Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Advant-EDGE Solutions, Inc. 

File: B-400367.2 

Date: November 12, 2008 

Donald J. Holland for the protester. 

Rebecca L. Tranthem, Esq., Department of Veterans Affairs, for the agency. 

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

1. Where solicitation did not require offeror itself to possess specific licenses and 

permits, agency properly evaluated licenses and permits issued in name of awardee’s 

subcontractor. 

2. Evaluation of protester’s proposal was unobjectionable where, due to weakness 

associated with “sharps” exchange program, agency reasonably evaluated proposal 

as satisfactory and, although it experienced difficulty in contacting protester’s past 

performance references, reasonably evaluated past performance as low risk. 

DECISION 

Advant-EDGE Solutions, Inc. (AES) of North East, Maryland protests the award of a 

contract to NEIE Medical Waste Services, LLC (NEIE) of Portsmouth, Virginia under 

request for proposals (RFP) No. VA-248-07-RP-0094, issued by the Department of 

Veterans Affairs (VA) for biomedical waste services. AES challenges the agency’s 

evaluation of the proposals. 

We deny the protest. 

The RFP, set aside for small disadvantaged veteran-owned small businesses 

(SDVOSB), sought proposals for all labor, equipment, containers, transportation and 

supervision required to pick-up, transport, incinerate and/or acceptably dispose of 

biomedical infectious waste, pharmaceutical and veterinary waste, chemotherapy 

waste, biological/pathological waste, contaminated waste, and VA “sharps” 
containers, from three VA medical facilities in Florida.1

 Proposals were to include 

per-pound pricing based on estimated quantities of waste at each of the medical 

facilities. The RFP contemplated the award of a fixed-price requirements contract 

for a base period, with 4 option years. 

Proposals were to be evaluated for “best value” on the basis of three factors--

technical capability, past performance, and price. The two non-price factors were 

equally important and, combined, were equal in importance to price. With regard to 

past performance, the RFP required submission of at least three references for the 

offerors’ most recent and relevant contracts performed for biomedical waste service. 

Eight offerors, including AES and NEIE, submitted proposals, which were evaluated 

by a technical evaluation panel (TEP). The other six proposals were eliminated 

based on lack of SDVOSB status, unreasonably high prices, or unsatisfactory 

technical ratings. The TEP reached the following consensus technical ratings for 

AES’s and NEIE’s proposals: 

AES NEIE

Technical Satisfactory Excellent

Past Performance Low Risk Very Low Risk

Price $1,584,835 $1,866,523

In reviewing the evaluation record, the contracting officer, as source selection 

authority (SSA), noted that NEIE’s proposal had multiple strengths and exceeded the 

minimum requirements. With regard to AES, he noted a weakness in its proposal-- 

the sharps container exchange program--that was not easily correctable. As to past 

performance, he noted two excellent references for NEIE and the TEP’s difficulty in 

establishing contact with AES’s references. While NEIE’s price was 20% higher than

AES’s, the SSA determined that NEIE’s proposal’s technical advantages justified the 

price premium, and that NEIE’s proposal therefore represented the best value. 

Accordingly, VA made award to NEIE. After an unsuccessful agency-level protest, 

AES filed this protest with our Office. 

NEIE EVALUATION 

Licenses and permits

The RFP’s performance work statement (PWS) required the successful contractor to 

pick-up, transport, and treat and/or dispose of medical waste in accordance with all 

applicable county, Florida state, and federal (Environmental Protection Agency and 

Department of Transportation) laws, policies and guidelines, as well as VA infectious

 1

 The term “sharps” refers to items, such as needles, that must be disposed of in a 

safe, secure manner. Agency Report (AR) at 5. 

Page 2 B-400367.2 
medical waste requirements. PWS § D.1.2. The contractor was also required to 

“maintain all necessary medical waste permits and licenses for the disposal and 

treatment of such waste.” Id. 

AES asserts that NEIE is not technically capable of performing the contract because 

it does not meet the RFP’s license requirements. Specifically, it maintains that NEIE 

is not a Florida corporation and lacks a Florida Department of Health permit to

provide biomedical waste transportation and disposal services. In AES’s view, NEIE

cannot “maintain” the necessary licenses and permits because it must rely on its

subcontractor, Healthcare Waste Solutions of Florida, LLC (HWS), to handle the 

waste. 

This argument is without merit. The RFP did not require any specific license or 

permit as a precondition to receiving award but, rather, only required that the 

contractor maintain all necessary permits and licenses and that it perform the work 

in accordance with applicable laws. Whether an offeror, prospectively, was capable 

of meeting this performance requirement was a matter of the firm’s responsibility. 

See SourceLink Ohio, LLC, B-299258, Mar. 12, 2007, 2007 CPD ¶ 50 at 4. The RFP 

provided for offerors to submit copies of their permits and licenses with their 

proposals, presumably for purposes of enabling the agency to determine offerors’ 

responsibility in this area. NEIE responded to the requirement by submitting copies

of HWS’s Florida biomedical waste licenses and permits. There was nothing 

improper or unreasonable in the agency’s accepting and considering this 

information, since there is nothing improper in an offeror’s meeting licensing 

requirements through a subcontractor.2

 See The Ensign-Bickford Co., B-274904.4, 

Feb. 12, 1997, 97-1 CPD ¶ 69 at 4 (agency’s allowing offeror to rely on licensed 

subcontractor and its plan for waste management tasks was reasonable). We 

conclude that the agency reasonably relied on HWS’s information in finding that 

NEIE was a responsible offeror. 

Experience 

AES asserts that NEIE began business in August 2007, just 2 months before the 

closing date. In the protester’s view, NEIE lacks relevant experience and it was 

 2

 We reach the same conclusion with regard to AES’s assertion that NEIE--a 

non-Florida-licensed contractor--violated a Florida regulation prohibiting a generator 

of biomedical waste from negotiating for waste transport with a person who is not

registered with the Florida Department of Health (FDOH). FLA. ADMIN. CODE 

ANN. r. 64E-16.606. Again, there is nothing improper in NEIE’s reliance on its 

subcontractor. As explained by an FDOH official, the intent of the law is to ensure 

that biomedical waste is not transported in Florida by an unregistered transporter; a 

prime contractor using a licensed Florida transporter is considered “fine.” AR, 

Tab 3. 

Page 3 B-400367.2 
unreasonable for the agency to rely on the experience of NEIE’s “sister” company, 

NEIE, Inc. Protest at 2. 

AES’s assertions are without merit. The RFP required offerors to provide a 

description of their applicable experience in the area of biomedical waste services, 

but did not specify any amount of experience or restrict the source of the 

experience. RFP ¶ 5.1.2. An agency properly may consider the experience of a 

predecessor firm or of the corporation’s principal officers that was obtained prior to

its incorporation date. Trailboss Enters., Inc., B-297742, Mar. 20, 2006, 2006 CPD 

¶ 64 at 4; R.J. Crowley, Inc., B-229559, Mar. 2, 1988, 88-1 CPD ¶ 220 at 6. NEIE 

Medical Waste Services, LLC was formed when its predecessor (“sister”) company, 

NEIE, Inc., divided its business lines and transferred all of its medical waste 

contracts to the new company. AR at 4. As relevant to the RFP here, the newly 

formed company shares the same contract management staff, processes, experience, 

and support as its predecessor. Id. In evaluating NEIE’s technical capability 

(including experience) as excellent, the agency reviewed information about NEIE, 

Inc., including its successful performance of three current, similarly scoped VA 

contracts for removal and disposal of medical waste. NEIE Proposal at 5; AR, Tab 

13. Since the agency could properly consider the experience of NEIE’s predecessor, 

there was nothing unreasonable in the agency’s evaluation. 

SDVOSB Requirements 

In its comments on the agency report, AES argues that NEIE fails to meet the RFP’s 

requirement that at least 50% of the cost of personnel for contract performance be 

spent for employees of an SDVOSB concern. RFP § 5.6(c). While AES raised this 

issue in its agency-level protest, and the agency denied the issue, AES’s initial protest 

to our Office did not specifically challenge the agency’s decision or otherwise raise 

this issue. Where a protest first has been filed with a contracting activity, any 

subsequent protest to our Office, to be considered timely, must be filed within

10 calendar days of “actual or constructive knowledge of initial adverse agency 

action.” 4 C.F.R. § 21.2(a)(3) (2008). VA’s denial of AES’s protest on this ground 

constituted initial adverse agency action. Since AES raised this issue with our Office 

for the first time in its comments--well more than 10 days after the agency denied its 

protest--it is untimely and will not be considered.3

 3

 In any event, an agency’s judgment as to whether a small business offeror will 

comply with a limitation on subcontracting provision is a matter of responsibility, 

and the contractor’s actual compliance with the provision is a matter of contract

administration. Coffman Specialties, Inc., B-284546, B-284546.2, May 10, 2000, 

2000 CPD ¶ 77 at 5. Only where a proposal, on its face, should lead an agency to the 

conclusion that an offeror could not and would not comply with the subcontracting 

limitation, will the proposal be considered unacceptable for award. See KIRA, Inc., 

B-287573.4, B-287573.5, Aug. 29, 2001, 2001 CPD ¶ 153 at 3. Here, the agency notes 

(continued...) 

Page 4 B-400367.2 
AES EVALUATION 

Sharps Exchange System 

AES maintains that the agency’s evaluation of its technical proposal was flawed and 

thus does not support the agency’s award to NEIE at a higher price. Specifically, 

AES asserts that the agency improperly found that it had proposed a sharps

exchange system, and downgraded its proposal on this basis. AES claims that, in 

fact, “nowhere in its submission” did it propose such a system; the “only” reference 

was in its company overview as one of six services offered by the firm. Comments

at 3. AES notes in particular that its proposal did not mention a sharps exchange 

program with reference to RFP paragraph D.4, which addressed disposal and 

sanitation requirements. Id.

In reviewing an agency’s technical evaluation, we will not reevaluate proposals, but 

will examine the record to ensure that it was reasonable and in accordance with the 

stated evaluation criteria and applicable procurement statutes and regulations. 

Harris Corp., B-299864 et al., Sept. 14, 2007, 2007 CPD ¶ 180 at 5. 

The evaluation here was reasonable. The RFP provided for the collection of various 

types of biomedical waste at each facility’s pick-up area using contractor-furnished

containers. RFP ¶¶ D.1.1, D.4. VA personnel were responsible for distributing these 

containers throughout the facilities and for returning them to the waste pick-up area. 

RFP ¶ D.5.1. Contractors were not responsible for providing sharps containers, 

which were to be purchased and stocked by VA. RFP ¶ D.1.1. However, AES’s 

proposal cover letter described, among other procedures that would or could be 

provided, an expansion of VA’s medical waste program through a “reusable sharps

program” that entailed AES’s entry into the facility to swap full sharps containers

with clean containers, and provided the benefits of lowered expenses and 

elimination of needle-stick exposure to staff. AR, Tab 23. As part of its experience 

description, AES’s proposal noted the firm’s specialization in providing 

comprehensive waste management, including “sharps exchange services,” again 

described the services, and identified AES’s partner firm that would perform the 

services. Id. In evaluating AES’s proposal, the TEP noted that the proposed 

program would not work at facilities as complex as VA’s installations. AR, Tab 18. 

In this regard, the infection control section at one of the medical facilities covered by 

the contract had reviewed the program and did not recommend using it, apparently 

 

(...continued) 

that NEIE did not take exception to this requirement and that it provided a labor 

hour plan supporting its intent to comply with the requirement. Agency Protest

Denial, Aug. 18, 2008, at 1. 

Page 5 B-400367.2 
due to access issues. Id.; AR at 5. In the TEP’s view, this proposal weakness could 

not be corrected easily. AR, Tab 13. 

Contrary to AES’s assertions, its proposal clearly described a proposed sharps

exchange system or program. While AES did not repeat information about its sharps

system in its proposal section concerning disposal and sanitation requirements

(¶ D.4), its absence there was not inconsistent with its proposal elsewhere. In this 

regard, its cover letter identified these and other services as “key differences” from 

other proposals and its later description of the services did not clearly identify the 

services as optional. AR, Tab 23. Since the RFP provided for the VA to furnish 

sharps containers and for its personnel to convey waste to the waste pick-up point,

AES’s proposal to enter and replace sharps containers throughout the facility was 

reasonably considered part of its proposal and evaluated as a weakness when 

compared with the VA’s stated requirements.

Past Performance 

AES asserts that the evaluation of its past performance was flawed because the 

agency did not make a sufficient attempt to contact one of its references--a firm 

performing a contract at the VA Medical Center (VAMC) in Washington, D.C. 

The evaluation was reasonable. The RFP requested at least three past performance 

references for offerors’ most recent and relevant contracts for biomedical waste 

services. RFP ¶ 5.1.5. AES’s proposal listed four references, with telephone 

numbers and brief descriptions of its work, including contracts for medical waste 

packaging services, supply of medical waste containers, removal and destruction of

regulated medical waste and recycling of other waste, and destruction of U.S. 

currency waste. Proposal ¶ 5. It also identified three contracts with other VAMCs,

but provided no contact information. Id. 

The agency states that it had difficulty contacting any of AES’s references, including 

the Washington, D.C. VAMC reference. The agency was able to correctly deduce the 

contractor’s name, but it found that the person listed as a reference “did not exist at

the contact number provided.” AR at 5. While AES states that the number provided 

was, and remains, the reference’s cell phone number, an agency is only required to 

use reasonable efforts to contact an offeror’s past performance references; it is not

required to make multiple attempts to contact such references. See OSI Collection 

Servs., Inc.; C.B. Accounts, Inc., B-286597.3 et al., June 12, 2001, 2001 CPD ¶ 103 at 9. 

AES has not shown that the agency’s efforts to contact the Washington, D.C. 

reference were unreasonable. Rather, it appears that it was AES’s providing a single 

cell phone number, and no other contact information (e.g., a phone number for the 

headquarters of the contractor) that led to the agency’s unsuccessful efforts. We 

Page 6 B-400367.2 
conclude that there was no impropriety on the part of the agency, and therefore find 

no basis for questioning the past performance evaluation.4 

Since we find no error in the agency’s evaluation of the proposals, and price and 

technical factors were weighted equally, there is no basis to question the SSA’s

determination that the technical advantages of NEIE’s proposal justified its price 

premium.

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

 4

 In any event, AES does not appear to have been prejudiced by the agency’s actions. 

Even though its “low risk” rating was not the highest possible, AES provides nothing 

to support a finding that contact with the Washington, D.C. VAMC reference would 

have significantly improved its overall past performance rating. Our Office will not 

sustain a protest unless the protester demonstrates a reasonable possibility that it 

was prejudiced by the agency’s actions. McDonald-Bradley, B-270126, Feb. 8, 1996, 

96-1 CPD ¶ 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 

1996). 

Page 7 B-400367.2