BNUMBER:  B-272896
DATE:  October 30, 1996
TITLE:  Smith Environmental Technologies Corporation

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DOCUMENT FOR PUBLIC RELEASE
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:Smith Environmental Technologies Corporation

File:     B-272896

Date:October 30, 1996

Richard B. Oliver, Esq., McKenna & Cuneo, for the protester.
Carol A. Cowgill, Esq., and Kenneth A. Redden, Esq., Environmental 
Protection Agency, for the agency.
Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably excluded protester's proposal from the competitive 
range on the basis that the protester had no reasonable chance of 
receiving award where the proposal was properly downgraded with 
respect to the firm's ability to meet the solicitation's response time 
requirements, and where proposals in the competitive range were rated 
superior to protester's and protester's proposed price was higher than 
that of two of those proposals. 

DECISION

Smith Environmental Technologies Corporation protests the exclusion of 
its proposal from the competitive range under request for proposals 
(RFP) No. W400735-G5, issued by the Environmental Protection Agency 
(EPA) for hazardous waste and oil cleanup and removal services.  Smith 
argues that the agency unreasonably evaluated its technical proposal.

We deny the protest.

The solicitation anticipates award of a fixed-price time-and-materials 
contract to a firm that will perform specific cleanup and/or removal 
services under individual delivery orders.  The contract will cover 
the Emergency and Rapid Response Services (ERRS) Zone formed by three 
EPA regions.[1]  Among other requirements, the contractor must ensure 
that its personnel and equipment respond to incidents within specified 
time limits.  Relevant to this protest, the contractor must respond to 
incidents in the areas of Salt Lake City, Utah and Phoenix, Arizona 
within 6 hours.  

Award will be made to the firm whose proposal is most advantageous to 
the government, with technical quality more important than price.  
Technical proposals are to be evaluated under four criteria, in 
descending order of importance:  management; sample work plans; key 
personnel; and corporate work experience.  

EPA received six proposals.  The technical evaluation panel (TEP) 
evaluated each proposal and submitted a report to the contracting 
officer.[2]  The proposals of two firms were determined to be 
technically superior, receiving overall ratings of outstanding and 
"outstanding minus," respectively, and the proposal of a third firm 
was rated acceptable overall.  Smith's proposal was rated "marginal 
minus" overall.  Specifically, under the most important evaluation 
factor, management, Smith's proposal received an unacceptable rating 
due to its unacceptable rating under one of the subfactors, management 
approach.[3]  The firm's proposal received this rating principally 
because the evaluators believed that it was highly improbable that 
Smith could meet the 6-hour response time requirement to Salt Lake 
City and Phoenix, leaving the government, public health, and the 
environment vulnerable.  Smith's proposal was rated unacceptable under 
one of the sample work plans for this same reason.[4]    

In her competitive range determination, the contracting officer noted 
that the basis for the TEP's overall determination with respect to 
Smith's proposal was that, although the firm had an acceptable rating 
in all of the other factors, if it could not get to the site in a 
timely manner with the required personnel and equipment, nothing else 
would matter materially to the cleanup of the site.  The contracting 
officer also stated that even if Smith had received an acceptable 
rating overall, when she considered the technical superiority of two 
of the other proposals and the fact that Smith's proposal was rated 
third with respect to price Smith still would have no reasonable 
chance to receive the award. Accordingly, the contracting officer 
eliminated Smith's proposal from the competitive range; this protest 
followed.  Smith challenges the agency's evaluation with respect to 
its ability to meet the 6-hour response time requirement.

In reviewing competitive range determinations, our Office will not 
independently reevaluate proposals; rather, we will examine the record 
to ensure that the evaluation is reasonable and in accordance with the 
solicitation's evaluation criteria.  Mobility Sys. and Equip. Co., 
B-261072, Aug. 8, 1995, 95-2 CPD  para.  66.  A protester's disagreement 
with the agency's technical judgment does not show that such judgment 
was unreasonable.  Id.; Mictronics, Inc., B-228404, Feb. 23, 1988, 
88-1 CPD  para.  185.  Our review of the record confirms that the evaluation 
here was reasonable.

Smith proposed to respond to actions in the Phoenix area from its 
Torrance, California offices some 350 miles distant.  The firm stated 
that it would respond primarily by ground transportation, but would 
use commercial and pre-identified charter aircraft services as needed.  

The evaluators concluded that Smith's statement that its response team 
would be on the road to a site within 1 hour of notification left 5 
hours for the firm to arrive at the site.  Turning to Smith's 
principal form of transportation, the automobile, the evaluators 
calculated that 350 miles divided by 5 hours would require Smith's 
response team to drive at an average speed of 70 miles per hour in 
order to reach Phoenix in the required response time.  The evaluators 
believed that this was too "tight" and imprudent, considering highway 
safety.  While Smith argues that the agency should have calculated the 
response time using an average speed of 65 miles per hour, even using 
that figure Smith would take longer than 6 hours to reach Phoenix.[5]

As for Smith's backup forms of transportation, commercial and charter 
aircraft, the evaluators believed that it was possible to meet the 
6-hour response requirement by such means, but risky.  As indicated in 
its report on the protest, the agency was concerned that inclement 
weather or a high volume of airline traffic--for example, at the end 
of a workweek--could make it impossible for both commercial and 
chartered aircraft to either take off or land as scheduled.  This was 
a critical consideration since environmental spills and accidents in 
the past have occurred quite frequently because of bad weather and/or 
at the end of the workweek.  While Smith argues that crowding should 
not be a consideration because the Torrance airport handles only 
charter aircraft flights and there are multiple landing sites in 
Phoenix, we think the agency's concerns are reasonable, considering 
that all flights are subject to the air traffic control system's 
ability to manage the flow of traffic through limited airspace.  As 
for Smith's statement that the Denver charter aircraft companies which 
it plans to use to fly to Salt Lake City are very experienced in 
flying in difficult weather conditions, we do not believe that such 
experience precludes delay.  In any event, as stated above, the 
evaluators agreed with Smith that it is possible for the firm to meet 
the 6-hour response requirement, but believed that the firm could not 
adequately and consistently do so.  We think this conclusion was 
reasonable.    

Smith asserts that its rating under the management factor should have 
been marginal, and not unacceptable, based upon the weighting of the 
management subfactors.  After the senior contracting officer reviewed 
the competitive range determination, she also concluded that a 
marginal rating under that factor would be more appropriate.  However, 
she stated that even with this adjustment, and assuming that Smith's 
proposal had been rated acceptable overall,[6] two other firms' 
proposals were rated outstanding and offered better prices than Smith.  
Thus, while Smith might be able to improve the quality of its 
proposal, the firm could not improve to a level of outstanding, and 
did not stand a reasonable chance of receiving award.  

In establishing a competitive range, agencies are required to include 
only those firms whose proposals are determined to have a reasonable 
chance of receiving award.  Loral Sys. Co., B-270755, Apr. 17, 1996, 
96-1 CPD  para.  241.  Our Office will not disturb a determination to 
exclude a proposal from the competitive range unless the record shows 
that the determination was unreasonable.  Interactive Communication 
Technology, Inc., B-271051, May 30, 1996, 96-1 CPD  para.  260.  Even a 
proposal that is technically acceptable, or good, need not be included 
in the competitive range when, relative to other acceptable offers, it 
is determined to have no reasonable chance of being selected for 
award.  Id.; Pedus Bldg. Servs., Inc., B-257271.3 et al., Mar. 8, 
1995, 95-1 CPD  para.  135.  Here, given that there were two technically 
superior, lower-priced proposals, the agency reasonably concluded that 
even with an acceptable rating overall, the protester's proposal had 
no reasonable chance of being selected for award.  Accordingly, we see 
no basis to conclude that the agency improperly excluded Smith's 
proposal from the competitive range.

The protest is denied.

Comptroller General
of the United States

1. Region VI includes Arkansas, Louisiana, New Mexico, Oklahoma, and 
Texas; Region VIII includes Colorado, Montana, North Dakota, South 
Dakota, Utah, and Wyoming; and Region IX includes Arizona, California, 
Hawaii, Nevada, American Samoa, the Commonwealth of the Marianas, and 
Guam.  The contractor may also be tasked to provide response services 
outside of the ERRS Zone and the United States.

2. One firm's offer was immediately rejected because it failed to 
submit a technical proposal.  Another firm's offer was excluded from 
the competitive range along with Smith's, and is not at issue here.

3. The management factor consisted of six subfactors:  management 
approach; cost control; subcontract management; equipment; regulatory 
compliance assurance; and quality assurance.  The first two factors 
were equally important and more important than the others, which were 
equally important.

4. The proposal was rated "acceptable minus" overall under the sample 
work plans factor, and acceptable under the remaining two factors, key 
personnel and corporate work experience.

5. 350 miles divided by 65 comes out to 5.38 hours.  When the hour of 
preparation time is factored in, Smith would exceed the 6-hour 
response time requirement by more than half an hour.

6. As noted above, Smith's proposal received ratings of "acceptable 
minus" and acceptable on the other three technical evaluation factors.