TITLE:  Government of Harford County, Maryland, B-283259; B-283259.3, October 28, 1999
BNUMBER:  B-283259; B-283259.3
DATE:  October 28, 1999
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Government of Harford County, Maryland, B-283259; B-283259.3, October 28,
1999

Decision

Matter of: Government of Harford County, Maryland

File: B-283259; B-283259.3

Date: October 28, 1999

James J. McCullough, Esq., Joel R. Feidelman, Esq., and Catherine E.
Pollack, Esq., Fried, Frank, Harris, Shriver & Jacobson, and Robert S.
McCord, Esq. Government of Harford County, Maryland, for the protester.

Howard S. Stevens, Esq., and Douglas G. Worrall, Esq., Wright, Constable &
Skeen, for the City of Aberdeen, Maryland, an intervenor.

Vera Meza, Esq., and David Scott, Esq., U.S. Army Materiel Command, for the
agency.

Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. General Accounting Office has jurisdiction to consider protest where,
notwithstanding the concomitant sale of government property, one of
procurement's main objectives was acquisition of potable water and
wastewater treatment services to Army for a 10-year period.

2. Protest that agency improperly required a particular technical approach
and that neither solicitation nor discussions alerted protester to the
evaluation impact of not proposing that approach is denied where protester
was aware that solicitation, which stated that this particular technical
approach would be the subject of the second most heavily weighted evaluation
factor, was silent as to evaluation impact of not adopting the approach, yet
protester did not file a timely solicitation challenge; even assuming agency
error in this part of evaluation, it did not prejudice protester's chances
of receiving award.

3. Protest that awardee's proposal contained material misrepresentations
that were relied upon by agency in evaluating proposals is denied where
examination of the awardee's proposal reveals no misrepresentations.

DECISION

The Government of Harford County, Maryland (the County) protests the award
of a contract to the City of Aberdeen, Maryland (the City), by the
Department of the Army, pursuant to request for proposals (RFP) No.
DAAD05-98-R-0524. The protester contends that the evaluation of proposals
was unreasonable, that discussions with it were inadequate, and that the
City made material misrepresentations in its proposal.

We deny the protest.

Issued on February 27, 1998, the RFP solicited offers from public utility
concerns for the purchase of Aberdeen Proving Ground's (APG) water and
wastewater treatment facilities and for provision of potable water and
wastewater services. [1] The RFP contemplated the sale of APG's water
treatment facilities and its wastewater treatment facilities to one utility
concern pursuant to the Army's "Privatization of Government-owned Utility
Systems" initiative. RFP sect.sect. C.1.1, C.2 (water), C.2 (wastewater). The RFP
also contemplated the award of one 10-year contract (with automatic renewal
for successive 5-year periods) for both potable water and wastewater
services from the utility that purchased the APG water and wastewater
treatment facilities. [2] Id. sect.sect. C.1.1, C.13, L.9. The RFP stated that both
potable water and wastewater services were to be provided to APG on a "cost
of services" basis. Id. sect.sect.  B.2, H.1 (water), and H.1 (wastewater).

The RFP stated that the contract would be awarded to the offeror whose
proposals were technically acceptable and offered the best overall value to
the government, price and other factors considered. [3] RFP amend. 2,
sect. M.2.2. In descending order of importance, the technical evaluation
criteria for both wastewater services and potable water proposals were:
(a) technical and management approach; (b) conceptual plan for joint use;
(c) comparable experience; and (d) financial capability. The RFP stated that
"conceptual plan for joint use" and "technical and management approach" were
significantly more important than "comparable experience" and "financial
capability," that "technical and management approach" was slightly more
important than "conceptual plan for joint use," and that "comparable
experience" was slightly more important than "financial capability." The RFP
stated that all evaluation factors combined were significantly more
important than price. Id. sect. M.2.1. The RFP also stated that price would not
be point-scored and would increase in importance the closer the final
evaluated technical scores were to one another. Id. sect. M.2.2.

Three proposals were received by the June 24, 1998 closing date, and
negotiations were held with all three offerors. [4] Best and final offers
(BAFO) were received in November 1998, and evaluated by the agency. Agency
Report, Tab D, exh. 35, Price Negotiation Memorandum, at 1-2. The County's
BAFO received a total technical evaluation score of 161 points (out of a
possible 200 total points) at a total price of $1,541,710, while the City's
BAFO received a total technical score of 195 points at a total price of
$1,381,938. Agency Report, Tab D, exh. 36, Debriefing Harford County
Government, at 7. The technical scores of the two proposals were in a
virtual tie (with a one-point advantage to the County) except for the
"conceptual plan for joint use" factor; under that factor, the City received
a perfect score (35 points), while the County received zero points, because
it did not submit a conceptual plan for joint use. The evaluation team
recommended that the contract be awarded to the City because its proposal
was the highest rated on technical merit and its proposed price was the
lowest; the contracting officer concurred. Agency Report, Tab D, exh. 35,
supra, at 3-4; Agency Report, Tab D, exh. 36, supra, at 7, 10. On July 8,
1999, the contract was awarded to the City. The County was debriefed and
protested shortly thereafter. [5]

At the outset, the Army asserts that we have no authority to resolve this
protest because the RFP was for the sale or transfer of government property.
[6] Therefore, the Army contends that this is a nonstatutory protest which
we may not review absent the consent of the Secretary of the Army (see 4
C.F.R. sect. 21.13(a) (1999)), which has not been given. Agency Request for
Dismissal at 1-2. We disagree. Under the Competition in Contracting Act,
31 U.S.C. sect. 3551(1) (1994), our Office has authority to review protests
concerning the procurement and award of contracts for property or services
by a federal agency. It is clear from the plain language of the RFP that the
procurement had a dual purpose: (1) to transfer ownership of APG's water and
wastewater facilities to a regulated utility and (2) to contract with the
utility to which APG's water and wastewater facilities were transferred for
the provision of water and wastewater treatment services to APG for a
10-year period. RFP sect.sect. B, C.1.1, C.1, C.19 (water), and C.1, C.23
(wastewater). Moreover, it is undisputed that APG will continue to need
potable water and wastewater treatment services and will acquire such
services under the contract awarded pursuant this RFP to the transferee. In
this regard, the prices at issue in this protest (i.e., the offerors' prices
set out above) are prices that the government will pay to acquire services
(rather than prices that the government will receive, as in a sale of
government property). We also note that the Army invoked the authority of 10
U.S.C. sect. 2304(c)(1), a procurement statute, as its authority for procuring
the services from a limited number of responsible sources. Agency Report,
Tab D, exh. 10, Justification Review Document for Other Than Full and Open
Competition, at 6. Because one of the main objectives of the RFP was to
obtain water and wastewater services, we conclude that we have jurisdiction
to hear the protest. See Ship Analytics, Inc. Dist. 2; Marine Eng'rs
Beneficial Ass'n--Recon., B-227084.3, B-227084.4, Dec. 15, 1987, 87-2 CPD
para. 590 at 2.

Basically, the County protests that the evaluation was unreasonable and not
in accord with the RFP's stated scheme and that negotiations with it were
inadequate. The protester specifically contends that the agency incorrectly
downgraded its proposal under the "conceptual plan for joint use"
factor--giving it zero of the 35 points available--for not including a
conceptual plan for joint use of wastewater facilities and that discussions
with it on this perceived deficiency were inadequate. The protester also
alleges that the Army improperly converted the RFP's "best value" evaluation
scheme to a "low cost technically acceptable" scheme by rating both the
County's and the City's proposal s at or near the maximum available scores
in the evaluation of the "technical and management approach" and "financial
capability" factors, notwithstanding the (alleged) fact that the protester's
proposal was clearly superior to the awardee's in both areas of the
evaluation. The County also asserts that the City made a number of material
misrepresentations in its proposal.

Our Office will question an agency's evaluation of proposals only if it
lacks a reasonable basis or is inconsistent with the RFP's stated evaluation
criteria. DAE Corp., Ltd., B-257185, Sept. 6, 1994, 94-2 CPD para. 95 at 4.
Despite concerns about the handling of this matter, discussed below, we do
not find that either the evaluation of proposals or the conduct of
discussions provides a basis to sustain the protest here.

The protester contends that its wastewater services proposal was unfairly
downgraded because it did not include a conceptual plan for joint use. The
County points out that a joint-use plan was optional, at the discretion of
the offeror, under the terms of the RFP. Therefore, the County asserts that
the technical evaluation panel's (TEP) downgrading its wastewater proposal
for not including such a plan was inconsistent with the RFP's terms. The
protester further contends that, assuming for the sake of argument that its
proposal was deficient in this area, then the discussions were misleading
because they did not inform it that the Army required it to propose a
joint-use plan. Initial Protest at 10-13.

Concerning joint use of wastewater facilities, the RFP's proposal
preparation instructions stated, in relevant part:

Offerors may present a conceptual plan for any feasible joint use of all or
portions of the acquired wastewater system to serve the general public, or
the use of any of the Offeror's current or expanded facilities to provide
wastewater utility service to the Installation.

RFP sect. L.11.2.5 (wastewater). The RFP also described the key elements that a
conceptual plan for joint use should address, including, among other things,
"a rationale on why such joint use is needed (or desirable) and would be
mutually beneficial to the Offeror, the Government and the general public."
Id. The RFP included similar provisions regarding joint use of potable water
treatment facilities. Id. sect. L.12.2.5.

The County included a plan for joint use of facilities in its initial
potable water proposal, but not in its initial wastewater proposal. Agency
Report, Tab D, exh. 38, Harford County Technical Proposal for Potable Water
Utility Service, at 41-43; Agency Report, Tab D, exh. 39, Harford County
Technical Proposal for Wastewater Utility Service, at 46. The TEP awarded
the County's potable water proposal 35 points (out of 35 available points)
but, because the wastewater proposal included no joint-use plan, the TEP
awarded it zero points under the "conceptual plan for joint use" factor.
Agency Report, Tab D, exh. 14, Initial Evaluation (Harford County's
Proposals), at 1. The contracting officer sent the County a letter listing
deficiencies the TEP found in its potable water and wastewater proposals.
Agency Report, Tab D, exh. 20, Letter from Contracting Officer to Protester
(October 21, 1998). No deficiency was listed concerning the County's potable
water proposal's joint-use plan. However, the "deficiencies" letter listed
several deficiencies in the County's wastewater proposal, including:

d. CATEGORY: Conceptual Plan for Joint Use of Facilities.
In part 5 the proposal stated no new connections are proposed at this time.
If you have future plans for new connections, I suggest you submit a
conceptual plan.

Id. at 2. The County responded that it "has no plans to offer wastewater
service outside the boundaries of the APG area" and did not revise this area
of its proposal. Agency Report, Tab D, exh. 21, Harford County's Response to
Questions, at 4. Based upon the County's responses to the "deficiencies"
letter, the TEP upgraded the County's proposals' scores under most
evaluation factors but, because the County did not revise its wastewater
proposal to include a joint-use plan, the TEP did not change the zero-point
rating it had given the wastewater proposal under the "conceptual plan for
joint use" factor. Agency Report, Tab D, exh. 24, Revised Summary Rating
Worksheet (Harford County), at 1-2.

We agree with the protester that, as the agency actually evaluated
proposals, an offeror that did not propose a joint-use approach had little
realistic prospect of award, notwithstanding the RFP language indicating
that a joint-use approach was not mandatory. In this regard, the agency did
not state its needs and its preferences clearly. We also agree with the
protester that the discussion question quoted above did not eliminate the
lack of clarity, since it suggested that the offeror submit a conceptual
plan if (which the County read to mean "only if") the offeror had future
plans that would entail joint use. Nonetheless, we do not believe that the
record provides a basis to sustain the protest.

First, the protester was on notice of the importance that the agency
attached to submission of a conceptual plan for joint use. As noted above,
the RFP listed "conceptual plan for joint use" as a technical evaluation
factor and indicated that it was the second most important evaluation factor
for both potable water and wastewater treatment proposals. RFP amend. 2,
sect.sect. M.2.1, M.2.2. Reading the RFP's proposal preparation instructions in
conjunction with the RFP's evaluation scheme, it should have been clear to
offerors that the agency was interested in obtaining proposals for joint use
of facilities, where joint use was feasible, and would accord great weight
to joint-use plans in the evaluation. While the protester is correct that
other language of the RFP indicated that offerors were not required to
propose joint use, the RFP was silent about how the agency would rate
proposals that were not premised on joint use. We would note that nowhere in
the extensive pleadings it submitted has the protester pointed to an RFP
provision that the protester believes indicated how the agency would
evaluate a proposal under the heavily weighted "conceptual plan for joint
use" factor, if an offeror did not propose joint use. To the extent that the
protester believes that the RFP should have provided that such proposals
would receive full credit (i.e., 35 points) under this factor, it is raising
a defect, or a patent ambiguity, in the solicitation for the first time
after award, and such a challenge is untimely. 4 C.F.R. sect. 21.2(a)(1);
Motorola, Inc., B-277862, Dec. 3, 1997, 97-2 CPD para. 155 at 7.

Second, the record indicates that even acceptance of the protester's
argument would not affect the outcome of the competition. Our Office will
not sustain a protest unless the protester demonstrates a reasonable
possibility that it was prejudiced by the agency's actions.
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
Statistica, Inc. v. Christopher, 102 F. 3d 1577, 1581 (Fed. Cir. 1996).
Here, as noted above, the protester's technical score was 34 points lower
than the awardee's, and its price was somewhat higher than the awardee's.
Because of this context, a change in the assignment of points under the
"conceptual plan for joint use" factor would have no possible impact unless
the protester were to receive every one of the 35 points available under
that factor. Yet, in our view, nothing in the protester's arguments would
preclude the agency from assigning somewhat more points to a proposal such
as the City's--a good proposal for joint use, with a fallback proposal
without joint use--than to one such as the County's--a good proposal that
offered only non-joint use. Indeed, even assuming, arguendo, that the agency
should have assigned the County all 35 of the available points, this would
simply create a virtual tie between the two proposals (albeit with a
one-point advantage to the County), and in that situation, and in light of
the awardee's lower price, we believe that the agency could still reasonably
have selected the proposal that included the joint-use arrangement.
Accordingly, we do not believe that any error in the agency's evaluation
under the "conceptual plan for joint use" factor prejudiced the protester's
chances of receiving award. [7]

The protester next contends that the Army evaluated proposals improperly
under the "technical and management approach" and "financial capability"
factors. The County alleges that the TEP unreasonably rated its proposal and
the City's at or near the maximum available scores under these two factors,
when in fact the County's proposal was clearly superior to the awardee's in
both areas, thereby converting the RFP's announced "best value" evaluation
scheme to a "low cost technically acceptable" rating scheme. Initial Protest
at 13-14.

Essentially, the County alleges that the agency used a pass/fail grading
system in its technical evaluation, giving the highest possible ratings to
any proposal that was technically acceptable, so that cost became the
determining factor in the selection decision. While the protester limits it
argument to the two evaluation factors that it believes best support its
protest, we have reviewed the entire evaluation record, including evaluation
of the two factors cited by the protester, and found that it does not
support the protest.

The record shows that the individual TEP members evaluated proposals on a
number of elements within each evaluation factor, made narrative comments on
many features (both positive and negative) of the proposals, and gave
proposals point scores reflecting their individual assessments of relative
technical merit under each factor. The TEP then arrived at a consensus
rating score and made narrative comments for each proposal under each
evaluation factor. See generally Agency Report, Tab D, exh. 14, supra, and
exh. 15, Initial Evaluation (City of Aberdeen's Proposals). Thus, it is
clear that the TEP did not limit its review to whether a proposal was merely
acceptable under each evaluation factor.

For example, in evaluating "comparable experience," the TEP downgraded the
City's initial wastewater proposal slightly, giving it 14 of 15 available
points, because the City's experience was limited and the proposal did not
address lift capacity; the TEP downgraded the City's initial potable water
proposal more heavily, giving it only 10 of 15 available points, because the
City's experience was limited to its own small capacity system and was also
limited to a groundwater source (i.e., wells) rather than surface water.
Agency Report, Tab D, exh. 15, supra, at 1-2. When the City revised its
wastewater proposal to address lift capacity during discussions, the TEP
upgraded its wastewater proposal score, giving it one additional point;
since the City did not revise its potable water proposal with regard to its
limited experience, the TEP did not upgrade its potable water proposal
score. Agency Report, Tab D, exh. 25, Revised Evaluation (City of Aberdeen's
Proposals), at 1-2. Likewise, the TEP downgraded both the County's initial
wastewater and potable water proposals slightly, giving them 13 and 14
points, respectively, for "comparable experience." Agency Report, Tab D,
exh. 14, supra, at 1-2. When the County revised its proposals in response to
concerns expressed by the agency during discussions, the TEP revised the
County's scores upward to 15 points for each proposal under this factor.
Agency Report, Tab D, exh. 24, supra, at 1-2. Clearly, the TEP did not
merely examine the proposals to see if they passed some minimum level of
acceptability.

A second example is the evaluation of "technical and management approach,"
one of the two factors relied upon by the County in alleging that a
pass/fail system was used. The TEP downgraded the City's initial wastewater
proposal slightly, giving it 38 of 40 available points, because it did not
address union agreements; the TEP gave the City's initial potable water
proposal the full 40 points. Agency Report, Tab D, exh. 15, supra, at 1-2.
The City addressed the agency's concern regarding its wastewater proposal,
and the TEP revised its score upward to reflect that revision. Agency
Report, Tab D, exh. 25, supra, at 1. The TEP also downgraded the County's
initial wastewater and potable water proposals, giving them 36 and 35
points, respectively, because of several deficiencies found in each. Agency
Report, Tab D, exh. 14, supra, at 1-2. When the County revised both
proposals, satisfying most but not all of the agency's concerns, the TEP
revised its scores upward to 38 points for each proposal. Agency Report,
Tab D, exh. 24, supra, at 1-2. This example again illustrates that the Army
did not use a pass/fail system.

The protester asserts that its potable water proposal was clearly superior
to the City's, because the County proposed to use the County's modern
potable water treatment facilities, instead of APG's "antiquated" water
treatment facilities. The protester also asserts that its proposal was
better since the City has never operated a surface water plant. Furthermore,
the protester contends that the City's only other water source, other than
the APG facility, is the City's well field, which cannot supply APG's
potable water demand if the APG water treatment facilities are inoperable or
if water is needed during an emergency, such as a fire. Initial Protest at
14-15. The protester also asserts that both of its proposals should have
received higher ratings than the City's proposals under "financial
capability" because the County has a better bond rating and more financial
resources that it can draw upon to finance the purchase of APG's wastewater
and potable water treatment facilities. Id. at 16.

As noted above, we will question the agency's evaluation of proposals only
if it is unreasonable. DAE Corp., Ltd., supra, at 4. The protester's mere
disagreement with the Army over the technical evaluation of proposals does
not establish that the evaluation was unreasonable. Cubic Applications,
Inc., B-274768 et al., Jan. 2, 1997, 97-1 CPD para. 98 at 3. After reviewing the
entire record, including the evaluation record, the agency report, and the
briefs submitted by the parties, we conclude that the protester's assertions
merely represent its disagreement with the TEP and, therefore, provide no
reason to find the evaluation unreasonable.

The record shows that the TEP believed that the City's proposal to use APG's
existing water treatment facility represented "a sound technical solution"
and noted that the City's joint-use plan was technically and economically
feasible. Agency Report, Tab D, exh. 15, supra, at 2. The TEP was also aware
that the City, at its own cost, intended to provide approximately $4 million
to upgrade and expand the APG water treatment facility. Id.; Agency Report,
Exh. D, Tab 18, Privatization Letter Report No. 6, at 4. Because the City
proposed to modernize the APG plant, the agency reasonably gave the City's
proposal to use that APG plant an excellent rating. RFP sect. L.12.2.5. The
record shows that the TEP was well aware that the City's experience was
limited to its own groundwater source (i.e., a well system) and, in fact,
the TEP reasonably downgraded the City's potable water treatment proposal
under "comparable experience" because of it. Agency Report, Tab D, exh. 15,
supra, at 2. The record also shows that the TEP considered the City's "A"
bond rating and determined that it had no concerns about the City's ability
to issue revenue bonds to finance capital improvements. Id. at 1-2; Agency
Report, Exh. D, Tab 18, supra. In this regard, the agency reports that the
City was determined to be fully capable of borrowing sufficient funds if
needed and the contract is structured so that the utility can obtain
low-risk financing. Contracting Officer's Statement at 6, 11-12; Agency
Report at 4. Moreover, the Army plainly does not agree with the assertion
that the City does not have sufficient water to meet its needs in
emergencies or when the former APG water treatment plant is down. In this
regard, the agency reports that the City can rely on several additional
water sources based upon written and verbal agreements and past practice
(see discussion below). Agency Supplemental Report at 3. The protester's
mere disagreement with the agency on the technical merit of the proposals
provides no basis for finding the evaluation unreasonable.

Finally, the County contends that the Army's evaluation and award decision
were based upon material misrepresentations in the City's potable water
proposal concerning its ability to provide potable water to APG in the event
that the former APG water treatment facilities are down (for example, when
improvements are being made) or in emergency situations (for example floods,
droughts or fires). The protester contends that the City's proposal falsely
represents that there are alternate water sources in neighboring
jurisdictions that it can tap in emergency situations. The protester states
that it has the only written agreement to provide the City with additional
water and the amount of water that it is required to provide is not adequate
for such emergency situations. The protester also asserts that, even if the
City were able to produce written agreements with other municipalities for
the supply of water, there would be no way for the City to get that water,
except through the County's distribution system. Second Supplemental
Protest, Sept. 7, 1999, at 12-19. This protest argument fails for several
reasons, as discussed below.

The RFP required offerors to provide a conceptual plan showing how down-time
and the need for emergency response, including fire protection, would be
addressed. RFP sect. L.12.2.2(b). The City's potable water proposal stated that
it currently manages its own (and that it intends to manage APG's) down-time
and emergency water supply events "through the use of back-up equipment and
agreements with the neighboring municipalities of Harford County and Havre
de Grace." Agency Report, Tab D, exh. 40, City of Aberdeen Technical
Proposal for Potable Water Utility Service, at 11. The proposal stated that
in the event of a water quality emergency occurring at either the City's
wells or the former APG water treatment facilities, the City would rely upon
neighboring municipalities for help in meeting its and APG's water needs, if
necessary The proposal listed several potential water sources, including the
County, with which the City has agreements for additional water. Id. at 12.
Regarding flood or drought emergencies, the proposal explained that existing
agreements between neighboring municipalities and APG "will be solidified to
insure an adequate, safe water supply for residents and businesses
throughout the area"; stated that plans will be developed and lines of
communication and agreements among the neighboring communities will be
documented; and indicated that a public rationing plan would be developed.
Id.

While we have sustained protests where the agency's evaluation and selection
relied upon representations made in the awardee's proposal that specified
resources were available, when, in fact, the awardee knew that those
resources would not be available for contract performance, but failed to
disclose that information to the agency before contract award, see, e.g.,
Dual, Inc., B-280719, Nov. 12, 1998, 98-2 CPD para. 133 at 3-6, we find no such
misrepresentations in the City's proposal. First, the RFP required only a
conceptual plan for down-time and emergency response, but did not require
the City to submit any written agreements with its potential additional
sources for potable water. Thus, the City's statements that it will make
emergency plans and will solidify its existing agreements were sufficient to
meet the RFP's requirements. Second, the record shows that the neighboring
municipalities have in the past helped each other by selling water to other
communities, including the City and APG, in times of shortage. See, e.g.,
Agency Supplemental Report at 3; see also Intervenor's Supplemental
Comments, Sept. 29, 1999, at 3. In other words, past practice has been for
the various sources of potable water to back each other up, and it is not
relevant whether such cooperation was accomplished pursuant to written or
oral agreements. Thus, the Army reasonably concluded that the City could
handle down-time and emergency situations. Agency Supplemental Report at 3.
Third, the protester's argument is premised upon the former APG water
treatment facilities being taken out of service when the City makes
improvements to them. Second Supplemental Protest, Sept. 7, 1999, at 13.
However, the City points out that it has not completed plans for making
improvements to the APG facilities and that it may be able to make some
improvements without taking those facilities out of service. Intervenor's
Supplemental Comments, Sept. 29, 1999, at 4-5. The City also points out that
it will be able to maintain the water pressure needed for fire protection by
using, among other things, the water stored in its elevated water tanks. Id.
at 3. We cannot conclude that the representations made in the City's potable
water proposal were false or that the agency's reliance upon them in
determining that the proposal presented a "sound technical solution" was
misplaced.

The protest is denied.

Comptroller General
of the United States

Notes

1. The RFP contained three sets of provisions applicable to: (1) both water
and wastewater treatment services and facilities; (2) water treatment
services and facilities alone; and (3) wastewater treatment services and
facilities alone. Consequently, the RFP included the same or similar
provisions in more than one place. Henceforth, citations to the RFP will
include "(water)" where the citation is to a water treatment services and
facilities provision and "(wastewater)" where the citation is to a
wastewater treatment services and facilities provision; if the cited RFP
provision applies to both water and wastewater treatment services and
facilities, the citation will include no parenthetical notation.

2. Alternatively, the RFP stated that two separate utility services
contracts--one for potable water and one for wastewater treatment--would be
awarded to a single utility. RFP sect. L.8.

3. Separate proposals were required for wastewater services and potable
water services. RFP sect.sect.  L.11, L.12.

4. Only the evaluations of the protester's and the awardee's proposals are
germane to the protest; thus, evaluation of the third offer will not be
discussed in this decision.

5. On July 23, the contracting officer issued a stop work order to the City
of Aberdeen.

6. The Army transferred title of APG's water and wastewater treatment
facilities to the City of Aberdeen pursuant to 10 U.S.C. sect. 2688(a) (Supp. IV
1998), which authorizes conveyance of a government-owned utility system to
certain types of non-federal utilities. Such conveyance is required to be
carried out through the use of competitive procedures where, as here, more
than one utility has expressed interest in obtaining the utility systems. 10
U.S.C. sect. 2688(b).

7. We note as well that the record indicates that the protester would not
have offered a favorable joint-use arrangement, even if it had known that
the agency preferred that. The County elected not to propose a joint-use
plan for wastewater treatment (although it proposed one for potable water
facilities) because its wastewater treatment plant is so far away from APG
that the cost of moving wastewater to the County facility for treatment
would exceed any projected cost savings that otherwise might be realized
from the joint use of facilities. Protester's Comments at 19-20. Nothing in
the record suggests that the County could have devised a desirable joint-use
arrangement for wastewater, even if the agency had been clearer, either in
the solicitation or the discussions, about its preference for one. To the
contrary, the County states that, had it submitted a joint use plan, its
"conceptual plan for joint use for wastewater actually would have been less
advantageous to the Army than its base proposal." Id. at 22.