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.