Resource Applications, Inc.

B-271079.6 Aug 12, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights An exception under which pre-award notice is not required. Although Small Business Administration (pursuant to a timely size protest) subsequently determined that awardee is other than small. The contract need not be terminated where there is no other offeror eligible for award and the agency continues to have an urgent need for the services. RAI's proposal was eliminated from the competitive range after initial proposals were evaluated based on a number of serious proposal deficiencies that led the agency to conclude that RAI's proposal could be made acceptable only if it was substantially rewritten. RAI protested to our Office that its proposal was improperly eliminated from the competitive range. View Decision Matter of: Resource Applications, Inc. File: B-271079.6 Date: August 12, 1996 Procuring agency properly proceeded with award under small business set- aside procurement without providing generally required pre-award notice to unsuccessful offerors where agency made reasonable urgency determination, an exception under which pre-award notice is not required; although Small Business Administration (pursuant to a timely size protest) subsequently determined that awardee is other than small, and this size determination applies to current procurement, the contract need not be terminated where there is no other offeror eligible for award and the agency continues to have an urgent need for the services. Attorneys DECISION Resource Applications, Inc. (RAI) protests the award of a contract to RAO Enterprises, Inc. d/b/a Integrated Laboratory Systems (RAO), under request for proposals (RFP) No. D500055R1, issued by the Environmental Protection Agency (EPA) for performance of Environmental Service Assistance Team (ESAT) support services for various EPA programs. We deny the protest. Two offerors, RAI and RAO, responded to the solicitation. RAI's proposal was eliminated from the competitive range after initial proposals were evaluated based on a number of serious proposal deficiencies that led the agency to conclude that RAI's proposal could be made acceptable only if it was substantially rewritten. On January 30, 1996, the EPA executed a written determination, pursuant to Federal Acquisition Regulation (FAR) Sec. 15.1002(b)(2), that urgency necessitated award to RAO without advance notice to RAI; EPA made award to RAO on January 31. After being notified of the award on February 1, RAI protested to our Office that its proposal was improperly eliminated from the competitive range. We denied the protest. Resource Applications, Inc., B-271079; B-271079.2, May 20, 1996, 96-1 CPD para. 244. RAI also submitted a timely size protest, arguing that as the result of a joint venture agreement with a large business, RAO did not qualify as a small business eligible for award. On March 4, based on RAO's failure to provide requested information, the Small Business Administration's (SBA) regional office ruled that RAO was not a small business for the procurement. EPA has declined to terminate RAO's contract. RAI challenges aspects of the agency's urgency determination, questions the award to RAO, and maintains that the contract should be terminated. A procuring agency may properly award a contract under a small business set-aside without providing pre-award notice, where it reasonably determines that the urgency of the requirement necessitates doing so. FAR Sec. 15.1002(b)(2). Here, the agency made a reasonable urgency determination and the award therefore was proper. EPA's written urgency determination stated that award had to be made before February 1, the date that the prior contract expired, due to the time sensitive nature of many of the tasks to be performed. [1] It stated that it is imperative that no break in service occur because of the following tasks: maintaining cultures for toxicity testing, which must be checked on a daily basis; sample analysis, including analysis of some samples with 14-day holding times, which, if exceeded, would require EPA to resample or disregard the data; and data review, used to assess the impact of certain conditions on human health, which must be completed in 2 days. EPA's report in response to RAI's protest further explains the perceived urgency. EPA reports that RAO has been directed to perform a number of urgently required tasks, including hazardous waste characteristic testing on cultured biological testing organisms, which cultures are used in on- going testing which is sequential in nature and must be performed continuously and on a daily basis. Any disruption would require the agency to return to the hazardous waste site to collect new samples, resulting in additional cost and delay to the government's hazardous waste clean up activities. The agency also issued a work order to support a project dealing with contaminated private drinking water wells.