BNUMBER:  B-274644; B-274644.2; B-274644.3
DATE:  December 23, 1996
TITLE:  OHM Remediation Services 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:OHM Remediation Services Corporation

File:     B-274644; B-274644.2; B-274644.3

Date:December 23, 1996

Joseph G. Billings, Esq., and Lawrence P. Block, Esq., Riley and 
Artabane, for the protester.
Shlomo D. Katz, Esq., and Kenneth B. Weckstein, Esq., Epstein, Becker 
& Green, P.C., and Ronald N. Stewart, for ICF Kaiser Engineers, Inc., 
an intervenor.
Clark J. Hulce, Esq., and Carl Korman, Esq., Corps of Engineers, 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

1.  Where record shows that evaluation of protester's proposal was 
reasonable and consistent with the criteria established by the 
solicitation, the protester's mere disagreement with the evaluation 
provides no basis for sustaining a protest.

2.  Where evaluation standards, used in evaluation of proposals for 
environmental restoration contract, listed criteria for assigning the 
appropriate adjectival rating under each evaluation subfactor and 
subsubfactor, rating of the awardee's proposal as "excellent" under 
five subsubfactors was not unreasonable simply because proposal failed 
to meet one listed criterion for an "excellent" rating, where there is 
no allegation or evidence that the proposal did not meet the remaining 
criteria for an "excellent" rating.

3.  Where protester waited a month after receipt of agency report to 
provide detailed basis for protest of its own evaluation, the protest 
is untimely despite an earlier protest that broadly challenged the 
evaluation as inconsistent with the protester's superior experience in 
similar contracts; such detailed grounds constitute new and 
independent allegations which must independently satisfy timeliness 
requirements.

4.  Protest that agency improperly failed to conduct a price/technical 
tradeoff is denied where, in selecting a higher-rated offeror, 
selection officials reasonably determined that offerors were 
essentially equal in price.

DECISION

OHM Remediation Services Corporation protests the award of a contract 
to ICF Kaiser Engineers, Inc. under request for proposals (RFP) No. 
DACW05-96-R-0011, issued by the Corps of Engineers for environmental 
remediation services.  OHM contends that the evaluations of its 
proposal and that of ICF Kaiser were unreasonable and inconsistent 
with the RFP and that the selection decision therefore was flawed.

We deny the protests.

BACKGROUND

On May 20, 1996, the agency issued the RFP for an indefinite delivery, 
indefinite quantity contract for a 4-year base period with two 3-year 
option periods to remedy hazardous toxic radioactive waste (HTRW) 
sites within the geographic boundaries of the South Pacific Division 
of the Corps of Engineers.  The sites include some currently owned or 
controlled by the government, some formerly used sites where an agency 
of the government is identified as a generator or potentially 
responsible party, and some where the Corps is authorized to respond.

The contract is one of a contemplated series of total environmental 
restoration contracts (TERC); the instant effort is known as TERC II.  
The contracts represent an effort to provide continuity of personnel 
and institutional knowledge through the use of a single contractor for 
all phases of HTRW remediation projects.  Under the TERCs, the Corps 
issues task orders covering most aspects of the investigation and 
definition of HTRW sites, as well as the development of plans and 
operations for site remediation.  The RFP requires the successful 
offeror to ensure coordination and compliance with a variety of local, 
state, and federal agencies.  It requires employment of a wide 
spectrum of specialists, including geologists, hygienists, physicians, 
regulatory experts, and specialists in public relations.  The effort 
therefore includes performance of a wide variety of as-yet undefined 
tasks involving a multitude of specialties, over a wide geographical 
area.

The solicitation here advised offerors that the Corps would select a 
contractor through formal source selection procedures, using a source 
selection organization consisting of a source selection evaluation 
board (SSEB), with separate technical and cost evaluation teams, a 
source selection advisory council (SSAC), and a source selection 
authority (SSA).  The RFP provided that the SSEB would perform the 
initial evaluation and forward the results to the SSAC.  The SSAC 
would rank the proposals and recommend to the SSA the offer it 
considered most advantageous to the government, price and other 
factors considered.

The technical evaluation factors were as follows:  factor 1: 
Business/Management/ Technical Approach; factor 2: Past Performance 
and Quality, Experience, Organization, and Personnel; factor 3: 
Operational Management Plan; factor 4: Acquisition Management Plan; 
and factor 6: Sample Project.  Each factor contained several 
subfactors; most subfactors contained subsubfactors described in 
section L of the RFP, the instructions for preparing proposals.  The 
RFP provided that factors 1 and 2 were of greater but equal 
importance, factor 3 was less important, and factor 6 was less 
important than factor 3.  Factor 4 was the least important technical 
factor.

Factors 5 and 7 were price factors, and the RFP provided that the 
agency would subjectively evaluate price rather than score it.  The 
chief consideration in factor 5, the price proposal, was subfactor 1, 
overall price of doing business; factor 7 involved a price realism and 
reasonableness evaluation of the offeror's price proposal for the 
sample project, the technical portion of which evaluators would 
consider under factor 6.  The RFP did not indicate that either factor 
5 or factor 7 would carry more weight than the other.

On July 11, 1996, the agency received six offers in response to the 
RFP, which it referred to the SSEB for evaluation.  The SSEB had 
adopted standards for proposals to meet in order to earn scores of 
"satisfactory," "very good," and "excellent," the ratings relevant to 
this protest.  A rating of "satisfactory"--that is, a proposal that 
met the adopted standards for a "satisfactory" proposal--would result 
in a raw score in the range of 41-60, with a rating of "very good" 
resulting in 61-80 points and a rating of "excellent" earning 81-100 
points.  Further, evaluators would provide an assessment of each 
proposal's standing within those ranges--i.e., "high 'satisfactory,'" 
as opposed to "low 'satisfactory'" or simply "satisfactory."  After 
individual scoring, the SSEB compiled the scores into a consensus 
evaluation under this plan for each factor, subfactor, and 
subsubfactor for each offeror with a list of advantages and 
disadvantages supporting the consensus raw score.

The SSEB presented its report to the SSAC on August 19.  The SSEB 
ranked the proposals of ICF Kaiser and OHM as first and second in 
technical merit.  ICF Kaiser's raw technical score of 4420 points was 
100 points higher than OHM's raw technical score of 4320 points.  OHM 
offered a slightly lower price of doing business--an overall measure 
of price--but the evaluators found this price uncertain for all 
offerors and rated both OHM's and ICF Kaiser's proposals "acceptable" 
for factor 5.  ICF Kaiser's price for the sample project, factor 7, 
was lower and the evaluators considered it more realistic and 
reasonable.  Overall, ICF Kaiser received the highest technical score 
of any offeror under three of the four most heavily weighted 
evaluation factors--factors 1 (Business/ Management/Technical 
Approach), 3 (Operational Management Plan), and 6 (Sample Project), 
while OHM received the highest technical score of any offeror under 
factor 4 (Acquisition Management Plan), the least important technical 
factor, and a higher raw score than ICF Kaiser for factor 2 (Past 
Performance and Quality, Experience, Organization, and Personnel).  
Based on ICF Kaiser's apparent superiority under the more important 
evaluation factors and its more realistic price, the SSEB recommended 
selection of ICF Kaiser's proposal to the SSAC.

The SSAC reviewed the report and developed weighting factors for the 
raw technical score.  There was no change in relative technical 
ranking; ICF Kaiser's score was recomputed as 89.10 points and OHM's 
as 86.66 points.  In the final analysis, none of the other four 
offerors was competitive with the overall excellence, technical and 
price of ICF Kaiser and OHM.  Between these two, the SSAC concluded 
that ICF Kaiser had provided a better proposal but that OHM had 
offered a slightly lower overall cost of doing business.  The SSAC 
found a slight but marked advantage for ICF Kaiser, both in its higher 
technical score and the lower cost of its sample project.  The SSAC 
therefore recommended award to ICF Kaiser.  After reviewing the basis 
for this recommendation, the SSA followed it, selecting ICF Kaiser for 
the award made on September 6.  The Corps provided a debriefing to OHM 
on September 10, and the first of these three protests followed.

In these protests, the protester raises multiple issues related to the 
evaluation, five related to the evaluation of the awardee's proposal 
and 14 related to its own evaluation.  Except in three instances, 
where the protester failed to provide a basis for protesting its 
evaluation, the agency responded to each argument, justifying its 
actions.  We have reviewed the entire record, considered all of the 
arguments, and find no basis for sustaining the protest. We will 
discuss only the more significant arguments in this decision.  

ICF KAISER EVALUATION

OHM protests the evaluation of ICF Kaiser's proposal under five 
subsubfactors.  Factor 1, Business/Management/Technical Approach, 
included five subfactors.  The third of these subfactors, subfactor 
1.C, was Capabilities.  The subfactor Capabilities included six 
subsubfactors.  OHM contends that the evaluators gave ICF Kaiser's 
proposal too high a rating under four of these six subsubfactors.  OHM 
makes the same contention regarding ICF Kaiser's rating under 
subfactor 2.B, Company Past Performance/Quality and Experience, 
Completed HTRW Contracts, of factor 2, Past Performance and Quality, 
Experience, Organization, and Personnel.  Subfactor 2.B contained no 
subsubfactors.

What is at issue here is whether ICF Kaiser's proposal met all of the 
criteria in the evaluation standard applicable to the rating that the 
SSEB awarded.  In general, the record shows that the evaluation 
standards contained several criteria that a proposal had to meet to 
earn a rating of "excellent."  In each case, while the evaluators 
noted one or more disadvantages to the awardee's proposal, they rated 
its proposal as "excellent."  It is generally the agency's position 
that, despite some disadvantages and the failure to meet one of the 
criteria, the proposal met the other criteria for an "excellent" 
rating and that the SSEB therefore properly gave that rating to the 
proposal under the contested subsubfactors and subfactor. 

The evaluation of technical proposals is a matter within the 
discretion of the contracting agency because the agency is responsible 
for defining its needs and the best method of accommodating them.  
McDonnell Douglas Corp., B-259694.2; B-259694.3, June 16, 1995, 95-2 
CPD  para.  51.  In reviewing an agency's evaluation, we will not reevaluate 
technical proposals, but will examine the record to determine whether 
the agency's judgment was reasonable and consistent with the stated 
evaluation criteria and applicable statutes and regulations.  ESCO, 
Inc., 66 Comp. Gen. 404 (1987), 87-1 CPD  para.  450.  An offeror's mere 
disagreement with the agency's judgment does not show that the 
judgment was unreasonable.  McDonnell Douglas Corp., supra.  Here, we 
agree that the Corps reasonably gave the ICF Kaiser proposal a rating 
of "excellent," in areas where the proposal met most of the criteria 
for an "excellent" rating.  A discussion of the evaluation under two 
subsubfactors of the Capabilities subfactor follows.

The second subsubfactor under the Capabilities subfactor was Depth and 
Size of Organization, for which both OHM's and ICF Kaiser's proposals 
received an "excellent" rating, [REDACTED] of 100 available points.  
The evaluation standard for "excellent" reads as follows:

     [REDACTED]

The consensus rating listed four advantages to the awardee's proposal, 
including a [REDACTED], but noted that the proposal offered limited 
resources in [REDACTED] and that some offices did not have an 
[REDACTED] of personnel.  Specifically, the proposal offered some 
[REDACTED].  For this reason, OHM argues, ICF Kaiser's proposal was no 
better than "very good," warranting a score in the 70-80 point range.

As indicated above, [REDACTED] was one of the criteria for assigning 
an "excellent" rating to a proposal.  However, it was only one of four 
criteria, and the agency asserts that the awardee's proposal met all 
other criteria for an "excellent" rating.  Specifically, while its 
individual offices did not all offer [REDACTED], ICF Kaiser did 
propose [REDACTED] offices and suboffices located throughout 
[REDACTED], staffed with a mixture of [REDACTED]; the evaluators 
considered the total number of personnel--[REDACTED] in 
all--[REDACTED].  According to the consensus evaluation summary, the 
evaluators also considered OHM's staffing [REDACTED], but awarded the 
protester's proposal the same "excellent" rating.  OHM offered 
[REDACTED] offices located in two cities and not as widely dispersed 
as ICF Kaiser's and staffed entirely by subcontractor staff, 
[REDACTED] in all.  In neither case, however, did the evaluators 
consider the disadvantages enough to offset the other advantages of 
the proposals, which earned both of them a rating of "excellent."  
Given that there is no allegation that ICF Kaiser did not meet the 
other criteria for an "excellent" rating, we conclude that the 
evaluation under this subsubfactor was reasonable.

For an "excellent" rating under the third subsubfactor, General 
Personnel, the evaluation standard was as follows:

     [REDACTED]

Under this subsubfactor, the evaluators rated OHM's proposal 
"excellent," assigning a score of [REDACTED] points, while rating ICF 
Kaiser's proposal in the low "excellent" range, with [REDACTED] 
points.  As the evaluators noted, the awardee failed to address all 
personnel listed in section C.4 of the statement of work, and OHM 
argues that the proposal thus should not have received an "excellent" 
rating.

The agency concedes that ICF Kaiser failed to key its proposed 
personnel to section C.4 of the statement of work.  Nevertheless, the 
agency states that the proposal did demonstrate that the awardee's 
organization included personnel with the required disciplines.  The 
awardee offered a widely based personnel pool, which, all in all, 
indicated the ability to staff rush work without significantly 
depleting resources available for work elsewhere.  Despite the failure 
to [REDACTED] to the disciplines listed in section C.4 of the 
statement of work, the evaluators concluded that the awardee's 
proposal met the standard of an [REDACTED].  Given their conclusion 
that the proposal demonstrated excellence in the other of the two 
areas being measured by this subsubfactor--[REDACTED]--we see no basis 
to conclude that assigning an "excellent" rating to the proposal was 
unreasonable.

OHM EVALUATION

Initial Protest

The Corps provided OHM with a debriefing on September 10, 4 days after 
the award.  What the agency told the protester at the debriefing 
formed the basis for OHM's initial protest challenging the evaluation 
of its own proposal under five subfactors.  The Corps responded to the 
points raised, and the protester in responding to the agency report 
did not address two of the protested subfactors, effectively 
abandoning those issues.  Datum Timing, Div. of Datum Inc., B-254493, 
Dec. 17, 1993, 93-2 CPD  para.  328.  As to the remaining issues, we 
conclude that the evaluation was reasonable.  We discuss two of the 
issues below.

OHM raises two issues affecting the evaluation of its proposal under 
the first subsubfactor under subfactor 1.B, Teaming Arrangements, of 
factor 1.  First, the agency advised the protester at the debriefing 
that it considered the extent of subcontracting with large business a 
disadvantage in OHM's proposal.  The protester disputes the agency's 
understanding that, with the exception of one contract, all work was 
going to large business; OHM states that it in fact proposed two major 
subcontracts with small businesses.  The record shows that the 
evaluators simply did not consider the second subcontract major 
because it was for public relations work and did not constitute a 
significant part of the work effort.  We see nothing unreasonable 
about this, and OHM's disagreement with the assessment provides no 
basis for sustaining its protest.  McDonnell Douglas Corp., supra.

Second, OHM contends that its rating for this subsubfactor of high 
"satisfactory"--[REDACTED] points--was inconsistent with the high 
score that the protester received for submitting the same exhibit in 
volume IV of its proposal, to be evaluated under factor 4.  We see no 
merit to this contention.  The subsubfactor essentially called for 
evaluation of a matrix provided by the offeror setting out its teaming 
arrangements.  Volume IV of OHM's proposal simply identified the total 
costs set aside for small and small disadvantaged businesses; by 
contrast, the purpose of the matrix, to be submitted in proposal 
Volume I and evaluated under factor 1, was to provide information on 
the exact nature of the work so set aside.  The identical exhibits 
reasonably received different scores because, in the one case, the 
exhibit provided what the evaluators needed, and in the other, it did 
not.  We see no basis for considering the evaluation under this 
subsubfactor either unreasonable or inconsistent with the 
solicitation.

Supplemental Protests

On October 24, 10 days after receiving the agency report on its 
initial protest, OHM filed a second protest alleging that under 14 
listed evaluation subfactors and subsubfactors, the Corps had either 
given ICF Kaiser unreasonably high scores or given OHM unreasonably 
low scores.  Its arguments were based on its allegedly superior 
experience with HTRW work.  However, as the agency pointed out in 
response, OHM did not break out the protested subfactors or 
subsubfactors, or compare the information in its proposal[1] to the 
evaluation standards or the evaluation results.  Subsequently, on 
November 7 (within 10 days of receiving a copy of the awardee's 
proposal), OHM identified five of these 14 issues as relating to 
evaluation of the ICF Kaiser proposal and provided detailed grounds of 
protest, which our Office treated as a third protest.[2]

Apart from the five issues preserved by the filing of the third 
protest, we dismiss the remainder of OHM's second protest because the 
protester's subsequent submissions simply have not addressed, in any 
meaningful way, its basic assertion in the second protest that the 
relative experience of OHM and ICF Kaiser was improperly evaluated.  
See Birch & Davis Assocs., Inc.--Protest and Request for Recon., 
B-246120.3; B-246120.4, Apr. 20, 1992, 92-1 CPD  para.  372 (submission that 
does not refer to the original protest issues or the agency report on 
those issues does not constitute comments).[3]  To the extent that OHM 
raises specific objections to the evaluation of its own proposal in 
the areas referenced in its second protest, it did not raise such 
objections until it filed its November 12 comments on the second 
agency report.[4]  There is no direct link between the general 
allegation in the second protest--focusing on the evaluation of the 
offerors' experience--and the issues discussed in the comments on the 
agency report responding to that protest.  In fact, of the 14 areas 
listed in the second protest, OHM only mentioned one subfactor under 
factor 2, Past Performance and Quality, Experience, Organization, and 
Personnel, the only evaluation factor specifically related to past 
performance.  Similarly, while OHM did assert that the Corps's 
evaluation was improper under subsubfactor 1, Health and Safety 
Program, of subfactor 2.C, Compliance with HTRW Health and Safety 
Requirements, OHM did not state whether the evaluation was improper 
for ICF Kaiser's proposal, its own proposal, or both, until its 
November 12 comments on the second agency report.  At that time, OHM 
first identified the issue it was raising, that the Corps improperly 
downgraded its proposal for not [REDACTED].[5]

Clearly, the issues raised in the November 12 comments, which for the 
first time discuss the evaluation results in relation to the contents 
of OHM's proposal, constitute new and independent allegations.  Such 
allegations must independently satisfy our timeliness requirements; 
thus, any further challenge to the evaluation of OHM's proposal, 
beyond those raised in the initial protest, should have been raised no 
more than 10 days after receipt of the agency report, which provided 
the documents that formed the basis of protest.  Westinghouse Elec. 
Corp., B-250486, Feb. 4, 1993, 93-1 CPD  para.  229.  Since they were not, 
the issues are untimely.  Our regulations do not contemplate the 
unwarranted piecemeal presentation of protest issues.  Id.

In any event, although we consider these issues to be untimely, we 
have reviewed the evaluation in those areas and find no merit to the 
allegations.  For example, under subfactor 3.C, it appears that while 
OHM is correct in arguing that only the awardee had to submit a 
complete health and safety program, the RFP required all offerors to 
submit a table of contents for the plan, which should have included 
the elements required by Appendix B to the statement of work, above.  
OHM was downgraded for not mentioning these elements, not for not 
providing them.  Similarly, the evaluators considered limitations on 
the authority of OHM's project manager a disadvantage.  OHM argues 
that it has successfully performed contracts with the organizational 
approach used, but its chief argument is that the difference in 
authority given to ICF Kaiser's project manager in the awardee's 
proposal is "illusory."  Thus, OHM argues that the evaluators should 
either award OHM the same advantage even though it is not offered in 
the proposal, or charge ICF Kaiser with the same disadvantage, even 
though it does not exist in that proposal.  This position is 
unreasonable.  See Compliance Corp., supra.  

Finally, in its initial protest, OHM asserted that the Corps 
improperly failed to perform a price/technical tradeoff.  The record 
here shows that it was essentially unnecessary to make one because 
selection officials reasonably determined that, as between the two 
price factors specified in the RFP, OHM had the lower overall price of 
doing business, while ICF Kaiser submitted a lower price for the 
sample project.  OHM essentially argues that since the RFP stated that 
the evaluation factors for factor 5 were listed in descending order of 
importance, it was reasonable to assume that all subsequent price 
factors, including those in factor 7 were of less importance than the 
overall price of doing business, the first subfactor of factor 5 and 
the one in which the agency considered the protester's proposal to 
offer an advantage.  This argument has no merit.  First, there is 
nothing in the solicitation stating that factor 7 is of less 
importance than factor 5 and no reason to presume that, if they were 
scored, the two price factors were to be other than equal in weight.  
Further, the RFP specifically stated that the two factors would not be 
scored, but that the agency would evaluate price subjectively.   The 
SSAC's recommendation and the SSA's determination demonstrate that, 
despite the excellence of OHM's proposal, the Corps simply considered 
ICF Kaiser's proposal to be better, in addition to offering greater 
price reasonableness and realism, to an extent that outweighed any 
advantage that OHM might have had in the overall price of doing 
business.  The record supports the agency's consideration of price and 
technical factors in the selection decision as reasonable and 
consistent with the criteria listed in the RFP.  

The protests are denied.

Comptroller General
of the United States

1. Our Office had not yet released the awardee's proposal to the 
protester.

2. The issues raised in this third protest are those discussed in the 
preceding section of this decision.

3. To the extent that OHM argues that the Corps did not meet statutory 
and regulatory requirements to conduct past performance evaluations 
when making contract award determinations, its allegations are 
untimely.  The RFP advised offerors how the agency would treat past 
performance in the evaluation and selection process, and the 
allegation that this treatment does not satisfy statutory and 
regulatory standards is one that, under our Bid Protest Regulations, 
must be filed prior to the time set for receipt of initial proposals.   sec.  
21.2(a)(1), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4 
C.F.R.  sec.  21.2(a)(1); Engelhard Corp., B-237824, Mar. 23, 1990, 90-1 
CPD  para.  324. 

4. The supplemental protest broadly mentioned 14 subfactors and 
subsubfactors.  The second supplemental protest broke out five of 
these subfactors and subsubfactors as relating to the ICF Kaiser 
evaluation.  The November 12 comments identified six of the remaining 
nine issues as relating to the OHM evaluation.  OHM has provided 
nothing to support its allegation of an improper evaluation under the 
remaining three subfactors and subsubfactors.

5. The only link to the second protest was the argument that, even if 
OHM had not submitted a complete plan, its extensive experience in 
HTRW work should have substituted for the information missing from its 
proposal.  This argument has no merit; the offeror must prepare an 
adequately written proposal which can be evaluated in accordance with 
the criteria set forth in the solicitation and runs the risk of being 
rejected if it does not do so.  Compliance Corp., B-254429; 
B-254429.2, Dec. 15, 1993, 94-1 CPD  para.  166.