BNUMBER:  B-272139
DATE:  September 6, 1996
TITLE:  Laidlaw Environmental Services

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Matter of:Laidlaw Environmental Services

File:     B-272139

Date:September 6, 1996

William E. Hughes III, Esq., Whyte, Hirschboeck, Dudek, S.C., for the 
protester.
Joel E. Gregory for Day & Zimmermann, Inc., Darl J. Heffelbower for 
Mason and Hanger Corporation, and Don Carrier for TPL, Inc., 
intervenors.
Jeffrey I. Kessler, Esq., and Sandra L. Biermann, Esq., Department of 
the Army, for the agency.
Linda C. Glass, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency's prohibition of the use of open burn/open detonation 
technologies in the demilitarization of improved conventional 
munitions is unobjectionable where it reflects legitimate 
environmental concerns expressed by congressional committees.

DECISION

Laidlaw Environmental Services protests the terms of invitation for 
bids (IFB) 
No. DAAA09-96-B-0033, issued by the United States Army Industrial 
Operations Command (IOC) for the demilitarization of 8-inch improved 
conventional munitions.  The protester contends that the 
solicitation's prohibition against the use of open burn/open 
detonation (OB/OD) technologies in the demilitarization of the 
munitions is unduly restrictive of competition and favors original 
manufacturers of the munitions.[1]

We deny the protest.

The IFB, issued on April 10, 1996, as a two-step sealed bid 
procurement, with an amended May 24 closing date for receipt of 
technical proposals, prohibited the use of OB/OD technologies to 
demilitarize any component or end item contained in the solicitation.  
The statement of work (SOW) required offerors to provide all the 
necessary material, equipment, and personnel to perform conventional 
ammunition demilitarization by incineration and/or resource recovery, 
component reutilization and recycling.[2]  The agency received six 
technical proposals by the closing date and is currently evaluating 
them.

Laidlaw contends that the restriction against the use of the OB/OD 
method improperly excludes it from participating in the procurement.  
Laidlaw maintains that the OB/OD method it uses is environmentally 
sound and is performed by Laidlaw within the restrictions set forth in 
its air permit.  Laidlaw also maintains that since it complies with 
its air permit, Laidlaw's use of OB/OD does not pose any greater risk 
than incineration, a method of demilitarization allowed by the 
solicitation.

Determination of the agency's minimum needs and the best method of 
accommodating those needs are primarily matters within the agency's 
discretion.  Glock, Inc., B-236614, Dec. 26, 1989, 89-2 CPD  para.  593.  
Where, as here, a specification is challenged as unduly restrictive of 
competition, we will review the record to determine whether the 
restriction imposed is reasonably related to the agency's minimum 
needs.  Tek Contracting, Inc., B-245454, Jan. 6, 1992, 92-1 CPD  para.  28.

The agency reports that OB/OD has been used primarily for destruction 
of those types of ammunition which could not be successfully 
demilitarized via resource recovery or controlled incineration 
methods.  According to the agency, OB/OD detonations are destructive 
processes which have given rise to environmental and health issues 
concerning air pollution, soil and water contamination, and noise.  
Consequently, OB/OD is no longer a preferred methodology; it is used 
only when a determination is made, based on finances and technical 
capability, that no other method of demilitarization is available.  
The agency states that there are some munitions for which alternative 
demilitarization technologies are not yet available. 

The current IOC/Army policy is not to have OB/OD conducted by private 
contractors.  When OB/OD is necessary, IOC does it in-house. The 
agency reports that IOC has performed all required OB/OD 
demilitarization in-house since 1977.  According to the agency, when 
IOC contracts out for demilitarization of conventional munitions, use 
of OB/OD technologies is prohibited in order to foster the development 
of other, more environmentally friendly, means of demilitarization.

The Army states that while there are no federal statutes banning the 
use of OB/OD, it is attempting to move in the direction in which 
Congress, through its committees, has been urging the Army to proceed, 
namely the development of alternate demilitarization technologies.  In 
this regard, in May 1993 the Chairman of the Senate Appropriations 
Subcommittee on Defense stated in a letter to the Army that "[i]t is 
the intention of the Committees that OB/OD be phased-out as soon as 
possible and that, wherever possible, conventional ammunition slated 
for disposal should be recycled."  Subsequently, the Senate Armed 
Services Committee, in its report accompanying the National Defense 
Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, 108 Stat. 
2663, directed the Army to accelerate, where possible, the award of 
demilitarization contracts that make use of environmentally sound 
recycling and reuse technology.  In addition, the committee directed 
the Army to work closely with the other military services to identify 
recycling and reuse technologies, or to use contained destruction 
where appropriate.  According to the committee, this would allow the 
Army and other military services to stop OB/OD as soon as possible.  
S. Rep. No. 282, 103rd Cong. 2nd Sess. (1995).

Similarly, the House Appropriations Committee, in connection with the 
Defense Appropriations Bill for Fiscal Year 1996, Pub. L. No. 104-106, 
110 Stat. 186 (1996),   expressed concerns about the Army's continuing 
practice of demilitarizing ammunition by OB/OD.  H.R. Rep. No. 208, 
104th Cong. 1st Sess. (1996).  The committee stated that it believed 
other demilitarization methods may prove to be economically and 
environmentally sound alternatives, including technology which 
recycles and reuses waste products from the demilitarization of the 
ammunition.  The Army was directed to submit by March 1, 1996, an 
analysis of the feasibility, benefits, costs, and savings of the 
recycle and reuse technologies compared to OB/OD.

Given the substantial congressional concerns about the adverse 
environmental impact of the OB/OD technology and the desire to develop 
more cost effective and environmentally friendly methods for 
demilitarization, concerns that the protester ignores, we cannot say 
that the agency was unreasonable in viewing its minimum needs as 
precluding the use of OB/OD under this procurement.  The fact that 
there is no statute banning OB/OD does not prohibit an agency from 
making sound policy determinations that are consistent with 
congressional concerns about the environment.  See Trilectron Indus., 
Inc., B-248475, Aug. 27, 1992, 92-2 CPD  para.  130; American Management 
Enters., Inc., B-238134, Feb. 26, 1990, 90-1 CPD 234.

The protester contends that the exclusion of the OB/OD technology 
because of environmental risks is improper here because the 
solicitation allows for the use of incineration without consideration 
of environmental concerns about that methodology.  In support of this 
position, the protester cites our decision Bardex Corp., B-252208, 
June 14, 1993, 93-1 CPD  para.  461, in which we held that while agencies 
properly may adopt otherwise restrictive specifications to implement 
legitimate environmental considerations, they may not use that policy 
of avoiding environmental risks to exclude one approach and at the 
same time ignore that policy in accepting another approach.  The 
protester's reliance on that decision is misplaced.  Here, in 
restricting the use of the OB/OD technology, the agency is reasonably 
acting in response to repeated congressional concerns about the 
environmental risks posed by and specific to the OB/OD technology.  
The protester has not identified any similar concerns that  have been 
raised about incineration.

We note, finally, that the protester does not argue that the 
prohibition on the use of the OB/OD technology precludes it from 
participating in this procurement.  In fact, an affidavit submitted by 
a Laidlaw official clearly indicates that Laidlaw also uses an 
incineration method that recycles by deactivating the explosive and 
recycling metal.[3]  

In short, the protester has not shown that the agency was unreasonable 
in prohibiting the use of the OB/OD technology.  Therefore, the 
protest is denied.

Comptroller General 
of the United States 

1. OB/OD is a process in which burning is typically done in pans set 
out in an open area; items for detonation are sometimes placed in pits 
and covered with soil in an attempt to limit sound wave progression.  

2. Resource recovery and recycling (R3) involves a broad spectrum of 
technologies.  The agency reports that the typical R3 approach for the 
items listed in the IFB would be the following:  (a) unpalletize 
projectiles; (b) remove lifting plug and base plate, scrap lifting 
plug and base plate; (c) remove sub-munitions and scrap projectile 
body; (d) incinerate sub-munitions or R3; (e) remove fuze and 
incinerate; (f) remove explosive material and incinerate or recycle; 
and (g) recycle sub-munition body.  In accordance with the IFB, the 
contractor takes possession of the recovered material following 
demilitarization.

3. As to the protester's allegation that the restriction favors 
original manufacturers, the protester has not provided any 
substantiation for this allegation, and the record reflects that the 
agency has received six technical proposals in response to the 
solicitation, none of which is from an original manufacturer of this 
munition.  Moreover, the agency's preliminary review indicates that 
all six proposals will be found technically acceptable.