United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

Decision

Matter of: Estrategy, Inc.

File: B-406419

Date: May 9, 2012

Lee Dougherty, Esq., and Katherine A. Straw, Esq., General Counsel P.C., for the 

protester.

William E. Hughes, III, Esq., Whyte Hirschboeck Dudek S.C., for NEIE Medical 

Waste Services, LLC, an intervenor.

Kate Gorney, Esq., Department of Veterans Affairs, for the agency.

Linda C. Glass, Esq., and Guy R. Pietrovito, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

Protest of an agency’s award of a contract is denied where the agency reasonably 

found that the awardee complied with the solicitation’s licensing requirements.

DECISION

Estrategy, Inc., of North Kansas City, Missouri, protests the award of a contract to 

NEIE Medical Waste Services, LLC, of Quinton, Virginia, under request for 

proposals (RFP) No. VA-261-11-RP-0108, issued by the Department of Veterans 

Affairs (VA) for hazardous waste disposal services for the agency’s Sierra Nevada 

Health Care System. The protester contends that the awardee’s proposal was not 

technically acceptable.

We deny the protest.

BACKGROUND

The RFP, issued as a service-disabled veteran-owned small business (SDVOSB) 

set-aside, provided for the award of a fixed-price, indefinite-quantity contract to the

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This redacted version has 

been approved for public release.
Page 2 B-406419 

offeror that submitted the lowest-priced, technically acceptable proposal.1 RFP 

at 23. 

The RFP provided that proposals would be evaluated for technical acceptability, past 

performance, and price. Id. With respect to technical acceptability, which was to be 

evaluated on a pass/fail basis, the RFP provided the following:

 (i) Assessment: The offeror’s proposal shall, as a minimum, 

address each of the technical proposal criteria as they apply to the 

SOW. During evaluations of each proposal, the Government will 

assess each area of the Technical Proposal to ensure the offeror 

meets or exceeds the standards of the contract. The Government 

will evaluate the technical proposal based on the evaluation criteria 

described in Section A through C below, which are tailored to 

specific principal tasks in the SOW. The Government will infer from 

the offeror’s responses to these specified evaluation criteria the 

offeror’s capability to perform to the requirements of the entire SOW. 

In order to be considered for award, the offeror must demonstrate 

the ability to provide adequate and qualified staff and expertise to 

satisfy the statement of work requirements by describing or 

providing the information requested below:

a. Contractor shall submit medical waste and license permits.

b. Contractor shall provide an organization chart, listing of 

superintendent and other key staff members and appropriate 

competency level training that demonstrates the contractor’s ability 

to process each waste stream in accordance with Federal and State 

Laws.

c. Contractor shall provide proof of ability to provide online real time 

waste stream data via documentation demonstration or online 

demonstration.

RFP at 23-24. 

 1 As originally issued, the RFP stated that the solicitation was a total set-aside, but 

failed to identify what type of set-aside. Subsequently, the solicitation was amended 

to provide that the RFP was set aside for SDVOSBs. The RFP did not incorporate 

or include, however, Federal Acquisition Regulation § 52.219-27, “Notice of Total 

Service-Disabled Veteran-Owned Small Business Set-Aside.”
Page 3 B-406419 

VA amended the RFP on December 22, 2011. This amendment revised the 

statement of work (SOW) but did not revise the evaluation criteria. As is relevant 

here, with respect to the licenses requirement, the SOW was amended as follows:

5.7. Contractor shall also have an assigned U.S. Environmental 

Protection Agency (EPA) authorization and identification number, 

necessary Department of Transportation permits, insurance prior to 

transport and/or disposal of subject waste. If contractor requires 

additional information, they may contact U.S. EPA regional office. 

Copy of all licenses shall be provided to Contracting Officer 

upon contract award.

RFP amend. 2, at 8 (emphasis in original).

With respect to past performance, the RFP stated that the agency would assess how 

offerors performed on recent contracts (within the past 3 years) of similar size and 

scope along with the customer ratings. RFP at 24.

VA received three proposals, including the protester’s and NEIE’s. NEIE stated in its 

proposal that all “[r]egulated Medical Waste will be properly processed and disposed 

of in strict accordance with all established Department of Environmental Protection 

Agency regulations.” See Agency Report (AR) Tab 3, NEIE’s Technical Proposal, at 

4. With respect to the license requirements, NEIE stated that waste facility permits 

and current insurance certificates would be provided upon contract award. Id. The 

protester provided copies of its licenses with its proposal. The proposals were 

evaluated by the agency’s technical evaluation team (TET) as follows:

NEIE ESTRATEGY OFFEROR A

Technical Acceptability Pass Pass Fail

Past Performance

Significant 

Confidence Neutral

Little 

Confidence

Price $83,518.12 $312,915.20 $96,588.72

Contracting Officer’s Statement at 1; TET Consensus Evaluation Report, Jan. 30, 

2012.

As relevant here, NEIE’s proposal was found to be technically acceptable based on 

its representation that permits and licenses would be provided at contract award and 

its adequate description of the firm’s proposed organization and ability to provide 

online, real-time waste stream data. Consensus Evaluation Report, Jan. 30, 2012, 

at 2. NEIE received award as the lowest-priced, technically acceptable offeror. See

AR, Tab 4, Source Selection Decision, at 5. This protest followed a debriefing.
Page 4 B-406419 

DISCUSSION

Estrategy argues that NEIE’s proposal is not technically acceptable because NEIE 

did not submit copies of all required licenses with its proposal, as Estrategy argues 

is required by the RFP.2 In this regard, the protester contends that the RFP 

provision that, “in order to be considered for award,” offerors “shall submit medical 

waste and license permits,” was a definitive responsibility criterion which had to be 

satisfied prior to contract award. Comments at 3.

The agency responds that the RFP, as originally issued, allowed offerors to describe 

or submit license permits, and did not require that license permits be submitted with 

the offers. The agency further notes that the RFP was amended to specifically 

provide that licenses were required upon contract award.

We do not agree with Estrategy that the RFP required the submission of permits and 

licenses prior to contract award. Rather, as noted above, the RFP was amended to 

specifically provide that copies of licenses were to be provided to the contracting 

officer after award. See RFP amend. 2, at 8. 

To the extent that the protester argues that there is a conflict between this provision 

in the amendment and the solicitation’s evaluation criteria, this is a patent ambiguity 

in the RFP that Estrategy was required to protest prior to the closing date for receipt 

of proposals. Under our Bid Protest Regulations, protests of apparent alleged 

solicitation improprieties must be filed prior to the time for receipt of proposals. 

4 C.F.R. § 21.2(a)(1) (2011). Where a patent ambiguity is not timely challenged, we 

will not accept a protester’s subsequent interpretation. See Kellogg Brown & Root, 

Inc., B-291769, B-291769.2, Mar. 24, 2003, 2003 CPD ¶ 96 at 8; Bank of Am.

 2 The protester also appears to object to the agency’s evaluation of NEIE’s proposal 

under the past performance evaluation factor based on negative information 

provided in an agency-level protest concerning another procurement that Estrategy 

alleges demonstrates that NEIE was not registered to do business in the state of 

New York. However, there was no requirement in the RFP for the agency to 

consider this information in its past performance evaluation under the current 

solicitation. Moreover, the record shows that NEIE has successfully performed a 

contract in the state of New York and its performance of that contract was rated 

excellent. TET Consensus Report at 6.

, 

B-287608, B-287608.2, July 26, 200, 2001 CPD ¶ 137 at 10. Estrategy may not now 

assert that the only permissible interpretation of the solicitation’s licensing 

requirements is its own.
Page 5 B-406419 

Here, the VA determined that NEIE’s promise to comply with all licensing 

requirements was acceptable.3 The record provides no basis to object to this 

determination.

Estrategy also protests that based upon NEIE’s low price, the awardee may not be 

performing 51 percent of the work as required by FAR § 52.219-27. Protest at 4. 

Estrategy’s protest, however, fails to include a citation to any such requirement in 

the solicitation, nor does the record indicate that this clause was incorporated or 

included in the RFP. Accordingly, this allegation is factually and legally insufficient, 

and we will not consider it.4

 4 C.F.R. §§ 21.2(c)(4), 21.5(f); Excalibur Laundries, 

Inc., B-405814, B-405814.2, Jan. 3, 2012, 2012 CPD ¶ 1 at 6.

The protest is denied.

Lynn H. Gibson

General Counsel

 3 Furthermore, where an agency evaluates a responsibility related evaluation factor, 

such as a license requirement, on a pass/fail basis rather than comparatively, the 

rejection of a small business offeror as unacceptable is tantamount to a 

nonresponsibility determination, which must be referred to the Small Business 

Administration for consideration under that agency’s certificate of competency 

procedures. Joanell Labs., Inc.; Nu-Way Mfg. Co, Inc., B-242415.8, et al., Apr. 15, 

1992, 92-1 CPD ¶ 369 at 6.

4 In any event, there is nothing on the face of NEIE’s proposal that evidences that 

the firm cannot and would not comply with the limitation of subcontracting provisions 

of FAR § 52.219-27.