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.