Ocuto Blacktop & Paving Company, Inc., B-284165, March 1, 2000

B-284165 Mar 01, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights A protester's challenge to a solicitation is timely where the solicitation did not give sufficient notice to potential offerors that environmental remediation projects for military installations which were closed or realigned as part of the base realignment and closure process were included within the reach of the solicitation. For such work to businesses located in the vicinity of such installations is sustained where the record does not show that the agency gave reasonable consideration to the practicability of the statutory preference before awarding such contracts. BACKGROUND Set forth below is a brief explanation of the posture of this protest. We will review the procedural and substantive issues raised by Ocuto's protest. View Decision Matter of: Ocuto Blacktop & Paving Company, Inc. File: B-284165 Date: March 1, 2000 DIGEST Attorneys DECISION Ocuto Blacktop & Paving Company, Inc. protests the award of a contract to Cape Environmental Management Inc. by the Army Corps of Engineers for the capping of a landfill at the former Griffis Air Force Base (AFB) in Rome, New York. Ocutu complains that the Corps failed to consider awarding the work to businesses located in the vicinity of Griffis, in violation of section 2912 of the National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, which established a preference for contracting with local, small, and small disadvantaged businesses for work associated with closing or realigning military installations under a base closure law. This preference explicitly includes "contracts to carry out activities for the environmental restoration and mitigation" of such installations, as here. Pub. L. No. 103-160, Sec. 2912(a) (set forth at 10 U.S.C. Sec. 2687 note (1994)). We sustain the protest. BACKGROUND Set forth below is a brief explanation of the posture of this protest; the statutory preference for using local businesses to perform environmental remediation work at closing military installations; and the Corps's comprehensive approach to using regional task order contracts to perform such work regardless of whether it involves civilian sites, active military installations, or realigned former military installations. At the conclusion of this background, we will review the procedural and substantive issues raised by Ocuto's protest. On November 16, 1999, a representative of the Base Realignment and Closure (BRAC) Commission advised Ocuto of a pending award for a contract for capping a landfill at the former Griffis AFB to Cape Environmental, located in Waukegan, Illinois. The landfill capping contract was identified only as project no. JREZ-98-7002. On November 22, Ocuto filed a protest with our Office claiming that the award was made without regard to a statutory preference for the use of businesses located in the vicinity of the closed base. The statutory preference Ocuto claims should be applied here is codified at 10 U.S.C. Sec. 2687 note, and provides, in relevant part: (a) Preference required.--In entering into contracts with private entities as part of the closure or realignment of a military installation under a base closure law, the Secretary of Defense shall give preference, to the greatest extent practicable, to qualified businesses located in the vicinity of the installation and to small business concerns and small disadvantaged business concerns. Contracts for which this preference shall be given shall include contracts to carry out activities for the environmental restoration and mitigation at military installations to be closed or realigned. The regulations implementing this preference provide that before making a small business or small disadvantaged business set-aside determination for acquisitions in support of base closure or realignment, contracting officers shall determine "whether there is a reasonable expectation that offers will be received from responsible business concerns located in the vicinity of the military installation that is being closed or realigned." Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 226.7103(a). When offers can be expected from local businesses, the regulation prohibits the use of set-asides of any kind, unless an offer is expected from a local business within the set-aside category. /1/ Id. Sec. 226.7103(c). On December 1, the Corps asked that our Office dismiss Ocuto's protest, explaining that the alleged pending "contract" challenged by Ocuto is, in fact, the first intended task order under a not-yet-awarded indefinite-delivery/indefinite-quantity (ID/IQ) contract for environmental remediation throughout the geographic area of Environmental Protection Agency (EPA) Region II.