BNUMBER:  B-261244.2; B-261244.3; B-261244.4; B-261244.5
DATE:  September 11, 1995
TITLE:  Newport News Shipbuilding and Dry Dock Company;
Combustion Engineering, Inc.; Sierra Nuclear Corporation

**********************************************************************

REDACTED DECISION
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.

Matter of:Newport News Shipbuilding and Dry Dock Company;
          Combustion Engineering, Inc.; Sierra Nuclear Corporation
                             
File:     B-261244.2; B-261244.3; B-261244.4; B-261244.5

Date:     September 11, 1995

Donald C. Holmes, Esq., and Michael A. Gordon, Esq., Holmes, Schwartz 
& Gordon, for Newport News Shipbuilding and Dry Dock Company, a 
protester.
Gerald D. Morgan, Jr., Esq., William H. Espinosa, Esq., and Jeffrey A. 
Lovitky, Esq., Winthrop, Stimson, Putnam & Roberts, for Combustion 
Engineering, Inc., a protester.
John Burkholder, Esq., Morgan, Lewis & Bockius, for Sierra Nuclear 
Corporation, a protester.
L. Graeme Bell III, Esq., Monica Parham, Esq., and Christopher Wood, 
Esq., Crowell & Moring, for Westinghouse Electric Corporation, an 
interested party.
Louis D. Victorino, Esq., John W. Chierichella, Esq., Catherine E. 
Pollack, Esq., and Lawrence E. Ruggiero, Esq., Fried, Frank, Harris, 
Shriver & Jacobson, for TRW Environmental Safety Systems Inc., the 
management and operating prime contractor for the Department of 
Energy.
Mary H. Egger, Esq., Gena E. Cadieux, Esq., and Janet Zoe Barsy, Esq., 
Department of Energy, for the agency.
Susan K. McAuliffe, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Award of single contract was permitted under solicitation which 
expressly stated that one or more contracts could be awarded; protests 
that offerors were misled to believe more than one award would be made 
are denied where contention is not reasonably supported.

2.  Agency's management and operating (M&O) contractor performed 
appropriate price analysis under solicitation which contemplated award 
of fixed-price contract where M&O contractor determined that awardee's 
price was reasonable and realistic on the basis of its review of 
awardee's detailed pricing data related to its proposed approach and a 
comparison to the other proposals.

3.  Protests challenging disparate treatment and improper evaluation 
of technical proposals are denied where evaluation record shows that 
evaluation of proposals was reasonable and consistent with the 
solicitation's evaluation criteria and alleged irregularity in the 
evaluation had an insignificant effect, if any, on the offerors' 
technical evaluation scores and would not affect the reasonableness of 
the award determination in light of the protesters' substantially 
higher prices (or substantially lower technical evaluation scores).

DECISION

Newport News Shipbuilding and Dry Dock Company, Combustion 
Engineering, Inc., and Sierra Nuclear Corporation protest the award of 
a subcontract to Westinghouse Electric Corporation under request for 
proposals (RFP) No. VA.CS.WLS.6/94.015.  The RFP was issued by TRW 
Environmental Safety Systems, Inc. (TESS), as the management and 
operating (M&O) prime contractor to the Department of Energy (DOE), 
for the design of multi-purpose canister (MPC) systems for managing 
the storage, transportation, and disposal of spent nuclear fuel.  
Newport News and Combustion Engineering principally contend that the 
RFP required multiple awards and that TESS improperly evaluated 
offerors' price and technical proposals.  Sierra Nuclear Corporation 
protests the evaluation of its proposal.

We deny the protests.

The RFP was issued on June 3, 1994, by TESS, as the M&O prime 
contractor for DOE, and set forth a 3-phase procurement scheme--Phase 
1 involves the design and preparation of safety analyses for two MPC 
systems (large and small) and the preparation of alternative design 
studies and special technical reports (the subcontract awarded to 
Westinghouse for Phase 1 is the subject of the current protests); 
Phase 2 involves an option for Nuclear Regulatory Commission (NRC) 
certification of the Phase 1 designs, fabrication of scale model and 
prototype system components, and testing of the components; and Phase 
3 involves an option for fabrication and delivery of the MPC systems 
and welding equipment.[1]

The RFP provided for TESS' "award of one or more fixed-price 
subcontracts" for Phase 1, TESS' subsequent evaluation of design 
documentation and revised "proposal(s) [to] select one or more 
offerors to proceed" with Phase 2, and, concurrent with the 
performance of Phase 2, for TESS to evaluate designs and offers for 
production, fabrication, and delivery and "select not more than one of 
the offerors to proceed to Phase 3 fabrication and delivery.  The RFP 
advised that "[o]fferors not awarded initial subcontracts for Phase 1 
are not eligible for participation in subsequent phases."  The RFP 
provided that "TESS intends to award a subcontract(s)" to the 
"[o]fferor(s) whose proposal meets all of the MPC systems' 
requirements and is judged to represent the best value to the 
Government" using the following stated evaluation criteria:  technical 
factors (including design, certifiability, system operability, and 
fabricability); business and management factors (including corporate 
experience, personnel, management plans, and facilities); and price 
(including analysis of cost and price proposals for reasonableness and 
realism).  For Phase 1, the business and management factor was more 
important than the technical factor and price was least important.[2]

The RFP, as amended, required offerors to submit firm, fixed prices 
for Phase 1, and fully supported estimated prices for Phases 2 and 
3.[3]  Offerors were to calculate their proposed prices based on 
estimated quantities and types of spent nuclear fuel set forth in the 
RFP.  Firm, fixed prices for Phases 2 and 3 were required from any 
successful Phase 1 offeror 9 and 24 months, respectively, after award 
of Phase 1.  Proposed estimated prices for Phases 2 and 3 were to be 
evaluated under the Phase 1 evaluation to determine proposed total 
prices, however, award of Phase 1 was to be made in the amount of the 
firm, fixed prices for Phase 1 only without any obligation on the part 
of TESS to exercise the Phase 2 and 3 options.

Five offerors submitted proposals by October 24.  TESS Resource Teams, 
each assigned an evaluation factor, evaluated the proposals.  The 
Source Election Board (SEB) developed consensus ratings for each 
offeror's proposal based upon the Resource Team reports and assigned 
ratings to the proposals after applying the weights assigned to each 
factor.  Price proposals were separately evaluated.  All five 
proposals were included in the competitive range and discussions were 
held with the offerors.  Best and final offers (BAFO) were received by 
February 21, 1995.  After evaluation of the BAFOs, the SEB assigned 
"best value" rankings to the proposals, listed below in descending 
order, where "points" refers to the total evaluation points received 
under the technical and business and management factors out of a 
possible 100 points:

1.  Westinghouse (with [DELETED] points, a Phase 1 proposed price of 
$14,049,233, a Phase 2 and 3 proposed estimated price of [DELETED], 
and a total price of [DELETED];

2.  Holtec International (with [DELETED] points, a Phase 1 proposed 
price of [DELETED], a Phase 2 and 3 proposed estimated price of 
[DELETED], and a total price of [DELETED];

3.  Newport News (with [DELETED] points, a Phase 1 proposed price of 
[DELETED], a Phase 2 and 3 proposed estimated price of [DELETED], and 
a total price of [DELETED];

4.  Combustion (with [DELETED] points, a Phase 1 proposed price of 
[DELETED], a Phase 2 and 3 proposed estimated price of [DELETED], and 
a total price of [DELETED];

5.  Sierra (with [DELETED] points, a Phase 1 proposed price of 
[DELETED], a Phase 2 and 3 proposed estimated price of [DELETED], and 
a total price of [DELETED].)

The SEB briefed the Source Selection Authority (SSA) on its findings 
and the SSA forwarded a recommendation to DOE for award of Phase 1 
subcontracts to Westinghouse and Holtec.  DOE authorized award only to 
Westinghouse, finding that all other proposals "raise[d] certain 
technical, business management or cost concerns."  TESS awarded a 
single subcontract for Phase 1 to Westinghouse on April 20, 1995.  
These protests followed.[4]

Newport News and Combustion initially challenge TESS' award of a 
single contract to Westinghouse on the basis that the RFP required 
multiple awards for Phase 1.  Alternatively, the protesters contend 
that offerors were misled to believe that more than one award would be 
made.  We disagree.

Initially, our review of the record shows that the terms of the RFP 
clearly notified all offerors that one or more awards could be made 
for Phase 1.  The RFP also explained that an offeror only would be 
eligible for participation in the Phase 2 and 3 options if awarded a 
Phase 1 subcontract.  The protesters thus should have known from the 
RFP that a single Phase 1 award could be made which, under the RFP's 
terms, would have limited eligibility for further participation in the 
procurement to one firm, as here.  The protesters' challenges to the 
RFP's terms and the contentions that the single award to Westinghouse 
has created an improper sole source "situation" for Phases 2 and 3 are 
untimely.[5]  Protests of solicitation improprieties must be filed 
with our Office prior to the time set for receipt of initial proposals 
to be timely.  4 C.F.R.  21.2(a)(1) (1995); see Continental Technical 
Servs. of Georgia, Inc., B-259681; B-259681.2, Apr. 19, 1995, 95-1 CPD  
204.

Further, nothing in the record demonstrates, as the protesters 
contend, that communications from the M&O contractor or DOE before the 
issuance of the RFP and after the submission of proposals could have 
reasonably misled offerors.  The challenged communications essentially 
involve the use of the word "awards" rather than "award(s)," but are 
not inconsistent with the RFP's stated terms providing for either one 
or multiple awards.  The timing of the communications themselves shows 
that if the protesters in fact interpreted them to mean that multiple 
awards would be made, those offerors' reliance on that interpretation 
in preparing their proposals was unreasonable.  See Essex Electro 
Eng'rs, Inc., B-238207; B-238207.2, May 1, 1990,  90-1 CPD  438.  The 
subsequently issued RFP and its terms are controlling over any pre-RFP 
statements and any challenged statement made after the submission of 
proposals is irrelevant to the preparation of the proposals.  In fact, 
[DELETED].[6]  

Newport News and Combustion next challenge the adequacy of TESS' 
evaluation of price proposals.  The protesters contend that 
Westinghouse submitted a "low-ball" price proposal which should have 
been rejected or adjusted upward under a "most probable cost" 
analysis; the protesters contend that TESS improperly failed to 
perform an in-depth cost realism analysis of the proposals.

The RFP provided that proposals must include sufficient information, 
including a Standard Form 1411, and bases of estimates, with a cost 
breakdown of proposed prices and the method and basis of calculating 
the proposed prices, for TESS to verify "the basis for and 
reasonableness of the prices offered."  The RFP provided that "[t]he 
cost and price proposal will not be point scored, assigned a numerical 
weight, or adjectivally rated" and that price proposals would be 
evaluated in accordance with the following:

 "A.  Cost/Price Analysis.  Analysis of cost and price proposals will 
 be performed in accordance with the [Federal Acquisition Regulation 
 (FAR)] and [Department of Energy Acquisition Regulation (DEAR)].

 "B.  Cost/Price Realism.  An unrealistic price proposal may be 
 evidence of the [o]fferor's lack of understanding or poor 
 understanding of the scope of 
 work . . . ."

TESS found all of the offerors' proposed prices reasonable and 
realistic based upon the information contained in the proposals and 
did not adjust the proposed prices (except for correction of a 
mathematical error in Newport News's proposal which the protester does 
not challenge).  Firms that submitted more detailed pricing data, as 
required by the RFP, however, were found by TESS to provide a higher 
degree of confidence in the reasonableness and realism of the proposed 
prices.  Westinghouse's prices were found to be supported by a 
comprehensive breakdown of pricing components.  The Westinghouse price 
proposal, which was [DELETED] included detailed line item bases of 
estimates, including applicable labor categories, hours and rates.  
Westinghouse also provided a detailed breakdown of tasks and 
descriptions of the work to be performed within each line item to 
support the firm's proposed prices.

Although Newport News, which offered the highest prices for all three 
phases of performance ([DELETED] percent higher than the awardee's), 
was requested several times during the procurement to provide detailed 
bases of estimates to support its and its team members' proposed 
prices, Newport News failed to submit additional pricing information.  
Instead, Newport News contends that its proposed pricing was accurate 
and adequately supported because it was "based primarily on actual, 
verifiable cost experience" with similar contracts.  TESS found, 
however, that Newport News's costs remained, in part, unsubstantiated 
since without further explanation of the direct relationship of past 
costs on different contracts involving many different components and 
approaches, TESS could not fully assess the reliability of the firm's 
proposed pricing under the current RFP.

Where, as here, the award of a fixed-price contract is contemplated, a 
proposal's "cost realism" is not ordinarily considered since a 
fixed-price contract places the risk and responsibility for contract 
costs and resulting profit or loss on the contractor, even if the 
solicitation states generally that prices will be evaluated for 
realism.  Crestmont Cleaning Serv. & Supply Co., Inc.; Scott & Sons 
Maintenance, Inc.; Son's Quality Food Co., B-254486 et al., Dec. 22, 
1993, 93-2 CPD  336; Culver Health Corp., B-242902, June 10, 1991, 
91-1 CPD  556.  Under the FAR, the procuring agency in its discretion 
may provide for performance of a price analysis to determine that the 
proposed prices are fair and reasonable.  FAR  15.805-1 and 
15.805-2; Family Realty, B-247772, July 6, 1992, 92-2 CPD  6.  Here, 
the RFP did not provide for any specific type of cost or price 
evaluation, but rather generally referenced the price and cost 
analysis methods available under the FAR and DEAR.  The M&O 
contractor, in its discretion, conducted a price analysis for this 
fixed-price contract.  The FAR provides a number of price analysis 
techniques that may be used to determine whether prices are fair and 
reasonable, including a comparison of the prices received with each 
other.  FAR  15-805.2; Ogden Gov't Servs., B-253794.2, Dec. 27, 1993, 
93-2 CPD  339.  The depth of an agency's price analysis is a matter 
within the sound exercise of the agency's discretion.  Research 
Management Corp., 69 Comp. Gen. 368 (1990), 90-1 CPD  352; Family 
Realty, supra.

We have no basis to conclude that TESS' price analysis and 
determination that Westinghouse's prices were reasonable and realistic 
were not in accordance with the RFP's terms and the federal norm.[7]  
As discussed above, an in-depth cost realism (or as Newport News 
contends, a most probable cost) analysis was not required by the FAR, 
the solicitation, or the federal norm.  FAR  15.805; Ogden Gov't 
Servs., supra; Serv-Air, Inc.--Recon., 58 Comp. Gen. 362 (1979), 79-1 
CPD  212.[8]  Since there were five offerors in the competitive 
range, TESS decided that adequate price competition existed and 
compared the price proposals internally and to each other--[DELETED].  
The record supports the agency's view that each offeror's proposed 
price reasonably related to the differences in proposed approach.  
Finally, Westinghouse's price proposal was found to be comprehensive 
in supporting its costs.

The protesters next challenge the technical evaluation of the 
proposals.  We will review an evaluation to ensure that it was 
reasonable and consistent with the stated evaluation criteria.  See 
Space Applications Corp., B-233143.3, Sept. 21, 1989, 89-2 CPD  255.  
The determination of the merits of proposals is primarily a matter of 
administrative discretion which we will not disturb unless the 
evaluation was arbitrary or unreasonable.  See Realty Executives, 
B-237537, Feb. 16, 1990, 90-1 CPD  288.  The fact that a protester 
does not agree with the evaluation does not render the evaluation 
unreasonable.  Logistics Servs. Int'l, Inc., B-218570, Aug. 15, 1985, 
85-2 CPD  173.  In a best value procurement, as here, where there is 
a substantial price difference between the protester's proposal and 
the awardee's proposal, the protester must show that its proposal 
should have been evaluated by the agency not just as essentially 
technically equal or close in technical merit, but as overall 
technically superior to the awardee's proposal.  See Scheduled 
Airlines Traffic Offices, Inc., B-253856.7, Nov. 23, 1994, 95-1 CPD  
33.[9]

The protesters assert numerous challenges to the M&O contractor's 
determination that Westinghouse's proposal offered the best value to 
the government.  Many of the contentions simply are unsubstantiated; 
most of the contentions reflect the protesters' disagreement with the 
agency's evaluation but do not persuasively demonstrate that the 
evaluation was unreasonable.  Each protester generally contends that 
it should have received additional points for the evaluation factors 
under which they failed to receive the maximum points available or, 
alternatively, that Westinghouse's proposal should have received fewer 
points under each evaluation factor.  Our review of the procurement 
and protest records, including the RFP, the evaluation documents, the 
protesters' proposals, and the protest submissions of the parties, 
shows that TESS and DOE made a reasonably supported best value 
determination in awarding the subcontract to Westinghouse.  
Specifically, we think the minimal evaluation point differences among 
the offerors that would result if the allegations of inconsistent 
evaluations in fact had merit, would have had an inconsequential 
effect on the award determination given the substantial price 
differences between the awardee's and protesters' proposals (or in the 
case of Sierra's protest, the substantial difference in technical 
scores).

First, Sierra protests the evaluation of its own proposal on 
principally two bases: that the evaluators improperly downgraded 
Sierra for lack of large, complex contract experience and for 
providing insufficient pricing data to support its proposed 
prices.[10]  Our review of the record supports the reasonableness of 
TESS' evaluation under the challenged technical evaluation area.  
Sierra states that had it known that large, complex contract 
experience was to be favored, [DELETED].  TESS defends its evaluation 
by pointing out that the RFP was clear, and thus the protester was on 
notice, that one of the most important evaluation factors for the 
business and management proposal was "corporate experience and success 
in performance on contracts of size and complexity similar to that 
being proposed."  We agree that the RFP reasonably advised Sierra of 
the need for experience comparable to the work under the RFP.  The 
protester does not rebut TESS' determination that Sierra's proposal 
[DELETED].  Our review of the proposal confirms the reasonableness of 
that determination; in fact, [DELETED], despite the matter having been 
raised with the protester during discussions.  

Next, Newport News and Combustion challenge the evaluation of their 
own and Westinghouse's proposals under every evaluation factor stated 
in the RFP.  Westinghouse received consistently high scores under each 
evaluation factor and its proposal was determined low risk based upon 
a conservative approach to meeting the RFP requirements substantiated 
by a very detailed, comprehensive proposal. Westinghouse received the 
highest total technical and business and management score and offered 
a price approximately [DELETED] percent lower than Newport News and 
Combustion, and only approximately [DELETED] percent higher than 
Sierra's proposal which received significantly lower evaluation 
scores.  Although each proposal was evaluated by the Resource Teams on 
an individual basis, as called for in the source selection plan, the 
best value determination required a comparative evaluation of the 
proposals' relative technical merit which supported the award to 
Westinghouse.  Our review of the evaluation record confirms the 
reasonableness of TESS' award to Westinghouse.

DESIGN

The most important technical evaluation factor was design.  Although 
the offerors were all rated as satisfactory for design, the noted 
strengths and weaknesses of each proposal differed due to the 
different approaches proposed.  Combustion's proposal, for instance, 
was downgraded for failing to provide as detailed a design proposal as 
requested by the RFP.  Combustion protests that its design should have 
been rated higher because it surpassed the [DELETED] requirements of 
the RFP.  The record shows that its proposal received credit for 
exceeding [DELETED]--as did the other offerors' proposals that 
exceeded the [DELETED] requirements.  However, its proposal was 
reasonably downgraded for including many general statements of 
compliance with other RFP design requirements rather than 
demonstrating compliance and thus, additional credit was not 
warranted.  

Under the design factor, Newport News's and Westinghouse's proposals 
had similar significant strengths, but Newport News's proposal also 
was evaluated as having a significant weakness regarding the 
[DELETED].  The protester states that it responded adequately to these 
concerns, but the record does not show that TESS' remaining concerns 
in the area did not justify the lower rating for design.  

Newport News also contends that Westinghouse's proposal's design score 
should have been lowered for introducing a [DELETED] design that had 
not [DELETED].  The record, however, shows that the proposed [DELETED] 
was fully substantiated in Westinghouse's proposal and was reasonably 
rated as satisfactory.  TESS correctly noted that although NRC 
certification is an important aspect of the overall evaluation of 
proposals, the RFP design subfactors did not specifically include NRC 
certification requirements.  We also think TESS reasonably considered 
Westinghouse's presentation of supporting information showing that its 
[DELETED] was based upon an existing, effective design, and thus, 
TESS' technical rating of Westinghouse's proposal under design was 
reasonable.

CERTIFIABILITY

Regarding the evaluation of certifiability, this RFP evaluation factor 
contemplated review of the degree of confidence presented by the 
proposals for timely design certification by NRC (the proposal of NRC 
approved quality assurance programs and the offer of products or 
components previously certified by the NRC would warrant higher scores 
under the evaluation factor).  Westinghouse's proposal was rated 
slightly higher than Newport News's and Combustion's proposals under 
this factor and, we think, the record adequately supports the ratings.  
Newport News and Combustion both [DELETED].  Although Westinghouse was 
cited for a significant weakness concerning [DELETED] the substantial 
detail in the certifiability section in its proposal, which 
demonstrated considerable knowledge of the NRC certification process 
and offered a proactive, attentive approach to meeting NRC 
requirements, reasonably led TESS to consider Westinghouse's approach 
to be an acceptable risk under the certifiability criterion.

Newport News's proposal was assigned a significant weakness under the 
certifiability factor for failing to propose the use of 
[DELETED]--which are used in previously NRC certified containers.  
Newport News also failed to adequately respond to TESS' questions 
regarding NRC's ongoing concerns regarding the firm's current NRC 
application for certification of its product.  We find unpersuasive 
Newport News's argument that its proposal should have been rated 
higher than Westinghouse's for certifiability on the basis that its 
NRC application has already been filed--being the first to file at NRC 
is not necessarily demonstrative of timely success in the NRC 
certification process.

Further, neither the record nor Combustion's disagreement with the 
evaluation determinations warrants a change in Combustion's 
certifiability score.  Combustion failed to provide the detailed 
information required by the RFP to support its proposal.  
Specifically, although Combustion states that its product has been 
[DELETED], the firm failed to show that it fully understood the NRC 
certification process and failed to discuss in sufficient detail in 
its proposal its anticipated NRC rulemaking time frames.  We believe 
it was incumbent upon Combustion to provide supporting information in 
this regard to include, for instance, additional information [DELETED] 
to support its assertion of its ability to timely obtain NRC 
certification of its product and to further substantiate the firm's 
familiarity with NRC requirements.  TESS' conclusions are adequately 
supported on the record.

SYSTEM OPERABILITY

System operability was the third important technical factor and, the 
record shows, represents an important distinguishing factor among the 
proposals.  Westinghouse's proposal under this factor was found by 
TESS to provide an "excellent presentation of reliability and 
supportability that indicated a thorough understanding of their 
applicability in the design of equipment and components."  The 
proposal was well-received for showing a good understanding of system 
safety and efficiency, and for providing good interchangeability of 
parts.  Although some concern was raised as to the [DELETED], the 
offeror did provide details for an alternative method of [DELETED] 
that minimized the earlier concern.  

Newport News's proposal, on the other hand, which received no 
significant strengths for system operability, was downgraded under 
this factor for its significant weakness in failing to meet the RFP 
requirement for the proposed [DELETED].  Newport News's proposal was 
also downgraded slightly for a lack of detail in its proposal for 
system operability and the firm provides no basis to question that 
finding.  The firm's contention that TESS should have realized that, 
since the firm's proposal stated that the firm had built other 
canisters, the required processes and equipment were in place, is 
unreasonable.  It is the offeror's responsibility to submit an 
adequately written proposal.  See INFOCUS Communications, B-256244, 
May 31, 1994, 94-1 CPD  330.

Our review of the record also shows that Combustion's proposal was 
reasonably downgraded for system operability since, despite being told 
during discussions that TESS had concerns about [DELETED], the firm 
failed to provide adequate explanation to alleviate the concerns.[11]

BUSINESS AND MANAGEMENT

Newport News's proposal received the highest total score under the 
business and management evaluation factors; Westinghouse's proposal 
was rated [DELETED] (by a minimal difference in score) and 
Combustion's proposal was rated [DELETED] (by a more substantial 
margin).  Again, Combustion's proposal's main weakness, which is 
confirmed by our review of the record, was a lack of detail; for 
example, Combustion offered insufficient information to show 
[DELETED].  Combustion's contention that the SSA wrongfully failed to 
accept the Resource Team's higher ratings for its corporate experience 
and management plan is not persuasive--the SSA was entitled to, and 
reasonably did, under each respective factor, take into account the 
proposal's lack of information regarding [DELETED] and justifiable 
concerns about the [DELETED].[12]  See Sarasota Measurements & 
Controls, Inc., B-252406.3, July 15, 1994, 94-2 CPD  32.

Newport News essentially attempts to reevaluate its own business and 
management proposal compared to Westinghouse's proposal in its protest 
submissions and argues that if it received the full 10 points 
available under each evaluation factor (instead of the 9 points it 
received), and Westinghouse's score was lowered under any or all of 
the business and management evaluation factors, Newport News's 
proposal would be found technically superior.  Newport News contends 
that the evaluators improperly credited the Westinghouse proposal 
under the corporate experience factor for the experience of certain 
key personnel whose experience was separately evaluated under the 
personnel evaluation factor.  The corporate experience factor required 
offerors to show "experience and success in performance on contracts 
of size and complexity similar to that being proposed" and the "degree 
to which the [o]fferor has demonstrated success in designing and 
fabricating systems . . . certified by the [NRC] . . . ."  The record 
indicates that TESS evaluated Westinghouse's corporate experience to 
include some NRC certification experience of its subcontractor's key 
personnel.  Even if the protester is correct in this aspect of its 
protest, however, the record shows that Westinghouse provided strong 
support for its own experience in projects of similar size and 
complexity and some relevant independent NRC certification experience 
to still warrant close to the corporate experience score received--at 
best, only a minimal difference in the point scores under this factor 
might have been warranted which, contrary to Newport News's 
contention, simply could not have made its proposal so technically 
superior to Westinghouse's proposal to reasonably question the 
agency's best value determination in light of Newport News's 
substantially higher price.[13]

The protests are denied.

 Robert P. Murphy
 General Counsel

1. The RFP defined the MPC as a "sealed, metallic container 
maintaining multiple [spent nuclear fuel] assemblies in a dry, inert 
environment and overpacked [i.e., in casks] separately and uniquely 
for various system elements of storage, transportation, and geologic 
disposal."

2. For the Phase 2 option, the technical factor was to be most 
important, followed by business and management, and both factors were 
more important than price.  For Phase 3, the total fixed price was to 
be determinative.

3. The RFP, as originally issued, required firm, fixed prices for 
Phase 1 and guaranteed maximum prices for Phases 2 and 3; the 
guaranteed maximum prices requirement was deleted by amendment No. 
0004 to the RFP, issued June 3, 1994, which added the requirement for 
estimated Phase 2 and 3 prices.

4. Since this procurement is for a subcontract awarded by a DOE M&O 
prime contractor acting "by or for" the government, our review is 
limited to whether the procurement conformed to the federal norm 
reflected in the policy objectives of the federal procurement statutes 
and regulations.  See Elma Eng'g, 70 Comp. Gen. 81 (1990),  90-2 CPD  
390; Merrick Eng'g, Inc., B-238706.3, Aug. 16, 1990, 90-2 CPD  
 130.

5. TESS, however, reports that it will acquire unlimited rights to the 
MPC systems designs under its subcontract with Westinghouse and that 
the protesters will have the opportunity to participate in any future 
competitive procurements for the MPC systems.  

6. In response to the protests of a single award, TESS reports that 
insufficient funding was available to support an additional award to 
either Newport News or Combustion.  The record shows that most of the 
offerors' proposed prices exceeded TESS/DOE estimates.  Although the 
protesters believe that TESS could have or should have sought 
additional funding in order to make multiple awards to their firms, we 
see no requirement for the M&O contractor to have done so.  The award, 
as discussed below, was based upon a reasonable determination that 
Westinghouse's proposal offered the best value to the government and 
the single award was permitted under the terms of the RFP.

7. We think the price evaluation terms in the RFP reasonably notified 
the offerors of the agency's discretion in determining the scope of 
the price evaluation to be performed--the RFP did not require a most 
probable cost analysis of the estimated prices for Phases 2 and 3 
(these phases were not awarded under the Phase 1 fixed-price 
subcontract).  Separate fixed-price awards may be made, under the 
option terms of the subcontract and the RFP, for Phases 2 and 3 at a 
future time and will then be subject to TESS' price/cost evaluations.

8. Newport News specifically challenges as unreasonable TESS' 
conclusion that Westinghouse's [DELETED].  As TESS points out, 
however, the Westinghouse proposal expressly included [DELETED].  
Also, lower [DELETED] costs, we believe, could also be reasonably 
related to Westinghouse's [DELETED].  The protester has not shown that 
the price evaluation was unreasonable. 

9. Although we have reviewed all of the protesters' numerous 
contentions regarding the technical evaluation of the awardee's and 
protesters' proposals, we discuss only a representative sample of 
those contentions in this decision.

10. Sierra does not rebut TESS' report that, despite the RFP's 
requirement for detailed supporting pricing data to verify the 
reasonableness of prices, Sierra failed to [DELETED].  Based on this 
record, we find reasonable the agency's conclusions that [DELETED].  
Accordingly, this aspect of Sierra's protest is denied.

11. The protesters also challenge the evaluation of proposals under 
the fabricability factor, the least important technical evaluation 
factor.  Westinghouse again submitted a more detailed technical 
proposal than the other offerors which reasonably rated highly for 
[DELETED].  Newport News's proposal, on the other hand, proposed 
[DELETED] requiring special tooling, but failed to address the process 
in detail, and thus reasonably was assessed as presenting some risk.  
Combustion, despite being told of the specific concerns of the M&O 
contractor regarding a perceived lack of detail in its proposal, 
failed to adequately explain what Combustion concedes was a [DELETED].  
We see no impropriety in the evaluation here.  

12. Combustion also contends that TESS improperly permitted 
Westinghouse to take exception to material RFP requirements, however, 
the RFP permitted certain exceptions where adequately supported by the 
offeror--Combustion has not persuasively shown that any such exception 
rendered Westinghouse's proposal unacceptable in any way.  Combustion 
also contends that TESS engaged in improper post-BAFO discussions with 
Westinghouse regarding the terms of the RFP's indemnification clause 
(to which Westinghouse had taken exception in its BAFO, but which was 
subsequently agreed to by the awardee).  We see no basis to conclude, 
however, that, even if these acts constituted improper post-BAFO 
discussions, Combustion has suffered competitive prejudice as a 
result.  Given the reasonableness of the technical and price 
evaluations, and the fact that Combustion does not contend--nor is it 
likely (since the firm only minimally lowered its price in its 
BAFO)--that it would have lowered its price the more than [DELETED] 
percent necessary to be in line for award if another round of 
discussions was conducted, the record does not show the requisite 
element of prejudice to sustain the protest on this ground.  See 
Maritime Management, Inc., B-260311.2; B-260311.3, July 11, 1995, 95-2 
CPD  11; IT Corp.,  B-258636 et al., Feb. 10, 1995, 95-1 CPD  78.  

To the extent Combustion protests, for the first time in its July 17 
comments in response to the agency's report on the protest, that TESS 
failed to meaningfully discuss with the firm its concerns regarding 
Combustion's proposed management plan, the challenge is untimely since 
it was not filed within 10 working days of Combustion's receipt of the 
agency report which contained TESS' evaluation record.  4 C.F.R.  
21.2(a)(2).

13. The protests raise numerous other issues either not proper for our 
review or for which the protesters fail to provide sufficient support 
to warrant further discussion, e.g., the alleged use by the awardee in 
its proposal of another offeror's proprietary information, allegations 
of organizational conflict of interest on the part of TESS and that 
TESS intends to use funding and the offerors' proprietary information 
for its own financial gain, and allegations that the single award 
determination was based upon NRC direction that multiple awardees' 
applications for certification would be too burdensome for that 
agency.