Environmental Restoration, LLC

B-413781 Dec 30, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Environmental Restoration, LLC (ER), a small business located in St. Louis, Missouri, protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SOL-R7-16-00007, which was issued by the Environmental Protection Agency (EPA), for remediation of mine waste in Cherokee County, Kansas. The protester argues that the agency improperly established the competitive range based solely on price. We deny the protest. We deny the protest. View Decision Decision Matter of:  Environmental Restoration, LLC File:  B-413781 Date:  December 30, 2016 Russ Gulledge, Environmental Restoration, LLC, for the protester. Kathleen Clever, Esq., Environmental Protection Agency, for the agency. Heather Weiner, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST In a lowest-priced, technically acceptable procurement, exclusion of protester’s proposal from competitive range was not improper where the agency reasonably concluded that the proposal had no reasonable prospect of award, and the protester suffered no prejudice. DECISION Environmental Restoration, LLC (ER), a small business located in St. Louis, Missouri, protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SOL-R7-16-00007, which was issued by the Environmental Protection Agency (EPA), for remediation of mine waste in Cherokee County, Kansas.  The protester argues that the agency improperly established the competitive range based solely on price. We deny the protest. BACKGROUND The RFP was issued on June 27, 2016, as a small business set-aside, and seeks the provision of personnel, materials and equipment for the excavation, consolidation, and disposition of mine waste and associated materials.[1]  RFP, PWS at 1.  The solicitation anticipates the award of a fixed-price contract for a base year, with two 12-month options.  RFP at 2.  The RFP provides that award will be made using a lowest-priced, technically acceptable source selection process, considering the following two non-price factors, to be evaluated on a pass/fail basis:  technical capability, and past performance.  RFP § M-2(b)(iv).  With regard to price, the solicitation provides that it will be evaluated by the agency based on the offeror’s proposed prices for the base year and all options.  RFP § M-2(b)(vii).  EPA received proposals from ten offerors, including ER.[2]  COS at 1.  The agency ranked the proposals from lowest-priced to highest-priced, and then conducted a price evaluation to assess the reasonableness of the prices submitted.  Id.  Specifically, the agency compared the prices to the market average,[3] as well as the independent government estimate; AR,[4] Tab 3, Price Evaluation, at 1.  The agency evaluated the two lowest-priced proposals for technical acceptability and concluded that both had a strong likelihood of being technically acceptable.  COS at 1-2; AR at 4; AR, Tab 9, Competitive Range Det., at 2.  Thereafter, the contracting officer decided to establish a competitive range in accordance with Federal Acquisition Regulation (FAR) § 15.306(c), and enter into discussions with the offerors that fell within that range.  COS at 1-3.  In establishing the competitive range, the contracting officer reviewed the price proposals of all ten offerors.  COS at 2; AR, Tab 9, Competitive Range Det., at 1.  The contracting officer found that while the two lowest-priced offers were priced “very close to each other,” the third lowest-priced offer “was substantially higher.”  AR at 2; AR, Tab 9, Competitive Range Det., at 1-2.  The contracting officer explains that, “[b]ecause the two lowest offerors were so close in price and the difference between those offers and the third lowest” was substantial, and “because one or both of the two lowest-priced offerors” was likely to be found acceptable after discussions, she concluded that the higher-priced offerors, including ER, “did not have a reasonable chance of receiving the award.”  COS at 2; AR at 4.  Accordingly, the contracting officer decided to establish a competitive range consisting of the two lowest-priced offerors.  Id.; AR, Tab 9, Competitive Range Det., at 1-2. On September 15, the contracting officer entered into discussions with the two lowest-priced offerors.  COS at 3.  On September 16, the agency notified all other offerors, including ER, that they had been excluded from the competitive range.  COS at 3; AR, Tab 10, Notice of Exclusion from Competitive Range, at 1.  Thereafter, ER requested a pre‑award debriefing.  This protest followed. DISCUSSION ER challenges the exclusion of its proposal from the competitive range, arguing that the EPA failed to evaluate its proposal against all of the solicitation’s evaluation factors.  Specifically the protester co...