American Technical & Analytical Services, Inc., B-282277.5, May 31, 2000

B-282277.5 May 31, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Bid that was previously rejected because the bidder was determined nonresponsible under an invitation for bids contemplating multiple awards may be revived. Because responsibility is to be determined based on any information received by the agency up to the time award is proposed to be made. Was to procure laboratory services from multiple contractors under fixed-price. The laboratory services were for analyzing samples from hazardous waste sites to determine the presence and concentration of certain organic analytes in aqueous and nonaqueous samples. The qualification requirements consisted of a two-part test that bidders were to take after bid opening in order to be considered responsive. View Decision Matter of: American Technical & Analytical Services, Inc. File: B-282277.5 Date: May 31, 2000 DIGEST Attorneys DECISION American Technical & Analytical Services, Inc. protests the award of a contract to Laucks Testing Laboratories, Inc. under invitation for bids (IFB) No. PR-HQ-98-00031, issued by the United States Environmental Protection Agency (EPA), for laboratory services. American contends that the EPA improperly allowed Laucks to revive its expired bid. We deny the protest. The IFB, issued July 22, 1998, was to procure laboratory services from multiple contractors under fixed-price, indefinite-quantity contracts for a 1-year base period with 2 option years. The laboratory services were for analyzing samples from hazardous waste sites to determine the presence and concentration of certain organic analytes in aqueous and nonaqueous samples. IFB Sec. B.1. Among other things, the IFB required the analysis data to be furnished to the EPA on a computer disk, defined as an electronic data deliverable (EDD). IFB Sec. C.2, exh. H. The IFB provided for award of up to 26 contracts to those bidders with the lowest prices who passed the qualification requirements set forth in the IFB. IFB Sec. M.3. The qualification requirements consisted of a two-part test that bidders were to take after bid opening in order to be considered responsive. IFB amend. 3, Sec. L.3, attachs. 14, 16. The IFB was amended to state that 19 contract awards were "anticipate[d]" with no more than 3 contracts going to one bidder, and with 9 contracts to be based on a 100-sample monthly capacity and 10 contracts to be based on a 300-sample monthly capacity. IFB amend. 3, at 2, and amend. 5, at 3. EPA received 23 bids at bid opening on December 12. Fourteen bids, including American's, were eliminated from consideration on February 23, 1999. EPA rejected American's bid because it did not meet the qualification requirements. After an unsuccessful agency-level protest, American protested the agency's action to our Office on May 6. Contracting Officer's Statement at 1-2. We sustained American's protest because the EPA treated American unequally by providing it an incorrect version of the qualification test while providing other bidders the correct version. We also found the qualification test could not properly be used to reject bids in a procurement conducted under sealed bid procedures. We therefore recommended that the EPA decide whether the test was necessary and either cancel and resolicit the requirement under competitive procedures if the test was necessary, or, if the test was not necessary, determine whether American and the other rejected bidders were responsible and if so include them in the award consideration. American Analytical and Technical Servs., Inc., B-282277.3, Aug. 16, 1999, 99-2 CPD Para. 38 at 6-7. Pursuant to our recommendation, the EPA determined that the qualification test was not needed and began considering making awards to American and the other rejected bidders, including Laucks. Contracting Officer's Statement at 2. On August 26, the EPA requested Laucks to revive its bid for an additional period of 60 days in order to be considered for an award. Laucks reinstated its bid on August 27. In early September, when the EPA was preparing to consider Laucks' responsibility, Laucks informed the agency by letter dated September 13 that Laucks probably would fail a pre-award survey because it could not meet the EDD requirement. See Contracting Officer's Statement at 2-3; Protest exh. 9. Thus, the EPA determined Laucks was not responsible and rejected that firm's bid. Protest exh. 10. On September 24, the EPA proceeded with awarding the contracts to bidders with higher bids than Laucks until the anticipated 19 contract awards were made. Protest at 10; Contracting Officer's Statement at 3. Following these contract awards, the EPA determined that it needed more contracts to meet its needs, but it believed no more contracts could be placed under the IFB in light of the language in amendments Nos. 3 and 5 indicating that only 19 contract awards were anticipated.