HAP Construction, Inc., B-280044.2, September 21, 1998

B-280044.2 Sep 21, 1998 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested the Army Corps of Engineers' solicitation for disposal of debris generated by storms, contending that the solicitation failed to conform to the requirements of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which calls for a preference for local businesses in awarding certain disaster relief contracts, to the extent feasible and practicable. GAO held that the: (1) solicitation properly provided evaluation credit to local firms; and (2) Corps' process for determining how to provide an appropriate preference was consistent with the statute and implementing regulations and was not otherwise objectionable. Accordingly, the protest was denied. View Decision Matter of: HAP Construction, Inc. File: B-280044.2 Date: September 21, 1998 DIGEST Attorneys DECISION HAP Construction, Inc. protests the terms of request for proposals (RFP) No. DACW17-98-R-0008, issued by the Department of the Army, Corps of Engineers, for removing, reducing the volume of, and disposing of debris generated by storms or other natural disasters in the U.S. Virgin Islands (USVI) and Puerto Rico. HAP contends that the RFP fails to conform to the requirements of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. Sec. 5150 (1994) (Stafford Act), which calls for a preference for local businesses in awarding certain disaster relief contracts, to the extent feasible and practicable. We deny the protest. The RFP, issued on March 31, 1998, contemplated the award of two indefinite-delivery, indefinite-quantity contracts for debris removal and related services, one of which will cover services in Puerto Rico, the other of which will cover the USVI. Award is to be made on the basis of a best value assessment of technical factors and price which are to be considered equal in weight. RFP Sec. M.2. The technical factors, listed in descending order of importance are: (1) Management Plan (2) Past Performance (3) Extent of subcontracting with small and small disadvantaged businesses (4) Location of the offeror's primary place of business RFP Sec. M.3B. Section M.3B(3)(b) of the RFP specifically states that the contracts will be subject to the Stafford Act, which provides that: In the expenditure of Federal funds for debris clearance, distribution of supplies, reconstruction, and other major disaster or emergency assistance activities which may be carried out by contract or agreement with private organizations, firms, or individuals, preference shall be given, to the extent feasible and practicable, to those organizations, firms, and individuals residing or doing business primarily in the area affected by such major disaster or emergency. This section shall not be considered to restrict the use of Department of Defense resources in the provision of major disaster assistance under this chapter. 42 U.S.C. Sec. 5150. Under factor 3, offerors are required to submit a subcontracting plan which "must include provisions for awarding subcontracts to firms that primarily do business in the disaster area," RFP Sec. M.3B(3)(b), and the RFP further provides that the plans would be evaluated, inter alia, to determine the "extent of subcontracting with firms primarily doing business in the disaster area." RFP Sec. M.3D(3). Under factor 4, offerors are required to provide the "street address of [their] primary place of business," RFP Sec. M.3B(4), and the RFP further provides that those offerors "whose primary place of business is outside the serviced area (either Puerto Rico or the Virgin Islands) should provide a synopsis of the total amount of business they have done in the serviced area in the last 3 years." Id. Additionally, the RFP provides: The offeror will be awarded the maximum points if its primary place of business is located in the area where services will be provided; i.e., for services to be performed in Puerto Rico, maximum points will be awarded to Puerto Rican firms; and for services to be performed in the Virgin Islands, maximum points will be awarded to Virgin Islands firms. Offerors whose primary place of business is outside the serviced area will be awarded points based on the amount of business they have done in the serviced area in the last 3 years. RFP Sec. M.3D(4). Proposals were received on June 12 and are being held, unopened, pending our resolution of the protest in which HAP basically asserts that the "preference" accorded local firms by the RFP falls short of what the Stafford Act, as implemented by Federal Acquisition Regulation (FAR) Sec. 6.302-5, requires. FAR Sec. 6.302-5 states in pertinent part: Full and open competition need not be provided for when . . . [a] statute authorizes or requires that the acquisition be made through another agency or from a specified source. . . . .