BNUMBER:  B-280520 
DATE:  October 14, 1998
TITLE: Buck Environmental Technologies, LLC, B-280520, October 14,
1998
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.

Matter of:Buck Environmental Technologies, LLC

File:B-280520

Date:October 14, 1998

William B. Barton, Jr., Esq., and William T. Welch, Esq., Barton, 
Mountain & Tolle, for the protester. 
Lee P. Curtis, Esq., Harvey G. Sherzer, Esq., and Douglas S. Manya, 
Esq., Howrey & Simon, for PRIMEX Technologies, Inc., the intervenor. 
Maj. Cynthia Mabry, Vera Meza, Esq., and Terese Marie Harrison, Esq., 
Department of the Army, for the agency. 
John L. Formica, Esq., and Jerold D. Cohen, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protester was not prejudiced by the agency's consideration of the 
transportation costs to the government associated with each offeror's 
proposal in determining which proposal submitted in response to a 
solicitation for the demilitarization of ammunition represented the 
best value to the government, where the solicitation did not 
explicitly state that such costs would be evaluated, because the 
agency reasonably determined that the costs should be considered and 
the record does not evidence that if the solicitation had been 
explicit the protester would have submitted a different proposal that 
would have had a reasonable possibility of award.

2.  Agency's estimate of transportation costs associated with the 
protester's proposal cannot be determined unreasonable where the 
estimate was prepared by government transportation rate specialists, 
and then was reviewed and double-checked by transportation rate 
specialists in response to the protest, and the protester, despite 
access to the breakdown of costs associated with the estimate, states 
only that one area of costs "appears excessive" and fails to identify 
any specific errors in the estimate.

3.  Agency's evaluation and relatively low rating of the protester's 
oral presentation and response to discussion questions were reasonable 
where the presentation and discussion responses failed in some 
instances to provide certain information specifically requested by the 
solicitation, and in other instances were very general. 

DECISION

Buck Environmental Technologies, LLC protests the award of a contract 
to PRIMEX Technologies, Inc., under request for proposals (RFP) No. 
DAAA09-97-R-0209, issued by the Department of the Army for the 
demilitarization of ammunition.  Buck argues that the agency's 
evaluation of its proposal was unreasonable and not in accordance with 
the evaluation factors set forth in the solicitation.

We deny the protest.

The RFP, issued on January 28, 1998, provided for a fixed price 
contract with a performance period not to exceed 18 months from the 
date of award.  RFP at 2, RFP statement of work (SOW) at 1.  The 
successful contractor under the RFP will be required to provide all 
necessary materials, equipment, and personnel to demilitarize certain 
ammunition.[1]  RFP SOW at 1.  The solicitation provided that the 
ammunition would be furnished "F.O.B. contractor's place of 
performance," RFP at 11, and that the "[a]mmunition shipped to a 
contractor site will be shipped at Government expense."  RFP SOW at 
11.  The RFP (at 8) also incorporated by reference the standard clause 
"F.O.B. Point for Delivery of Government-Furnished Property," Federal 
Acquisition Regulation  sec.  52.247-55, which states in part:
     
     If the destination of such Government-furnished property is a 
     Contractor's plant located outside the 48 contiguous states, the 
     District of Columbia or Canada, the f.o.b. point for Government 
     delivery of Government-furnished property shall be a location in 
     the United States (excluding Alaska and Hawaii) specified by the 
     Contractor. 

Award in the procurement was to be made to the offeror submitting the 
proposal representing the best value to the government, price and 
other factors considered.  RFP at 2, 28.  The RFP requested that 
offerors, "in lieu of a written technical proposal . . . make an oral 
presentation to a panel of government evaluators."  RFP at 2.  The 
solicitation listed the following evaluation factors and their 
relative weights:  oral presentation (40 percent); past performance 
(40 percent), and cost (20 percent).  RFP at 28-29.  The solicitation 
also noted that the agency would "develop a level of confidence 
assessment rating for each offeror" which would "reflect the 
government's degree of confidence that the offeror will keep the 
promises it made in its proposal."  RFP at 29.

The RFP, in setting forth detailed instructions for the preparation of 
proposals, noted that the oral presentation would "be an opportunity 
for the offeror to demonstrate his understanding of the RFP 
requirements and provide additional insight into his capability to 
perform."  RFP at 25.  The RFP added that the oral presentation would 
be limited to 2 hours, and that the number of presenters would be 
limited to four.  Id.  The solicitation also required that an offeror 
provide a written summary of its oral presentation, not to exceed 10 
pages in length, prior to the oral presentation.  Id.   

Section L of the RFP included a detailed outline for the oral 
presentation, and informed offerors that "oral presentation presenters 
must demonstrate specific/detailed knowledge of and proposed 
application to" the demilitarization process and the associated areas 
of safety, security, and environmental concerns.  RFP at 26.  The 
outline included three to four items under each of these areas (demil 
process, safety, security, and environmental concerns) which the 
offerors were instructed to address.  Id.  For example, the RFP (at 
26) included the following items to be addressed by the offerors 
during the portion of their oral presentations about safety:

     1. Show how you will comply with the contractual safety 
        regulation, DOD [Department of Defense] 4145.26M, DOD 
        Contractors' Safety Manual for Ammunition and Explosives.

     2. Discuss your facility siting and quantity-distance compliance 
        applicable to the place of performance for this contract.

     3. Specify specific industrial safety and regulatory compliance 
        issues related to this contract.

     4. Discuss the actual process analysis and hazard/risk management 
        that will apply to this contract.

The agency received proposals from four offerors, including Buck and 
PRIMEX, by the RFP's March 16 closing date.  Buck stated in its 
proposal that the work required under the contract would be performed 
at its facility in [DELETED], and that its total price of $14,245,996 
for the base and option quantities "is firm fixed and includes all 
transportation from FOB USA east coast [DELETED]."  Buck proposal at 
22.  PRIMEX offered to perform the work required under the contract 
for a total price of $13,420,380, at its facility in Marion, Illinois.

The agency distributed past performance surveys, asked its 
transportation office to compute the costs to the government of 
transporting the ammunition to the places of performance specified by 
the offerors in their proposals, and scheduled oral presentations with 
all four offerors.  The offerors were informed that the 2-hour 
presentations would be followed by a 1-hour recess, during which the 
evaluation team members would discuss the presentation and "decide 
what if any clarifications they may need."  Agency Report, tab 15, 
letters to offerors.  The offerors were further informed that should 
clarifications be required, the "designated Government spokesperson 
will request the noted clarifications from your presenters.  This 
clarification period will last no longer than 1 hour."  Id.  

The offerors submitted their written summaries of their oral 
presentations, and the presentations were conducted and evaluated by a 
source selection evaluation board (SSEB).  Buck's and PRIMEX's oral 
presentations were rated at 34.5 and 78.5 out of 100 points, 
respectively.  With regard to Buck's oral presentation, the agency 
evaluators found that Buck had failed to provide much of the 
information requested by the RFP regarding the areas of safety, 
security, and environmental concerns.  

Upon review, the agency determined that "some very good/important 
questions were not asked" during the clarification portion of the oral 
presentations.  Agency Report, tab 33, Source Selection Decision 
Document, at 1.  The agency therefore decided to conduct discussions 
with the offerors.  Written discussion questions were forwarded to the 
offerors and the offerors' responses were received and evaluated.  The 
agency revised the offerors' oral presentation scores to reflect the 
information contained in the offerors' responses, with Buck's score 
increasing from 34.5 to 55 points, and PRIMEX's score increasing from 
78.5 to 85 points.    

By letters dated June 5, the agency requested that the offerors 
provide revised "Cost Proposals."  Agency Report, tab 29.  PRIMEX did 
not change its proposed total price for the base and option quantities 
of $13,420,380.  Buck responded by reducing its proposed price to 
$13,604,463.[2]  Buck noted that this price "reflect[s] shipping to an 
East Cost port paid by the Government and shipment from the port to 
[DELETED] paid by [Buck]."  Buck added that "[a]s an alternate 
proposal, if you will ship the rounds to [DELETED] as a Government 
shipment at Government expense, we will perform the demil" for a total 
price of $8,674,264.  Id.   

The agency received the responses to the past performance surveys, as 
well as the estimated costs to the government of transporting the 
ammunition to the offerors' places of performance as calculated by the 
transportation office.  PRIMEX's and Buck's past performance was rated 
as "excellent."  Agency Report, tab 31.  With regard to transportation 
costs, the agency was informed by its transportation office that it 
would cost the government approximately $5,775,382 to transport the 
ammunition to Buck's facility, and $299,184 to transport the 
ammunition to PRIMEX's facility.  Agency Report, tab 30.

In order to determine the total costs to the government associated 
with each offeror's proposal, the agency added the estimated costs of 
transporting the ammunition to the offerors' facilities, as calculated 
by the transportation office, to the offerors' proposed prices.  That 
is, the agency added the estimated $299,184 in transportation costs 
associated with PRIMEX's proposal to PRIMEX's total proposed price, 
arriving at a total evaluated price for PRIMEX's proposal of 
$13,719,564.  Similarly, the agency added the estimated $5,775,382 in 
transportation costs associated with Buck's proposal to Buck's total 
price, arriving at a total evaluated price for Buck's proposal of 
$19,379,845.  Agency Report, tab 32.

The final oral presentation and discussion responses, past performance 
evaluations, level of confidence assessment ratings (LOCAR), and 
cost/price evaluation results were forwarded to the source selection 
authority (SSA).  In this regard, PRIMEX received 85 out of 100 points 
for its oral presentation and discussion response, an "excellent" past 
performance rating, a LOCAR of .95, at an evaluated price of 
$13,719,564.[3]  Buck received 55 points for its oral presentation and 
discussion response, an "excellent" past performance rating, a LOCAR 
of .9, at an evaluated price of $19,379,845.  The SSA, while 
recognizing Buck as "a world-class, multi-national firm . . . [with] a 
proven history of literally centuries [of] experience," selected 
PRIMEX's proposal for award as representing the best value to the 
government.  Agency Report, tab 33, Source Selection Decision 
Document, at 2.  After requesting and receiving a debriefing, Buck 
filed this protest, challenging numerous aspects of the agency's price 
and technical evaluations.

The agency concedes that it made a number of mistakes in calculating 
both offerors' total evaluated prices.  First, with regard to Buck, 
the agency points out that, because Buck's primary proposal's price of 
$13,604,694 included the costs of transporting the ammunition to 
Buck's facility in [DELETED], only the costs of transporting the 
ammunition from the agency's facilities to an east coast port should 
have been considered in evaluating this proposal.  Contracting 
Officer's Statement at 9.  These costs were estimated by the agency's 
transportation office to be $244,213.  Contracting Officer's 
Statement, Attachment.  The agency concludes that Buck's primary 
proposal's price, which provided for Buck's transportation of the 
ammunition from an east coast port to Buck's facility in [DELETED], 
should have been evaluated as totaling $13,848,676, rather than 
$19,379,845.  Id.  

The agency adds that Buck's alternate price of $8,674,264, which was 
based on the agency's shipment of the ammunition to [DELETED], should 
have been evaluated as totaling $14,768,718.  Id.  The agency explains 
that the initial estimate that the transportation costs associated 
with this proposal totaled $5,775,381 was in error.  The agency states 
that the initial estimate should have been $5,772,736, and that this 
initial estimate failed to include $321,718 in costs associated with 
transporting the ammunition from [DELETED] to Buck's facility in 
[DELETED].  Contracting Officer's Statement at 9.  In sum, the agency 
concedes that the evaluated prices of Buck's primary and alternate 
proposals should have been calculated as $13,848,676 and $14,768,718, 
respectively.  Contracting Officer's Statement, Attachment.

The agency adds that the calculation of the transportation costs 
associated with PRIMEX's proposal included two errors (the existence 
of which is supported by the documentation in the agency report), and 
that such costs should have been calculated as $229,483, rather than 
$299,183.  Contracting Officer's Statement, at 9;  Contracting 
Officer's Statement, Attachment.

The agency concludes that, despite the substantial errors made in 
calculating the transportation costs associated with the offerors' 
proposals and their evaluated prices, "[Buck] was not prejudiced 
because neither the evaluated cost of [Buck's primary] proposal nor 
the evaluated cost of their alternate proposal is lower than PRIMEX's 
evaluated costs."  Contracting Officer's Statement at 13.  
Specifically, the agency points out that, had these errors not been 
made, it still would have selected PRIMEX's proposal as representing 
the best value, because of PRIMEX's superior technical score of 85 
points (as opposed to Buck's score of 55 points), the offerors' 
identical past performance scores of "excellent," and the cost 
advantage associated with PRIMEX's total evaluated price of 
$13,649,864, compared to Buck's total evaluated price of $13,848,676 
for its primary, and more competitive, proposal.

Buck contends that the agency could not properly consider the 
transportation costs associated with the offerors' proposals in 
determining which proposal represented the best value to the 
government, because the RFP did not include any clause specifically 
providing for the consideration of transportation costs.  Buck argues 
that its alternate proposal's price of $8,674,264, without the 
addition of any estimated transportation costs, should have been 
considered by the agency in making its best value determination.  

The agency argues that the consideration of transportation costs was 
consistent with the terms of the RFP, and that in any case, the 
protester was not prejudiced by the agency's consideration of such 
costs in determining which proposal represented the best value to the 
government.

Prejudice is an essential element of every viable protest, and we will 
not sustain a protest where the record does not establish prejudice.  
Brown & Root, Inc. and Perini Corp., a joint venture, B-270505.2, 
B-270505.3, Sept. 12, 1996, 96-2 CPD  para.  143 at 10.  The protester's 
argument that it was prejudiced by the consideration of transportation 
costs focuses on its view that the RFP did not provide for inclusion 
of such costs in the evaluation, and Buck's position that if its 
alternate proposal were considered at its price of $8,674,264 with a 
technical score of 55 points, and PRIMEX's proposal were considered at 
its proposed price of $13,420,380 with a technical score of 85 points, 
the agency would have selected Buck's proposal for award.  However, as 
pointed out by the agency, the cost to the government of accepting 
Buck's alternate proposal and contracting with Buck on that basis in 
fact would have included the cost to transport the ammunition to 
[DELETED], and because of this, such costs should be considered.  
Accordingly, the pertinent question with respect to prejudice is 
whether there is reason to conclude that Buck would have submitted a 
different offer that would have had a reasonable possibility of being 
selected for award had it known that the agency was going to consider 
transportation costs in determining which proposal represented the 
best value to the government.  Cf. Geonex Corp., B-274390.2, June 13, 
1997, 97-1 CPD  para.  225 at 5 (agency's waiver of a requirement in 
evaluating proposals was not prejudicial).  

Buck does not claim that its proposal would have been any different 
had the RFP expressly provided that transportation costs would be 
considered in determining which proposal represented the best value to 
the government.  Because PRIMEX's proposal's evaluated price (proposal 
price plus transportation costs) of $13,649,864 is lower than either 
Buck's primary proposal's evaluated price of $13,848,676 or its 
alternate proposal's evaluated price of $14,768,718, and, as detailed 
below, we find that the remainder of the agency's evaluation was 
reasonable, we agree with the agency that Buck was not prejudiced by 
the agency's consideration of transportation costs in making its best 
value decision.

Buck contends that the agency's determination in considering Buck's 
alternate proposal that it would incur a total of $6.1 million in 
transportation costs for shipping the ammunition to Buck's place of 
performance was unreasonable.  Buck argues, based upon its review of 
the detailed breakdown of the transportation costs furnished by the 
agency in its report, that "the port handling charges . . . appear 
excessive," and that by not specifically challenging the calculation 
of these costs, the cognizant contracting officer "violated his duty 
to evaluate costs reasonably and fairly."  Protester's Comments at 13.

A contracting officer, acting in good faith, has the right to rely on 
the information provided by transportation rate specialists.  
Fiber-Lam, Inc., B-237716.2, Apr. 3, 1990, 90-1 CPD  para.  351 at 3.[4]  
However, a contracting officer may not automatically rely upon such 
information if it leads to an unreasonable evaluation.  Id.

Here, as mentioned previously, the contracting officer requested and 
received the estimates of the transportation costs associated with 
each offeror's proposal from the agency's transportation office.  The 
traffic management specialist who calculated the transportation 
estimates explains that she used rates provided by the Military 
Traffic Management Command because that command is responsible for 
negotiating rates and providing freight management services to 
Department of Defense components.  Agency Report, tab 38, at 1.  The 
record reflects that in response to this protest and pursuant to the 
agency's request, the specialist "reviewed and recomputed the 
transportation cost for Buck," and that another transportation 
specialist "double checked the computations."  Id.  In this regard, 
although the breakdowns and bases for the transportation cost 
computations were provided by the agency in its report, and Buck "has 
reviewed the detailed corrections and recalculations provided by the 
Agency," Protester's Comments at 11, the protester has failed to 
identify any specific errors.  In sum, Buck's general assertion, after 
having had access to the agency report, that "the port handling 
charges . . . appear excessive," does not provide a basis for our 
Office to conclude that the agency acted unreasonably in light of the 
agency's explanations and the detailed reports and calculations 
provided by the agency to support its position.      
 
Buck argues that the agency's evaluation of its oral presentation and 
discussion response was unreasonable.  The evaluation of such matters 
is within the discretion of the contracting agency since the agency is 
responsible for defining its needs and the best method of 
accommodating them.  Marine Animal Prods. Int'l, Inc., B-247150.2, 
July 13, 1992, 92-2 CPD  para.  16 at 5.  In reviewing an agency's 
evaluation, we will not reevaluate proposals, but instead will examine 
the agency's evaluation to ensure that it was reasonable and 
consistent with the solicitation's stated evaluation criteria.  MAR 
Inc., B-246889, Apr. 14, 1992, 92-1 CPD  para.  367 at 4.  An offeror's mere 
disagreement with the agency does not render the evaluation 
unreasonable.  McDonnell Douglas Corp., B-259694.2, B-259694.3, June 
16, 1995, 
95-2 CPD  para.  51 at 18.  Based upon our review of the record, including 
the videotape of Buck's oral presentation provided by the agency with 
its report, we have no basis on which to determine the agency's 
evaluation unreasonable.

The agency evaluated each offeror's oral presentation and discussion 
response with regard to the demil process, safety, security, and 
environmental concerns, with each of these areas being worth a maximum 
of 25 points.  Agency Report, tab 22, SSEB evaluation 
worksheets/forms.  The record includes detailed evaluation forms that 
set forth specific matters under each of the four areas and the range 
of points to be awarded based upon the content of the offerors' oral 
presentations and discussion responses.  Id.

Buck's oral presentation received 18 points for the portion addressing 
the demil process, 4 points for safety, 3.5 points for security, and 9 
points for environmental concerns.  Id.  The relatively low scores 
received by Buck for the portions of its oral presentation addressing 
safety and security concerns largely were due to the SSEB's view that 
Buck had failed to address the matters outlined in the RFP for 
discussion by the offerors during their oral presentations.  Id.   
Buck's low score of 9 points for the portion of its proposal 
addressing environmental concerns largely was due to the SSEB's 
conclusion that Buck's discussion of waste streams and required 
environmental permits was incomplete.  Id.  The agency summed up 
Buck's oral presentation as "concentrating more on who they were than 
on what the Government specified they wanted."  Agency Report, tab 33, 
Source Selection Decision Document, at 2.

The agency provided Buck with a detailed list of discussion questions 
by letter dated May 26.  Agency Report, tab 24.  The agency noted in 
this letter, for example, that while "[Buck's] presentation addressed 
[Buck's] history and a general demil process . . . [it] omitted a good 
portion of Section L requested information."  The letter thus 
requested, among other things, that Buck provide responses to the 
specific areas requested in section L of the RFP.  Id., at 1.

The agency evaluated Buck's response to the discussion questions, and 
increased Buck's overall score from 34.5 to 55 points.  Agency Report, 
tab 28.  Specifically, the agency raised Buck's scores for the 
portions of its oral presentation and discussion response addressing 
the demil process from 18 to 22 points, safety from 4 to 7 points, 
security from 3.5 to 9 points, and environmental concerns from 9 to 17 
points.  Id.  

Buck protests the evaluation of its oral presentation and discussion 
response regarding safety, security, and environmental concerns.  For 
example, referring to safety concerns, Buck states in it comments (at 
16) that:

     [w]hile these additional points may not have been in the format 
     that the Army desired and may not have reached the level of 
     detail for an excellent score, a 28% score [7 out of 25 points] 
     on safety issues . . . is unreasonably low for a contractor that 
     the Source Selection Authority recognizes as a 'world-class, 
     multinational firm . . . with an excellent record of past demil 
     performance.'

Based upon our review of the record, we consider the protester's 
arguments to constitute nothing more than its mere disagreement with 
the agency's evaluation. Buck concedes that its oral presentation and 
discussion response regarding safety concerns were not in the form 
requested by the agency, and more importantly, did not include the 
detail requested by the agency.  As pointed out by the agency, there 
is nothing in Buck's oral presentation or discussion response that 
addresses Buck's compliance "with the contractual safety regulation, 
DOD 4145.26M, DOD Contractors' Safety Manual for Ammunition and 
Explosives" as required by the RFP (at 26).  Agency Report, tab 37, at 
1-2.  Rather than discussing its facility siting as requested by the 
RFP (at 26), Buck's discussion response provided only that "[o]ur 
plant and all storage, handling, disassembly, and disposal facilities 
have been approved by [DELETED] authorities for specific amounts of 
explosives in every room or work space" and offered to provide "a site 
map . . . if desired."  Agency Report, tab 27.  Additionally, rather 
than providing any discussion of the "specific industrial safety and 
regulatory compliance issues related to this contract" as requested by 
the RFP (at 26), Buck stated only that "[w]e comply with all [DELETED] 
and NATO Safety Regulations."  Id.  In sum, because the portions of 
Buck's oral presentation and discussion response addressing safety 
fail, in some instances, to provide the information specifically 
requested by the RFP, and in other instances, appear to be very 
general, we have no basis to conclude that the agency's evaluation of 
this aspect of Buck's oral presentation and discussion response was 
unreasonable. 

The portions of Buck's oral presentation and discussion response 
regarding security is similar to the portion addressing safety.  For 
example, the first of four matters set forth in the RFP to be 
addressed by offerors with respect to security concerned compliance 
with a specific Department of Defense regulation regarding "physical 
security of sensitive conventional arms, ammunition, and explosives."  
RFP at 26.  Buck's oral presentation and discussion response do not 
even mention this regulation.  Again, because Buck's oral presentation 
and discussion responses either do not provide the information 
specifically requested by the RFP or appear to be very general, we 
have no basis to conclude that the agency's evaluation of this aspect 
of Buck's oral presentation and discussion response was unreasonable.   

Buck, while conceding that the portions of its oral presentation and 
discussion response that address the RFP's environmental concerns also 
"may not have been in the format that the Army desired and may not 
have reached the level of detail for an excellent score," argues that 
its score of 17 out of 25 points "is unreasonably low."  Protester's 
Comments at 19.  In light of our above conclusions, we need not 
determine the reasonableness of this aspect of the agency's 
evaluation.  That is, even if Buck's oral presentation and discussion 
response addressing the RFP's environmental concerns received a 
perfect score of 25 points, a total score of 63 points (55 points as 
evaluated plus the 8 remaining points available for environmental 
concerns) would be considerably less than PRIMEX's total score of 85 
points.  Given PRIMEX's higher technical score, the offerors' equal 
ratings of "excellent" for past performance, and PRIMEX's lower 
evaluated price (proposal price plus transportation costs) of 
$13,649,864 when compared to Buck's primary proposal's evaluated price 
of $13,848,676 or its alternate proposal's evaluated price of 
$14,768,718, Buck was not prejudiced by the evaluation in this area.

The protest is denied.

Comptroller General
of the United States   

1. The solicitation defined demilitarization, or "demil," as

            [t]he act of removing the military offensive or defensive 
            advantages of ammunition and explosives, which may or may 
            not include the disposal of the item.

RFP SOW at 2.  

2. It is unclear from the record why the agency considered $13,604,463 
to be Buck's proposed price, rather than $13,604,694 as set forth in 
Buck's proposal.

3. The solicitation provided that LOCAR would range from 0 to 1, with 
a rating of 0 reflecting a low level of confidence, a rating of .5 
being neutral, and a rating of 1 reflecting a high level of 
confidence.  RFP Amendment No. 0001, at 30.

4. Buck does not assert that the contracting officer acted in bad 
faith.