Decision
Matter of: Advant-EDGE Solutions, Inc.
File: B-400367.2
Date: November 12, 2008
Donald
J. Holland for the protester.
Rebecca L. Tranthem, Esq., Department of Veterans Affairs, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1.
Where solicitation did not require offeror itself to possess specific
licenses and permits, agency properly evaluated licenses and permits issued in
name of awardee’s subcontractor.
2. Evaluation of
protester’s proposal was unobjectionable where, due to weakness associated with
“sharps” exchange program, agency reasonably evaluated proposal as satisfactory
and, although it experienced difficulty in contacting protester’s past
performance references, reasonably evaluated past performance as low risk.
Advant-EDGE
Solutions, Inc. (AES) of North East,
Maryland protests the award of a contract to NEIE Medical Waste Services, LLC
(NEIE) of Portsmouth, Virginia under request for proposals (RFP)
No. VA-248-07-RP-0094, issued by the Department of Veterans Affairs (VA)
for biomedical waste services. AES
challenges the agency’s evaluation of the proposals.
We deny the protest.
The RFP, set aside for small disadvantaged veteran-owned
small businesses (SDVOSB), sought proposals for all labor, equipment,
containers, transportation and supervision required to pick-up, transport,
incinerate and/or acceptably dispose of biomedical infectious waste,
pharmaceutical and veterinary waste, chemotherapy waste,
biological/pathological waste, contaminated waste, and VA “sharps” containers,
from three VA medical facilities in Florida.[1] Proposals were to include per-pound pricing
based on estimated quantities of waste at each of the medical facilities. The RFP contemplated the award of a
fixed-price requirements contract for a base period, with 4 option years.
Proposals were to be evaluated for “best value” on the
basis of three factors--technical capability, past performance, and price. The two non-price factors were equally
important and, combined, were equal in importance to price. With regard to past performance, the RFP
required submission of at least three references for the offerors’ most recent
and relevant contracts performed for biomedical waste service.
Eight offerors, including AES
and NEIE, submitted proposals, which were evaluated by a technical evaluation
panel (TEP). The other six proposals
were eliminated based on lack of SDVOSB status, unreasonably high prices, or
unsatisfactory technical ratings. The
TEP reached the following consensus technical ratings for AES’s
and NEIE’s proposals:
|
AES
|
NEIE
|
Technical
|
Satisfactory
|
Excellent
|
Past Performance
|
Low Risk
|
Very Low Risk
|
Price
|
$1,584,835
|
$1,866,523
|
In reviewing the evaluation record, the contracting
officer, as source selection authority (SSA), noted that NEIE’s proposal had
multiple strengths and exceeded the minimum requirements. With regard to AES,
he noted a weakness in its proposal-- the sharps container exchange program--that
was not easily correctable. As to past
performance, he noted two excellent references for NEIE and the TEP’s
difficulty in establishing contact with AES’s
references. While NEIE’s price was 20%
higher than AES’s, the SSA determined that
NEIE’s proposal’s technical advantages justified the price premium, and that
NEIE’s proposal therefore represented the best value. Accordingly, VA made award to NEIE. After an unsuccessful agency-level protest, AES
filed this protest with our Office.
NEIE EVALUATION
Licenses and permits
The RFP’s performance work statement (PWS) required the
successful contractor to pick-up, transport, and treat and/or dispose of
medical waste in accordance with all applicable county, Florida state, and
federal (Environmental Protection Agency and Department of Transportation)
laws, policies and guidelines, as well as VA infectious medical waste
requirements. PWS sect. D.1.2. The contractor was also required to “maintain
all necessary medical waste permits and licenses for the disposal and treatment
of such waste.” Id.
AES asserts that NEIE
is not technically capable of performing the contract because it does not meet
the RFP’s license requirements.
Specifically, it maintains that NEIE is not a Florida
corporation and lacks a Florida Department of Health permit to provide
biomedical waste transportation and disposal services. In AES’s
view, NEIE cannot “maintain” the necessary licenses and permits because it must
rely on its subcontractor, Healthcare Waste Solutions of Florida, LLC (HWS),
to handle the waste.
This argument is without merit. The RFP did not require any specific license
or permit as a precondition to receiving award but, rather, only required that
the contractor maintain all necessary permits and licenses and that it perform
the work in accordance with applicable laws.
Whether an offeror, prospectively, was capable of meeting this
performance requirement was a matter of the firm’s responsibility. See SourceLink Ohio,
LLC, B-299258, Mar. 12, 2007,
2007 CPD para. 50 at 4. The RFP
provided for offerors to submit copies of their permits and licenses with their
proposals, presumably for purposes of enabling the agency to determine
offerors’ responsibility in this area. NEIE
responded to the requirement by submitting copies of HWS’s
Florida biomedical waste licenses
and permits. There was nothing improper
or unreasonable in the agency’s accepting and considering this information,
since there is nothing improper in an offeror’s meeting licensing requirements
through a subcontractor.[2] See The Ensign-Bickford Co.,
B-274904.4, Feb. 12, 1997, 97‑1
CPD para. 69 at 4 (agency’s allowing offeror to rely on licensed subcontractor
and its plan for waste management tasks was reasonable). We conclude that the agency reasonably relied
on HWS’s information in finding that NEIE
was a responsible offeror.
Experience
AES
asserts that NEIE began business in August 2007, just 2 months before the closing
date. In the protester’s view, NEIE
lacks relevant experience and it was unreasonable for the agency to rely on the
experience of NEIE’s “sister” company, NEIE, Inc. Protest at 2.
AES’s assertions are
without merit. The RFP required offerors
to provide a description of their applicable experience in the area of
biomedical waste services, but did not specify any amount of experience or
restrict the source of the experience.
RFP para. 5.1.2. An agency properly
may consider the experience of a predecessor firm or of the corporation’s
principal officers that was obtained prior to its incorporation date. Trailboss Enters., Inc., B‑297742,
Mar. 20, 2006, 2006 CPD
para. 64 at 4; R.J. Crowley, Inc., B-229559, Mar. 2, 1988, 88-1 CPD para. 220 at 6. NEIE Medical Waste Services, LLC was formed
when its predecessor (“sister”) company, NEIE, Inc., divided its business lines
and transferred all of its medical waste contracts to the new company. AR at 4.
As relevant to the RFP here, the newly formed company shares the same
contract management staff, processes, experience, and support as its
predecessor. Id. In evaluating NEIE’s technical capability
(including experience) as excellent, the agency reviewed information about
NEIE, Inc., including its successful performance of three current, similarly
scoped VA contracts for removal and disposal of medical waste. NEIE Proposal at 5; AR, Tab 13. Since the agency could properly consider the
experience of NEIE’s predecessor, there was nothing unreasonable in the
agency’s evaluation.
SDVOSB Requirements
In its comments on the agency report, AES
argues that NEIE fails to meet the RFP’s requirement that at least 50% of the
cost of personnel for contract performance be spent for employees of an SDVOSB
concern. RFP sect. 5.6(c). While AES
raised this issue in its agency-level protest, and the agency denied the issue,
AES’s initial protest to our Office did not
specifically challenge the agency’s decision or otherwise raise this issue. Where a protest first has been filed with a
contracting activity, any subsequent protest to our Office, to be considered
timely, must be filed within 10 calendar days of “actual or constructive
knowledge of initial adverse agency action.”
4 C.F.R. sect. 21.2(a)(3) (2008).
VA’s denial of AES’s protest on this
ground constituted initial adverse agency action. Since AES
raised this issue with our Office for the first time in its comments--well more
than 10 days after the agency denied its protest--it is untimely and will not
be considered.[3]
AES
EVALUATION
Sharps Exchange System
AES
maintains that the agency’s evaluation of its technical proposal was flawed and
thus does not support the agency’s award to NEIE at a higher price. Specifically, AES
asserts that the agency improperly found that it had proposed a sharps exchange
system, and downgraded its proposal on this basis. AES claims
that, in fact, “nowhere in its submission” did it propose such a system; the
“only” reference was in its company overview as one of six services offered by
the firm. Comments at 3. AES notes
in particular that its proposal did not mention a sharps exchange program with
reference to RFP paragraph D.4, which addressed disposal and sanitation
requirements. Id.
In reviewing an agency’s technical evaluation, we
will not reevaluate
proposals, but will examine the record to ensure that it was reasonable and in
accordance with the stated evaluation criteria and applicable procurement statutes and regulations. Harris
Corp., B-299864 et al., Sept. 14, 2007, 2007 CPD para. 180
at 5.
The evaluation here was reasonable. The RFP provided for the collection of
various types of biomedical waste at each facility’s pick-up area using
contractor-furnished containers. RFP
paras. D.1.1, D.4. VA personnel were
responsible for distributing these containers throughout the facilities and for
returning them to the waste pick-up area.
RFP para. D.5.1. Contractors
were not responsible for providing sharps containers, which were to be
purchased and stocked by VA. RFP
para. D.1.1. However, AES’s
proposal cover letter described, among other procedures that would or could be
provided, an expansion of VA’s medical waste program through a “reusable sharps
program” that entailed AES’s entry into the
facility to swap full sharps containers with clean containers, and provided the
benefits of lowered expenses and elimination of needle-stick exposure to
staff. AR, Tab 23. As part of its experience description, AES’s
proposal noted the firm’s specialization in providing comprehensive waste
management, including “sharps exchange services,” again described the services,
and identified AES’s partner firm that would
perform the services. Id. In evaluating AES’s
proposal, the TEP noted that the proposed program would not work at facilities
as complex as VA’s installations. AR,
Tab 18. In this regard, the infection
control section at one of the medical facilities covered by the contract had
reviewed the program and did not recommend using it, apparently due to access
issues. Id.;
AR at 5. In the TEP’s view, this
proposal weakness could not be corrected easily. AR, Tab 13.
Contrary to AES’s
assertions, its proposal clearly described a proposed sharps exchange system or
program. While AES
did not repeat information about its sharps system in its proposal section
concerning disposal and sanitation requirements (para. D.4), its absence there
was not inconsistent with its proposal elsewhere. In this regard, its cover letter identified
these and other services as “key differences” from other proposals and its
later description of the services did not clearly identify the services as
optional. AR, Tab 23. Since the RFP provided for the VA to furnish
sharps containers and for its personnel to convey waste to the waste pick-up
point, AES’s proposal
to enter and replace sharps containers throughout the facility was reasonably
considered part of its proposal and evaluated as a weakness when compared with
the VA’s stated requirements.
Past Performance
AES asserts that the
evaluation of its past performance was flawed because the agency did not make a
sufficient attempt to contact one of its references--a firm performing a
contract at the VA Medical Center (VAMC) in Washington,
D.C.
The evaluation was reasonable. The RFP requested at least three past
performance references for offerors’ most recent and relevant contracts for
biomedical waste services. RFP
para. 5.1.5. AES’s
proposal listed four references, with telephone numbers and brief descriptions
of its work, including contracts for medical waste packaging services, supply
of medical waste containers, removal and destruction of regulated medical waste
and recycling of other waste, and destruction of U.S.
currency waste. Proposal para. 5. It also identified three contracts with other
VAMCs, but provided no contact information.
Id.
The agency states that it had difficulty contacting any of AES’s
references, including the Washington, D.C.
VAMC reference. The agency was able to
correctly deduce the contractor’s name, but it found that the person listed as
a reference “did not exist at the contact number provided.” AR at 5.
While AES
states that the number provided was, and remains, the reference’s cell phone
number, an agency is only required to use reasonable efforts to contact an offeror’s past performance
references; it is not required to make multiple attempts to contact
such references. See OSI
Collection Servs., Inc.; C.B. Accounts, Inc., B‑286597.3 et al.,
June 12, 2001, 2001 CPD
para. 103 at 9. AES
has not shown that the agency’s efforts to contact the Washington,
D.C. reference were unreasonable. Rather, it appears that it was AES’s
providing a single cell phone number, and no other contact information (e.g.,
a phone number for the headquarters of the contractor) that led to the agency’s
unsuccessful efforts. We conclude that
there was no impropriety on the part of the agency, and therefore find no basis
for questioning the past performance evaluation.[4]
Since we find no error in the agency’s evaluation of the
proposals, and price and technical factors were weighted equally, there is no
basis to question the SSA’s determination that the technical advantages of NEIE’s
proposal justified its price premium.
The protest is denied.
Gary L. Kepplinger
General Counsel