American Analytical & Technical Services, Inc., B-292100, June 11, 2003

B-292100 Jun 11, 2003 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights AATS alleges that the agency's evaluation of bidders' prices was improper. The solicitation stated that the Small Business Administration (SBA) 8(a) program was not applicable to this procurement. /1/ Id. Was determined to have the ninth lowest evaluated price and did not receive an award. The only information provided was that AATS's "bid had a higher evaluated price than those eligible [bidders] who received an award.". Either allegations or evidence that the protester will prevail in its claim of improper agency action. AATS's protest adequately sets forth the protester's assertion that the agency's price evaluation was inconsistent with the terms of the solicitation. AATS's protest here does sufficiently allege that the agency took particular actions and that these actions were contrary to law or regulation. /4/ See Charleston Marine Containers. View Decision American Analytical & Technical Services, Inc., B-292100, June 11, 2003 DIGEST Attorneys DECISION American Analytical & Technical Services, Inc. (AATS) protests the failure of the Environmental Protection Agency (EPA) to award it a contract under invitation for bids (IFB) No. PR-HQ-02-10708, for multi-media, multi-concentration, organic analytical (sample analysis) services. AATS alleges that the agency's evaluation of bidders' prices was improper. We deny the protest. The IFB, issued on August 8, 2002, sought to procure laboratory testing services in support of EPA's investigatory and cleanup activities, primarily with regard to hazardous waste sites nationwide, under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. The solicitation contemplated the award of multiple indefinite-quantity contracts for a 1-year base period with two 6-month option periods. The IFB informed bidders that the agency planned to conduct both a full and open competition, and a small business set-aside competition of up to 25 percent of the contract awards. IFB, Sec. L.10. Relevant to this protest, the solicitation stated that the Small Business Administration (SBA) 8(a) program was not applicable to this procurement. /1/ Id. The IFB also contained the clause at FAR Sec. 52.219-23, Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns, which stated that the agency would, as part of the evaluation, add 10 percent to the prices of all bidders except those of qualified small disadvantaged business (SDB) concerns (or other bidders covered under the clause). /2/ IFB, Sec. I.9. The solicitation established that contract awards would be made to the responsible bidders submitting the lowest evaluated prices. /3/ Nineteen bidders, including AATS, a large business, and Mitkem Corporation, an SDB, submitted bids by the September 10 bid opening date. As part of its price evaluation, EPA added 10 percent price to the total extended prices of non-SDB bidders. On February 26, 2003, after completion of both the price evaluation and responsibility determinations, EPA made awards to eight bidders, including Mitkem and another SDB concern. AATS, by contrast, was determined to have the ninth lowest evaluated price and did not receive an award. Agency Report (AR), Tab 6, Source Selection Decision, at 7-8. On March 11, the agency notified AATS that it did not receive a contract award; the only information provided was that AATS's "bid had a higher evaluated price than those eligible [bidders] who received an award." AR, Tab 7, Contracting Officer's Letter to AATS, March 11, 2003. In response to an oral inquiry by AATS on March 11 regarding the agency's award decision, EPA informed AATS that it would not provide it a debriefing, and directed AATS to submit its specific questions in writing. On March 13, AATS requested, in writing, information regarding EPA's price evaluation, as well as the evaluation of bidders' past performance. On March 20, AATS learned that the agency had misplaced its written inquiry and would be unable to reply without additional time. That same day, AATS filed a timely protest with our Office, challenging the agency's evaluation of bidders' prices and the resulting decision not to award it a contract. As a preliminary matter, the EPA argues that AATS's protest fails to set forth a detailed statement of the legal and factual grounds of protest and, therefore, should be dismissed. The agency essentially argues that AATS's protest does little more than rely on the protester's inability to understand the nature of a sealed bidding procurement as well as the failure to be one of the procurement's low bidders as grounds for protest. We disagree. Our Bid Protest Regulations require that a protest include a detailed statement of the legal and factual grounds of a protest, 4 C.F.R. Sec. 21.1(c)(4) (2003), and that the grounds stated be legally sufficient. 4 C.F.R. Sec. 21.1(f).