BNUMBER: B-275636
DATE: March 10, 1997
TITLE: SouthEastern Technologies, Inc.
**********************************************************************
Matter of:SouthEastern Technologies, Inc.
File: B-275636
Date:March 10, 1997
R. Keith Kibbe for the protester.
Wendy E. Bryant, Esq., and Gena Cadieux, Esq., Department of Energy,
for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging as unclear the terms of a Commerce Business Daily
announcement seeking expressions of interest (EOI) for a
decontamination, decommissioning, and recycling project for the
Department of Energy (DOE) is denied where on its face, the
announcement reasonably described the work to be performed and
provided sufficient information, considering the nature of the
procurement, to enable all interested parties, including the
protester, to prepare EOIs in response, particularly given that prior
to publishing the announcement DOE held a workshop to discuss the
agency's goals with respect to the project with private industry, and
protester attended that workshop, presented its proposed approach to
DOE officials, and was a team member of a consortium that subsequently
submitted a proposal to DOE to complete the project.
DECISION
SouthEastern Technologies, Inc. challenges as unclear the terms of a
Commerce Business Daily (CBD) notice published by the Department of
Energy (DOE) seeking expressions of interest (EOI) for a
decontamination, decommissioning, and recycling project.
We deny the protest.
By way of background, in 1985, DOE discontinued uranium enrichment
operations at its Gaseous Diffusion Plant in Oak Ridge, Tennessee.
The discontinuation of these operations has resulted in underutilized
facilities, equipment, materials, and infrastructure. With the loss
of the mission for uranium enrichment for weapons, the mission has
turned to environmental cleanup and re-industrialization of the site,
referred to in the record as the "K-25 Site." Re-industrialization of
the K-25 Site is intended to replace jobs reliant on federal funding
with private industry jobs. The agency's goal is to significantly
reduce the federal presence at the site by the year 2010. To achieve
that end, the Oak Ridge Operations Manager detailed a task team called
"Vision 2010" to seek economical and effective means of accomplishing
the agency's goal.
During April 1996, the Vision 2010 task force hosted an "Industry
Advice and Information Exchange" workshop to discuss the K-25 Site
assets and potential business opportunities with private industry.
The purpose of the workshop was to give attendees an overview of the
available facilities, equipment, and material salvage and recycle
operations in Oak Ridge's facilities. The workshop was advertised in
the CBD and in local and national newspapers. The protester
participated in the workshop and also made a presentation to members
of the Vision 2010 Task Team.
As a result of the workshop, several firms submitted proposals
offering various approaches to complete the project. Only two
approaches, however, addressed the complete decontamination and
decommissioning of the three buildings at the site. One approach was
proposed by a consortium headed by British Nuclear Fuels Limited, Inc.
and Manufacturing Sciences Corporation (the BNFL consortium); the
second proposal was submitted by the Teledyne/Allegheny consortium,
which included the protester as part of its team.
Over the next several months, DOE continued to work with both
consortiums to refine their approaches. Ultimately, the
Teledyne/Allegheny consortium concluded that it could not meet the
government's needs and withdrew its proposal, leaving only the BNFL
consortium to pursue the project. Based on the information DOE had
gathered over the preceding several months, the agency decided to
negotiate a contract on a non-competitive basis with the BNFL
consortium, and on November 4, 1996, DOE published the CBD
announcement at issue here.
The CBD announcement, entitled "K-25 SITE THREE-BUILDING
DECONTAMINATION AND DECOMMISSIONING (D&D) AND RECYCLING PROJECT,"
explained that as a result of proposals received through the Vision
2010 workshop, DOE "intends to negotiate a contract which may be on
other than full and open competition for the D&D of the K-29, K-31,
and K-33 process buildings and recycling of materials and equipment
contained therein." The CBD notice stated that due to DOE scheduling
requirements, "a formal solicitation may not be issued." Interested
parties were invited to submit a "written expression of interest which
should demonstrate their experience and capability to decontaminate
and decommission similar facilities with a proven technology." In
essence, the protester argues that the CBD announcement was so unclear
that it was unable to determine what DOE intended.
The requirement for and content of synopses of proposed contract
actions is governed by 15 U.S.C. sec. 637(e), (f) (1994) and 41 U.S.C. sec.
416(a), (b) (1994) as implemented by Federal Acquisition Regulation
(FAR) 5.201, 5.207. The instant synopsis published by DOE contains
an "accurate" [15 U.S.C. sec. 637(f)(1); 41 U.S.C. sec. 416(b)(1)] and a
"clear and concise" [FAR 5.207(b)(4) (format item 17)] description of
the proposed action. It provides "information that will assist a
prospective contractor to make an informed business judgment as to
whether," in this situation, to submit an EOI. 15 U.S.C. sec. 637(f)(1);
41 U.S.C. sec. 416(b)(1). DOE substantially couplied with the prescribed
synopsis transmittal format, FAR 5.207(b)(4), and the notice published
the applicable requirements of 15 U.S.C. sec. 637(f) and 41 U.S.C. sec.
416(b). See generally Talon Corp., B-248086, July 27, 1992, 92-2 CPD para.
55.
In that the synopsis appeared to be more than the customary notice and
was seeking EOI's, an analogy to the sufficiency of solicitations is
instructive. As a general rule, a contracting agency must give
offerors sufficient information in a solicitation to enable them to
compete intelligently and on a relatively equal basis. University
Research Corp., 64 Comp. Gen. 273 (1985), 85-1 CPD para. 210. There is no
requirement that an agency draft specifications in such detail as to
completely eliminate any risk or remove every uncertainty from the
mind of every prospective offeror. A&C Bldg. and Indus. Maintenance
Corp., B-230270, May 12, 1988, 88-1 CPD para. 451. Offerors are expected
to use their business judgment and professional expertise to determine
the most efficient and effective method of meeting the government's
requirements. McDermott Shipyards, Div. of McDermott, Inc., B-237049,
Jan. 29, 1990, 90-1 CPD para. 121. While this protest does not involve a
formal solicitation, we think that these standards are equally
applicable to a challenge, such as SouthEastern's, that a CBD
announcement seeking EOIs is unclear. We have considered all of the
protester's allegations and, based on our review of the record,
conclude that SouthEastern has failed to show that the CBD
announcement is unclear or otherwise contains any genuine ambiguities
that precluded the firm from preparing an adequate EOI.
The CBD announcement explains in detail the contents of the three
buildings at the K-25 Site (K-29, K-31, and K-33) and includes a
description of the size of each. For instance, the CBD stated that
"[t]he K-29 building contains three inactive gaseous diffusion process
units consisting of ten cells each. Each cell contains ten stages,
for a total of 300 stages." The announcement contained a similar
description of the contents of the other two buildings and stated that
"[a]ltogether, these three process buildings house a total of 1,540
stages." The announcement explained that "[a] stage consists of two
electric motors, axial flow compressors, a converter containing a
large surface area of barrier material, and associated process piping
and valves." It also described the gross square footage for each
building, and included an estimated tonnage of valuable metals
contained within each (nickel, aluminum, stainless steel, and copper),
explaining that some of these assets are contaminated with radioactive
and chemical materials.
With respect to the work to be completed, the CBD announcement
specifically stated as follows:
"The work scope for the K-25 Site Three-Building D&D and
Recycling Project requires as a minimum the following: 1)
responsibility for surveillance and maintenance of the three
process buildings, 2) removal of all process equipment and
materials from the three buildings, 3) decontamination of all
vacant areas within the building to 'brownfield' status, 4)
recycling of the majority of materials, 5) disposal of secondary
waste, 6) preparation of the three buildings for industrial use,
and 7) having one of the buildings ready for industrial occupancy
by the year 2000."
The announcement stated that the contractor would be responsible for
disposing of the resulting recycled material/equipment/products, and
that the contractor would also be responsible for all wastes and
by-products associated with completing the effort.
In our view, the CBD announcement, by describing in detail the
conditions at the site as well as the work to be performed, provided
sufficient information to enable all interested parties, including the
protester, to prepare reasonably detailed EOIs in response.
SouthEastern argues that the announcement was deficient because it
could not tell whether the DOE intended the CBD announcement to be a
presolicitation notice pursuant to Federal Acquisition Regulation
(FAR) sec. 15.404, or whether the agency intended to establish
qualification requirements pursuant to FAR Subpart 9.2. The protester
further argues that the CBD announcement was insufficient because it
failed to include note 22, the standard note which invites interested
firms to identify their capability and submit EOIs, as prescribed by
FAR sec. 5.207(e)(3) (FAC 90-41).
As noted above, the announcement specifically stated that DOE "intends
to negotiate a contract which may be on other than full and open
competition basis"; the announcement also clearly stated that DOE was
seeking EOIs from parties who could demonstrate the experience and
capability to perform the work required, and that DOE might conduct
negotiations with "all responsible offerors who demonstrate
prerequisite capability and technology." Notwithstanding the lack of
reference to note 22 in the CBD announcement, a reasonable reading of
the CBD notice shows clearly DOE's intent in publishing the notice--to
advise potential offerors of DOE's intent to negotiate a sole-source
contract with the BNFL consortium, unless DOE received EOIs from other
firms showing that a sole-source contract was not appropriate.
SouthEastern also maintains that the CBD announcement lacked
sufficient detail for potential offerors to know exactly what
information to include in their EOIs. For instance, the protester
contends that the CBD notice contained only a conclusory statement
that the BNFL consortium had demonstrated its capability and
technology to complete the project, but did not identify any
decontamination or nickel recovery technologies to be used by the
consortium. According to SouthEastern, it needed this detailed
information in order to adequately respond to the CBD announcement.
Risks are inherent in procurements, and an agency may properly impose
substantial risk on the contractor and minimal risk upon itself.
Essex Electro Eng'rs, Inc., 72 Comp. Gen. 299 (1993), 93-2 CPD para. 141.
There is no legal requirement that a solicitation eliminate all
performance uncertainties; such perfection, while desirable, is often
impractical in some procurements, particularly where, as here, the
contemplated project is unprecedented. In fact, in this connection,
SouthEastern characterizes the requirement as being "first-of-a-kind,"
adding that "[n]o one has ever decontaminated and decommissioned one
of the U.S. gaseous diffusion plants." Given the nature of the
procurement, it is clear that the DOE is not in a position to suggest
to potential contractors how the work was to be accomplished or what
technologies should be used to complete the project.[1] Given the
unprecedented nature of the project, we think that it is unreasonable
for potential offerors to expect the level of detail sought by the
protester.
The mere presence of substantial risks placed on potential contractors
does not render the CBD announcement legally deficient. See AAA Eng'g
& Drafting, Inc., B-236034, Oct. 31, 1989, 89-2 CPD para. 404. Under
these circumstances, it is not unreasonable for the DOE to expect
offerors to use their professional expertise and business judgment in
anticipating a variety of factors that they should assess in
addressing the agency's needs. See, e.g., Custom Envtl. Serv., Inc.,
70 Comp. Gen. 184 (1991), 91-1 CPD para. 38; A&C Bldg. and Indus.
Maintenance Corp., supra.
The protester's contentions are particularly without merit when the
CBD announcement is read within the historical context of the K-25
Site D&D project. In this regard, the record shows that prior to
publishing the announcement, the agency conducted the "Vision 2010"
workshop to discuss the project and DOE's goals with private industry.
SouthEastern attended that workshop and the firm was given an
opportunity to, and in fact did, present its approach to DOE during a
private workshop session. Subsequently, SouthEastern was a member in
a consortium which submitted a proposal to the agency, and the agency
continued to work with the consortium to refine its approach to
completing the project.
Thus, the record shows that by the time DOE published the CBD
announcement at issue here, SouthEastern had substantial involvement
with DOE both as an active participant in the Vision 2010 workshop and
later as a member of a consortium that submitted a proposal to
complete the K-25 Site D&D project. In view of that involvement, it
is not unreasonable for DOE to expect that SouthEastern, along with
other Vision 2010 workshop participants, would use their business
judgment and professional expertise in responding to the CBD
announcement. While we conclude that the CBD announcement was clear
on its face, given SouthEastern's extensive involvement with this
project, the protester's allegation that the CBD announcement was so
"garbled" that it could not determine what DOE expected, is especially
without merit.[2]
The protest is denied.
Comptroller General
of the United States
1. The protester also contends that the CBD notice should have
revealed the technologies proposed by the BNFL consortium so as to
allow potential offerors to propose solutions that would give them a
chance to submit a proposal for the work. As already explained, this
is contrary to DOE's intent--to place the burden on the interested
firms to suggest their approach, rather than specifying how the
project should be completed. In any case, we note that FAR sec. 3.104-5
(FAC 90-40) requires that agencies protect proprietary information
contained in a bid or proposal from unauthorized disclosure. The DOE
is thus precluded from publicly disclosing BNFL's approach.
2. Eight firms, including the protester, submitted written EOIs in
response to the CBD announcement. One firm subsequently withdrew from
further participation. A team of evaluators reviewed the remaining
EOIs and determined that all were unacceptable primarily because no
EOI completely satisfied the agency's requirements, and recommended
that DOE negotiate a contract with the BNFL consortium as announced in
the CBD notice. DOE notified the offerors of the evaluation team's
conclusion on December 11; SouthEastern does not challenge the
rejection of its EOI. Since we conclude that the CBD announcement was
clear with respect to the agency's requirements and deny the protest
on that basis, we need not address DOE's argument that SouthEastern is
not an interested party to maintain the protest.