Browning-Ferris Industries of Hawaii, Inc.--Costs, B-

B-278051.2 Apr 27, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest is clearly meritorious when a reasonable agency inquiry into the protester's allegations would have revealed that estimates in the solicitation had no reasonable basis. Was issued on July 25. The contracting officer essentially concluded that BFI's proposal was technically equivalent to a third offeror's proposal. Which was lower priced. 5 days after the protest was filed. Sec. 21.2(a)(1) (1997) (protests based upon alleged improprieties in a solicitation which are apparent prior to the time set for receipt of initial proposals shall be filed prior to that time). It had no reason to suspect that the estimates for unscheduled/special events were inaccurate. Its ground for protest was not apparent from the face of the RFP and in fact did not arise until after it had been allowed to review TSI's price. View Decision Matter of: Browning-Ferris Industries of Hawaii, Inc.--Costs File: B-278051.2 Date: April 27, 1998 DIGEST Attorneys DECISION Browning-Ferris Industries of Hawaii, Inc. (BFI) requests that we recommend that it be reimbursed the costs of filing and pursuing its protest challenging the terms of request for proposals (RFP) No. F64605-97-R-0017, issued by the Department of the Air Force for waste disposal services at Hickam Air Force Base in Hawaii. We grant the request. The agency issued the solicitation on July 16, 1997, for a fixed-price contract for collection, transportation, and disposal of waste from industrial/medical (IND/MED) facilities and military family housing (MFH) at Hickam for a 1-year base period, with four 1-year option periods. The solicitation provided for a selection decision based on price and technical factors, with technical factors "significantly more important" than price. The RFP provided a schedule for pickups from the MFH areas and provided for the contractor to submit a frequency schedule for pickup of IND/MED refuse. RFP at 50-51. In addition, page 53 of the RFP contained an "Unscheduled and/or Special Events" provision, advising offerors of a requirement to make certain unscheduled collections, upon notification from the agency's quality assurance evaluator. Services would include relocation and return of containers to and from "special events areas," supply and removal of additional containers, and the collection and disposal of contents. Id. The solicitation did not provide a list of "special events"; it contained estimates of total work load, based on historical records, but no breakdown showing how much of the total the regular pickups generated, as opposed to the proportion generated during unscheduled or special events. See RFP at 54. The RFP contained two contract line item numbers (CLIN) for unscheduled/special event services, CLIN 0006, with seven sub-CLINs (0006AA-0006AG), for the IND/MED areas, and CLIN 0016, with three sub-CLINs (0016AA-0016AC), for the MFH areas. /1/ These CLINs contained estimated quantities for various sizes of containers. /2/ The solicitation required submission of offers by August 1. The agency issued two amendments to the solicitation; the first, responding to questions from potential offerors, was issued on July 25, on which date the agency also conducted a site visit. The record contains no evidence that any offeror questioned the requirement for "special events" or the estimates for CLINs 0006 and 0016, or objected to the August 1 date for submission of proposals prior to that date. On that date, five firms submitted offers under the RFP; the incumbent contractor, Technology Services International, Inc. (TSI), submitted the lowest price, with BFI's price second high. In her selection decision, the contracting officer essentially concluded that BFI's proposal was technically equivalent to a third offeror's proposal, which was lower priced; she concluded, however, that the third offeror's higher rating relative to TSI's rating did not present an advantage justifying the payment of a premium over TSI's low price. She therefore selected TSI for award, and BFI filed a protest with our Office. BFI first contended that the agency had selected the lowest-priced, acceptable offer, contrary to the terms of the RFP, which provided for a price/technical tradeoff. Protest at 1, 6-7. BFI also challenged the agency's evaluation of its proposal. Id. at 1-2, 7-8. In addition, BFI contended that TSI, as the incumbent, had special knowledge of the government's requirements, in particular those under CLINs 0006 and 0016, which TSI had offered to perform at "no cost." Id. at 2, 8-9. As part of its argument that TSI had an unfair competitive advantage, BFI also complained that the short, 16-day period between the issuance of the RFP and the date set for receipt of initial offers deprived offerors other than TSI of the opportunity to gather enough information to be competitive. Id.