BNUMBER:  B-275636
DATE:  March 10, 1997
TITLE:  SouthEastern Technologies, Inc.

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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.