BNUMBER:  B-270762
DATE:  April 22, 1996
TITLE:  Purification Environmental

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Matter of:Purification Environmental

File:     B-270762

Date:April 22, 1996

C. G. Steiner for the protester.
Bill Creeden and Arnold B. Olender for Waste Abatement Technology, 
L.P., and Khodi G. Irani for MKM Engineers, Inc., intervenors. 
William A. Hough, Esq., Department of the Army, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Where record establishes, and protester does not dispute, that only 
one method of treatment for contaminated groundwater will remove the 
contaminant without creating a hazardous waste, there is nothing 
improper in the issuance of a solicitation that requires contractor to 
use the selected treatment process and to meet state guidelines for 
remediation.

DECISION

Purification Environmental protests the terms of invitation for bids 
(IFB) No. DACA21-96-B-0004, issued by the Corps of Engineers for a 
groundwater treatment system at Redstone Arsenal in Alabama.  
Purification Environmental essentially objects to the agency's 
requiring bidders to meet performance requirements of the statement of 
work while specifying a particular design.

We deny the protest.

In 1989, a valve malfunction in the still of the degreaser at Redstone 
Arsenal resulted in the discharge of trichloroethylene (TCE), a 
degreasing solvent, into the local sewer system.  Efforts to deal with 
resulting contamination were not entirely successful which untimely 
led to the state of Alabama's issuance of a notice of violation that 
required the Army to take action for interim remediation and control 
of the contamination.

The IFB, issued on November 13, 1995, contemplates award of a firm, 
fixed-price contract to the low, responsive, responsible bidder for 
installation and operation of an interim corrective measure (ICM) 
groundwater treatment system.  The project is intended as a 
short-term, temporary remedy responsive to the notice of violation and 
requires operation of the system for 6 months after installation, with 
three 1-year option periods.

The solicitation requires extraction of groundwater and management of 
water and soil containing TCE as a hazardous waste until such time as 
the contractor has treated it to remove the TCE to below detection 
limits.  In this regard, paragraph 1.1.7 of the summary of work, which 
is the specification at issue here, requires the contractor to design, 
provide, install, and operate a water treatment system utilizing 
advanced ultraviolet (UV) oxidation using hydrogen peroxide.  The 
specification prohibits use of any other treatment technology and 
requires the contractor to provide a treatment system meeting "the 
discharge criteria established by the Alabama Department of 
Environmental Management in the National Pollutant Discharge 
Elimination System permit to be obtained by the contractor for this 
project."  The solicitation contains certain minimum requirements for 
components and instrumentation but otherwise leaves detailed design 
responsibility with the contractor.  

The agency initially evaluated several alternative technologies that a 
contractor might use to remove TCE and other chemicals from the 
groundwater.  The chief alternatives considered were air stripping 
(including air stripping with vapor and liquid phase carbon adsorption 
and air stripping with catalytic oxidation in the vapor phase), carbon 
adsorption, and UV oxidation.  The agency determined each method to be 
feasible, although carbon adsorption did not appear cost competitive.  
However, air stripping, which transfers the contamination from 
groundwater to the air, would create an air pollution hazard.  
Similarly, carbon adsorption produced a concentrated waste stream 
which would be costly and difficult to dispose of.  By contrast, UV 
oxidation destroyed TCE, leaving no hazardous waste requiring 
disposal.

The Corps had a contractor prepare a Design Analysis Report (DAR) 
intended as a guide to the technical aspects of the design and 
describing the components of the ICM and the basis for selection of 
those components.  The agency requested the contractor to consider the 
alternative technologies and produce a recommendation.  The contractor 
reached the same conclusion as the agency's own engineer, that UV 
oxidation represented the best technology for removal of the 
contamination.

The DAR notes the presence of certain other volatile organic compounds 
at the site.  The contractor recommended selection of the UV oxidation 
process based on the type and level of contaminants, treatment economy 
and effectiveness, and the process' ability to actually destroy a wide 
range of organics to nondetectable levels, eliminating the generation 
of byproduct wastes or air discharges to handle or treat.  The DAR 
states that the key consideration in the selection of the UV oxidation 
process is the ability to completely destroy numerous types of 
contaminants, leaving a residue consisting solely of carbon dioxide, 
water, and inorganic salts.  In short, the report establishes that use 
of the UV oxidation process would eliminate, as far as possible, the 
need for further creation and handling of hazardous wastes.  The 
elimination of this need had the additional benefits of economy and 
simplification of the permit process.

Purification Environmental asserts that it is improper for an agency 
to require potential bidders to meet specific performance requirements 
where, as here, it requires them to use a specific design.  The 
protester argues that the agency is asking bidders to guarantee that a 
technology selected by the procuring agency--the UV oxidation 
process--is capable of meeting the discharge standards established by 
the Alabama Department of Environmental Management.  The protester 
contends that the agency should eliminate the requirement for a design 
using UV oxidation; relieve potential contractors of the obligation of 
meeting discharge requirements; or assume the liability in the event a 
contractor cannot meet those requirements using the UV oxidation 
process.  

Initially, we note that the protester does not allege and there is no 
evidence that there would be any difficulty in meeting the Alabama 
discharge requirements with the UV oxidation process.  Rather, the key 
issue, as the protester argues, is whether there is anything improper 
in an agency's using a combination of design and performance 
specifications where it determines that such a combination is 
necessary to meet its minimum needs.[1]  The protester identifies no 
statutory or regulatory prohibition against such a combination, and we 
have held that there is nothing improper in requiring a contractor to 
meet performance requirements using a government-dictated design 
requirement, so long as the agency can show that both 
specifications--design and performance--represent its legitimate 
needs.  Southern Technologies Inc., B-239578; B-239578.2, Sept. 6, 
1990, 90-2 CPD  para.  394.

The performance requirements are not at issue in the protest: 
remediation of the site to the Alabama standard is the essential 
purpose of the procurement.  The essence of Purification 
Environmental's protest is that the agency should not specify one 
particular design approach; rather, bidders should be able to use any 
appropriate approach.  The protester states that it would use a new 
Accelerated Chemical Treatment (ACT) process, which the agency did not 
consider either initially or in the DAR.[2]  The only issue is whether 
the agency reasonably determined that use of the UV oxidation process 
represents its minimum needs.  We conclude that it did.

In preparing a solicitation for supplies or services, a contracting 
agency must specify its needs and solicit offers in a manner designed 
to achieve full and open competition and may include restrictive 
provisions or conditions only to the extent necessary to satisfy the 
agency's needs.  ABC HealthCare, B-266043, Jan. 23, 1996, 96-1 CPD  para.  
16.  The determination of the government's minimum needs and the best 
methods for accommodating those needs are generally the responsibility 
of the contracting agency which is most familiar with the conditions 
under which the products will be used.  Purification Envtl., B-259280, 
Mar. 14, 1995, 95-1 CPD  para.  142.  
The Corps has determined that only the UV oxidation process can remove 
the TCE without creating a further need for handling hazardous waste.  
The protester acknowledges that the ACT process requires off-site 
sludge disposal, which may or not test out as hazardous waste.  The 
protester suggests no other process for achieving remediation without 
creating further waste, and the record contains no basis for our 
Office to conclude that the solicitation requirement for use of the UV 
oxidation process exceeds the agency's actual requirements.

With regard to the combination of design and performance requirements, 
as noted above, there is no evidence that the performance requirements 
cannot be met using the specified treatment process.  Even if the 
protester had made such an argument, the mere presence of risk in a 
solicitation does not render the solicitation improper, and it is 
within the agency's discretion to offer for competition a proposed 
contract that poses maximum risks on the contractor and minimum 
burdens on the agency. See National Customer Eng'g, B-254950, Jan. 27, 
1994, 94-1 CPD  para.  44.  Further, where the government does specify a 
certain design, it has long been established that the risk that the 
design is unsuited for the intended purpose is allocated to the 
government, based on a theory of implied warranty.  See United States 
v. Spearin, 248 U.S. 132 (1918); Blake Constr. Co., Inc. v. United 
States, supra; Eng'g Technology Consultants, S. A., Armed Services 
Board of Contract Appeals No. 43,600, June 1, 1992, 92-3 BCA  para.  25,133.

Given our conclusion that the agency reasonably decided that use of 
the UV oxidation method was necessary to meet its minimum needs, we 
see no basis to object to terms of the IFB.

The protest is denied.

Comptroller General
of the United States

1. In practice, there is no strict line that separates performance 
specifications and design specifications; the specifications in 
government contracts frequently combine characteristics of both.  
Blake Constr. Co., Inc. v. United States, 987 F.2d 743 (Fed. Cir. 
1993).  Performance specifications set forth an objective to be 
achieved--here, meeting the Alabama effluent guidelines--and the 
successful bidder is expected to exercise his own ingenuity, selecting 
the means and assuming responsibility for that selection.  Design 
specifications, by contrast, provide a precise, detailed description 
of the materials to be employed--here, use of the UV oxidation 
process--and the manner in which construction work is to be performed; 
a contractor has no discretion to deviate from specifications, but 
must follow them as road map.  Id. 

2. The agency concedes that it did not consider the specific process 
proposed by the protester but describes it as a variation of the 
carbon adsorption process, where the TCE is removed from water by 
passing through a packed bed of activated carbon.  In this process, 
the carbon becomes saturated with respect to TCE and requires 
disposal.