B-223157 et al., Sept. 22, 1986, 86-2 CPD para. 333 at 5. In
   contrast, full and open competition is defined as meaning that all
   responsible sources are permitted to submit bids or proposals on the
   procurement. 41 U.S.C. sect. 403(6).

   [6] To the extent Envirosolve argues that DEA did not achieve competition
   to the maximum extent practicable by competing the establishment of the
   BPAs (and thus must compete issuance of the purchase orders under the
   BPAs), this argument is untimely. Our Bid Protest Regulations require that
   protests based upon alleged improprieties which do not exist in the
   initial solicitation, but which are subsequently incorporated into the
   solicitation, must be filed no later than the next closing time for
   receipt of proposals following the incorporation. Bid Protest Regulations,
   4 C.F.R. sect. 21.2(a)(1) (2006). Envirosolve was aware from at least
   March 29, 2005 (the date that Amendment 3 to RFQ No. DEA-05-R-0003 was
   issued) that DEA did not plan to compete the issuance of the actual
   purchase orders after competitively establishing BPAs with one or more
   sources of supply, yet did not protest this issue to our Office until
   August 24, 2006.

   [7] Suspensions are imposed for a temporary period before suspected
   misconduct is proven or disproven, and while an investigation and any
   ensuing legal proceedings are taking place. FAR sect. 9.407-4(a). An
   agency may, upon adequate evidence, suspend a contractor suspected of,
   among other things, commission of a criminal offense in connection with
   performing a public contract, or other misconduct indicating a lack of
   business integrity. FAR sect. 9.407-2(a).

   [8] Debarments are imposed where contractor misconduct has been
   established (in contrast to suspensions, which serve as protective
   measures). Where an agency proposes a contractor for debarment and, after
   proceedings where the contractor is afforded the opportunity to dispute
   material facts, the agency concludes that the cause of debarment has been
   established by a preponderance of the evidence, the agency may then debar
   the contractor for a period commensurate with the seriousness of the
   cause. FAR sections 9.406-3, 9.406-4. A de facto debarment occurs when an
   agency excludes a contractor from competing for government contracts
   without following applicable debarment regulations and procedures. See
   Quality Trust, Inc., B-289445, Feb. 14, 2002, 2002 CPD para. 41 at 4.