BNUMBER: B-278408; B-278408.2
DATE: January 26, 1998
TITLE: Thermolten Tech., Inc., B-278408; B-278408.2, January 26,
1998
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Matter of:Thermolten Tech., Inc.
File: B-278408; B-278408.2
Date:January 26, 1998
E. Kent Hirsch, Esq., for the protester.
Frank J. Borgia for Burns and Roe Enterprises, Inc., an intervenor.
Joshua A. Kranzberg, Esq., and Lisa R. Simon, Esq., Department of the
Army, for the agency.
Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest against conduct of debriefing, contending that agency
should have had experts capable of understanding technical aspects of
proposal conduct the debriefing in order to allow protester to
elaborate on its inadequately written proposal, is denied; the
adequacy of a debriefing is a procedural matter concerning agency
actions after award which are unrelated to the validity of the award,
and, in any event, the purpose of a debriefing is not to give offerors
the opportunity to cure deficiencies in their proposals, but to
furnish the basis for the selection decision and contract award.
2. Protest that agency improperly rejected protester's proposal for
failure to meet solicitation's technical requirements is denied where
the record shows that proposal contained major deficiencies--a failure
to present a coherent explanation of the offered process for disposing
of chemical munitions and a general lack of care in assessing and
managing the potentially lethal byproducts of the process--reasonably
warranting its rejection.
3. Post-award protest that agency improperly limited competition to
offerors of "mature technologies" is dismissed as untimely where
solicitation made clear that agency was seeking only such technologies
and protest thus should have been filed before the time set for
receipt of initial proposals.
DECISION
Thermolten Tech., Inc. protests the rejection of its proposal
submitted in response to request for proposals (RFP) No.
DAAM01-97-R-0031, for identification of technologies other than
incineration for demilitarization of assembled chemical weapons.
Thermolten generally challenges the evaluation of its proposal and
contends that, given the unique nature of its process, which could not
be explained adequately through the normal proposal preparation and
review process, it should have had the opportunity to supplement its
written proposal through a presentation at the post-award debriefing.
We deny the protests.
As a signatory to the Chemical Weapons Convention, ratified to date by
168 countries and effective in April 1997, the United States became
obligated to destroy chemical weapons previously stored at depots
within the United States and its territories. The Army's preferred
method of disposal, incineration, has created concerns over
potentially toxic byproducts that could be released into the air
surrounding the disposal sites. As a consequence, section 8065 of the
National Defense Appropriations Act for 1997, Pub. L. No. 104-208, 110
Stat. 3009, 3009-101-3009-102 (1996), provided for:
the conduct of a pilot program to identify and demonstrate not
less than two alternatives to the baseline incineration process
for the demilitarization of assembled chemical munitions . . .
[and evaluation of] the effectiveness of each alternative
chemical munitions demilitarization technology identified and
demonstrated under the pilot program to demilitarize munitions
and assembled chemical munitions while meeting all applicable
Federal and State environmental and safety requirements . . .
[N]o funds may be obligated for the construction of a baseline
incineration facility at the Lexington Blue Grass [Kentucky] Army
Depot or the Pueblo [Colorado] Depot activity until 180 days
after the Secretary of Defense has submitted to the congressional
defense committees a report detailing the effectiveness of each
alternative chemical munitions demilitarization technology
identified and demonstrated under the pilot program and its
ability to meet the applicable safety and environmental
requirements . . . .
The statute thus suspends construction activities on additional
facilities for incineration until the agency has identified, analyzed,
and reported to Congress on promising alternative technologies
necessary for meeting the United States' treaty obligations.
On July 28, 1997, the agency issued the RFP here, for the selection
and demonstration of approaches, other than the "baseline"
incineration approach, for demilitarization and disposal of stockpiled
assembled chemical weapons. RFP sec. C.1. The solicitation advised
offerors that the assembled chemical weapons assessment (ACWA) program
here was separate from the chemical stockpile disposal program, in
constituting an effort to find whether there existed "mature
technology" alternatives to incineration. RFP sec. C.1.2.
The solicitation provided for the evaluation of offers and the award
of multiple task order contracts for the resolution of "data gaps"[1]
in the selected technologies and subsequent demonstration of the most
promising technologies. RFP sec. A (executive summary) and M.2. As a
first step, the agency would evaluate the proposals for responsiveness
to the requirements of the solicitation, as well as against six
"threshold" criteria, described below. RFP sec. M.2.2. The agency would
award initial $50,000 firm, fixed-price task orders for "data gap"
resolution to all responsive offerors meeting the threshold criteria.
For this effort, the agency would assess selected technologies for
"data gaps," and each contractor would prepare a Data Gap Resolution
Work Plan and perform testing to fill in the identified data gaps.
RFP sec. M.2.3. The agency would use the results of this effort to rank
the technologies and select a minimum of two for demonstration
testing. The contractors offering these selected technologies would
receive $50,000 firm, fixed-price task orders to prepare Demonstration
Work Plans for demonstration testing. RFP sec. M.2.4. Using criteria
not relevant to the instant protest, the program evaluation team would
then select contractors to receive cost-plus-fixed-fee task orders for
demonstration testing. RFP sec. M.2.5.
As stated above, the selection of contractors would be based upon the
offers' responsiveness to the terms of the RFP and compliance with six
threshold criteria. The RFP warned offerors that the threshold
criteria represented the minimum requirements for award and that a
failure to meet any of the threshold criteria would result in
elimination from further consideration. RFP sec. M.6.1.2. The six
criteria were as follows:
M.6.1.2.1 Total Solution The technology(ies) must be a total
ACWA Program solution for at least one single agent-filled
munition type (VX Rockets or HD 105mm Projectile, etc.). The
proposed solution may include use [of] any of the following
existing processes: (1) the reverse assembly process to access
the components (i.e., agent, metal parts, energetics, and
dunnage/packaging); (2) neutralization for agent (HD and VX); and
(3) smelting for metal parts (if already decontaminated to a 3X
condition).
M.6.1.2.2 Alternative to Baseline Incineration. The
technology(ies) must be an alternative to baseline incineration.
M.6.1.2.3 ACWA Schedule. The technology(ies) must utilize
processes and equipment that are developed or capable of being
developed in time to meet (not extend) the current ACWA program
schedule (initiate demonstration test program by June 1998).
M.6.1.2.4 Laboratory Testing with Agent or Similar Chemicals.
Laboratory-scale testing must have been completed with agent(s)
or chemicals with similar properties to agent to support the
viability of the technology being proposed.
M.6.1.2.5 Laboratory Testing with Energetics or Similar
Chemicals. Laboratory-scale testing must have been completed
with energetic(s) or chemicals with similar properties to
energetics to support the viability of the technology being
proposed.
M.6.1.2.6 Legal Right to Technology. Offerors must have the
legal right to use any proprietary technology for testing and
demonstration purposes, as evidenced by unencumbered ownership or
by an existing licensing or other agreement granting such right.
Section L of the RFP provided instructions for the preparation of
offers. It directed offerors to provide detail for every area to be
covered--not simple repetition of requirements or a simple promise,
without detail, to comply with contract requirements. RFP sec. L.3.5.2.
Section L.6 provided an outline for offerors to follow, beginning with
a process summary ( sec. L.6.1.1), the design basis (assumptions and
exceptions, sec. L.6.1.2), and a process description ( sec. L.6.1.3). The
offeror was to provide actual or theoretical proof that the process
would work as planned ( sec. L.6.1.4), a preliminary design for the
proposed hypothetical full-scale system ( sec. L.6.1.5), and a
demonstration schedule ( sec. L.6.1.8). The offeror was also to address
health, safety, and environmental issues, including properties of the
process materials and their health effects, potential hazards and
safeguards. RFP sec. L.6.1.6. The offeror was to address the
characteristics and impact of any effluent discharge into air or water
or as solid waste, including quantity and methods for monitoring,
treating and disposal. RFP sec. L.6.1.7.
The agency received 12 proposals by the closing date of September 15
and referred them to an evaluation team. The team found seven
proposals that met the six threshold criteria and recommended award of
task order contracts to the seven offerors that had submitted those
proposals. With regard to Thermolten's proposal, the team determined
that the protester had failed to meet five of the six threshold
criteria--all but the second criterion (Alternative to Baseline
Incineration). On October 6, the contracting officer accepted the
evaluation team's recommendation to award contracts to the seven firms
whose responsive proposals had met the threshold criteria. The
protester requested a debriefing, which the agency provided on October
14. These protests to our Office followed.
The first issue raised by the protester concerns the conduct of the
debriefing. Thermolten complains that it had expected an opportunity
to explain its proposal to a group including experts capable of
evaluating the technical aspects of its proposal and, possibly,
reversing the determination of the evaluation team. Protest at 2.
Thermolten complains that, without such experts present, the
debriefing protest was a "wild goose chase," in that its expectation
of presenting data to support its proposal was frustrated. Protest at
3.
A protester's challenge to the adequacy of a debriefing is a
procedural matter concerning agency actions after award which are
unrelated to the validity of the award; we generally will not review
such matters. C-Cubed Corp., B-272525, Oct. 21, 1996, 96-2 CPD para. 150
at 4 n.3. In any event, the purpose of a debriefing is not to give
offerors the opportunity to cure deficiencies for the instant
procurement, but to furnish the basis for the selection decision and
contract award. 10 U.S.C. sec. 2305(b)(5) (1994); Security Defense Sys.
Corp, B-237826, Feb. 26, 1990, 90-1 CPD para. 231 at 4. While the
debriefing here may not have been what Thermolten expected, there is
nothing to indicate that it was improper or inadequate under the
requirements of the Federal Acquisition Regulation (FAR). FAR sec.
15.1006(a) (June 1997); see FAR sec. 15.606(a)(1) (FAC 97-2).
With respect to its challenge to the agency's conclusion that its
proposal did not meet five of the threshold criteria in the RFP,
Thermolten has not identified any specific aspect of the evaluation to
which it takes exception. In fact, after reviewing the agency report,
Thermolten states only that it "stand[s] upon" its protest and the
record submitted by the agency in support of its objections.
The function of our Office is not to reevaluate proposals, but to
review the agency's evaluation to ensure that it was fair, reasonable,
and consistent with the evaluation criteria stated in the
solicitation. VSE Corp., B-247610.2, Aug. 6, 1992, 92-2 CPD para. 81 at
6. The evaluation of technical proposals is primarily the
responsibility of the contracting agency, since the agency is
responsible for defining its needs and the best method of
accommodating them, and it must bear the burden of any difficulties
resulting from a defective evaluation. Litton Sys., Inc., B-237596.3,
Aug. 8, 1990, 90-2 CPD para. 115 at 8. Where, as here, the solicitation
makes no provision for an oral presentation, the evaluation must be
based on the written material submitted with the proposal. Suncoast
Scientific Inc., B-240689, Dec. 10, 1990, 90-2 CPD para. 468 at 6. Our
review discloses nothing from which we could conclude that the
evaluation was either unreasonable or inconsistent with the stated
evaluation criteria.
Thermolten essentially admits that it made little effort to address
the specific RFP requirements, asserting that its process was so
innovative that the ordinary rules of proposal submission did not
apply. For example, as noted above, RFP sec. L.6.1.7 required offerors
to address a detailed and specific list of environmental issues,
including the characteristics and quantity of any effluent discharge
into air or water or as solid waste, and proposed methods for
monitoring, treating and disposal. Despite the express warning of RFP sec.
L.3.5.2 that a simple promise to comply would be insufficient,
Thermolten's response to sec. L.6.1.7 was as follows:
L6.1.7 HUMAN HEALTH AND ENVIRONMENT:
The thermolten equipment and process ensures minimum impact on
human health and the environment and will not add to any impact
that already exists in the permitted area. Thermolten Tech. will
use all existing permits and standards in place now and in the
future.
(Thermolten proposal, para. L6.1.7, page 39, quoted in its entirety.)
The protester thus chose to omit any discussion of what or how much
emissions its process might produce, what the consequences of the
emissions might be, or how it planned to monitor and control the
emissions, in addition to avoiding any discussion of the potential
problems that might arise from its proposed method of controlling
hazardous emissions. In addition, the evaluators concluded that the
proposal focused almost entirely upon the theory and history of its
process, providing little detail on what Thermolten actually proposed
to do. Contracting officer's statement, Nov. 17, 1997, at 11; see
also Thermolten proposal, para. L6.1.2 and 6.1.5, pages 10-12 (relating
to design, begins by quoting Genesis 1:1 and continues with a
discussion of how the addition of a proton to the nucleus and an
electron to the outer shell of an atom, beginning with hydrogen,
produces the first 18 elements of the periodic table). The
descriptions, the evaluators found, were vague and omitted data
necessary to determine the viability of the process.
In essence, it was the lack of detail and failure to include
supporting data that led the evaluators to conclude that Thermolten's
proposal did not meet the RFP requirements. As the discussion below
shows, the record demonstrates that the evaluators' conclusion was
reasonable.
With regard to the first threshold criterion, Total Solution, the
evaluators found the proposal lacked detail on the design,
particularly how the parts of the system worked together to ensure
destruction of all components and materials of the chemical weapons.
Source Selection Evaluation Board report, at 3-3. The proposal
contained indications that the protester had not yet settled on a
final design:
The process described, with some alterations, permits the
destruction/treatment of [all] agents, energetics, metals of
drained munitions, plus all dunnage. (Thermolten proposal, para.
L6.1.3, page 20; emphasis added.)
[The reactor has a] middle core of either a low melting point
metal or alloy, or a suitable solid metal, such as steel or a
combination of the two. (Id.; emphasis added.)
Similarly, Thermolten proposed to destroy energetics and propellants
"by drilling holes at strategic places in the munition," without
discussing where the "strategic places" were or what equipment it
would be using to bore into the explosive material. Id. at 21. The
portion of the proposal intended to address safety requirements,
introduces a plan to use robotics in place of manpower (obviating the
need to discuss safety requirements), with no detail on the type of
robotics equipment to be used or where, in the process, it is to be
used. Id. at para. L6.1.6, page 38. Based on the information in the
proposal, the evaluators reasonably concluded that the protester had
not defined a total solution.
The evaluators concluded that Thermolten met the second criterion,
Alternative to Baseline Incineration. However, the vagueness of the
proposal and the failure to identify the development status of the
proposed technologies left the evaluators unable to determine that the
proposal met the third threshold criterion, Schedule. As with its
response to the solicitation's environmental requirements, the
protester avoided any discussion of specifics, providing instead a
general assurance that its processes were in place, that it could
provide a demonstration on 30 days notice, and the promise, with no
further detail, that it could meet the current demonstration test
program scheduled for June 1998. Id. at para. L6.1.8, page 40.
Of more serious concern were the evaluators' conclusions regarding the
protester's failures to meet the fourth and fifth criteria, Agent
Destruction and Energetics Destruction. The protester made little or
no effort to identify the byproducts of its process, stating only that
it identified a "distinctive odor" (the rotten egg smell of sulfur)
and that the byproduct was probably some sulfur compound or another.
Id. at para. L.6.1.4, page 29. The protester also recovered "an unknown
compound" left by the destruction of melathion, a "possible" compound
of phosphorus, and a "red liquid . . . which in all probability is
trithiocarbonic acid." The protester had no idea where certain of the
original material had gone, stating that some material--approximately
341 grams of a 500-gram mixture including mustard gas and
nitroglycerine--had "simply vanished" after heating. Thus, even where
the protester did find the byproducts of its process, it made little
effort to analyze them beyond observation and smell. The record
therefore demonstrates that the evaluators' concerns with Thermolten's
proposal were both reasonable and consistent with the criteria
specified in the solicitation.
As noted above, sec. C.1.2 of the RFP advised offerors that it was the
purpose of the ACWA program to explore "mature technology"
alternatives to incineration. This language, repeated in both the
contracting officer's statement and the letter forwarding the agency
report to our Office, prompted Thermolten to file a second protest,
objecting that the appropriation statute, quoted above, makes no
mention of mature technologies. The statute merely requires the Army
to evaluate alternatives to baseline incineration, which, in
Thermolten's view, the agency admits the protester provided.
Thermolten's protest on this ground is untimely. As noted above, RFP sec.
C.1.2.1 specifically states that the agency is looking for "mature
technology" alternatives to baseline incineration; further, amendment
No. -001 to the RFP provided answers to questions from the offerors,
including a definition of "mature technology," which, to the agency,
means only that a contractor can meet the ACWA demonstration schedule,
as well as the schedule mandated by the Chemical Weapons Convention,
using that technology. The requirement is therefore, in the agency's
view, a reasonable response to the schedule imposed upon the agency by
statute and treaty. To the extent that Thermolten disagrees, it
should have raised this issue prior to the submission of proposals,
not after its proposal had been rejected. 4 C.F.R. sec. 21.2(a)(1)
(1997) (protests based upon alleged improprieties in a solicitation
which are apparent prior to the time set for receipt of initial
proposals shall be filed prior to that time). In addition, the record
indicates that there were severe deficiencies in the protester's
proposal that had nothing to do with the maturity or the developmental
nature of the proposed process. As discussed above, the proposal did
not adequately describe the procedure proposed, or the precautions to
be taken, and, considering the lethal nature of the products at issue,
exhibited a remarkably casual attitude toward identifying the residue
created by the process. Thus, the agency could have properly found
the proposal unacceptable regardless of whether the technology met the
"mature technology" requirement, which as stated above, was little
more than a requirement that an offeror could meet the required
schedule using the proposed process.
The protests are denied.
Comptroller General
of the United States
1. The term "data gaps" is used in the RFP to mean additional data or
information necessary to fully assess the proposed technology.