TITLE:  LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000
BNUMBER:  B-283825; B-283825.3
DATE:  February 3, 2000
**********************************************************************
LeBoeuf, Lamb, Greene & MacRae, B-283825; B-283825.3, February 3, 2000

Decision

Matter of: LeBoeuf, Lamb, Greene & MacRae

File: B-283825; B-283825.3

Date: February 3, 2000

James L. Feldesman, Esq., Edward T. Waters, Esq., and Kathy S. Ghiladi, Esq,
Feldesman, Tucker, Leifer, Fidell and Bank, for the protester.

Thomas P. Humphrey, Esq., James J. Regan, Esq., John E. McCarthy, Esq.,
Daniel R. Forman, Esq., and Reed M. Brodsky, Esq., Crowell and Moring, for
Winston and Strawn, an intervenor.

Gena Cadieux, Esq., and Patricia D. Graham, Esq., Department of Energy, for
the agency.

Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Application for admission of protester's counsel to a General Accounting
Office (GAO) protective order is granted where, based on a review of the
record, GAO concludes that protester's counsel is not involved in
competitive decision-making, and their admission does not otherwise pose an
unacceptable risk of inadvertent disclosure of protected material.

2. Protest that the contracting agency improperly selected awardee despite
an alleged organizational conflict of interest is denied where the record
does not support this allegation.

DECISION

LeBoeuf, Lamb, Greene & MacRae protests the award of a contract to Winston
and Strawn under request for proposals (RFP) No. DE-RP01-99GC30789, issued
by the Department of Energy (DOE) for professional legal services. LeBoeuf
primarily argues that the award was improper because Winston and Strawn has
an unavoidable organizational conflict of interest (OCI).

We deny the protest.

Background

Pursuant to the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C.
sect. 10133(a) (1994), DOE is in the process of evaluating a site at Yucca
Mountain, Nevada, for a high-level waste and spent nuclear fuel repository.
[1] The repository is needed in order to safely dispose of high-level
nuclear waste, mainly from defense activities, and spent nuclear fuel from
both civilian and defense activities. [2] DOE Motion to Dismiss, Oct. 22,
1999, at 1; Contracting Officer's (CO) Statement, Nov. 29, 1999, at 1. The
NWPA provides for the siting, construction, and operation of repositories
for spent nuclear fuel. See 42 U.S.C. sect.sect. 10101 et seq. The Act also provides
that utilities are primarily responsible for paying the costs of disposal of
their spent fuel, while the federal government has the responsibility of
protecting the public health and safety and the environment, while providing
disposal services. 42 U.S.C. sect.sect. 10131(a)(4), (5). The NWPA establishes a
mechanism for payment of these costs by authorizing DOE to enter into
contracts with utilities and others generating spent nuclear fuel, under
which the utilities agree to pay fees into the Nuclear Waste Fund in return
for disposal of their spent nuclear reactor fuel. 42 U.S.C. sect. 10222(a).
These contracts are referred to as the Standard Contracts. See 10 C.F.R.
Part 961 (1999). [3]

The NWPA also mandates a process for DOE first to decide whether or not to
recommend a site for a permanent repository and then to seek a license from
the Nuclear Regulatory Commission (NRC) to construct and operate the
repository. 42 U.S.C. sect.sect. 10132-10145. The NWPA contemplated that a permanent
repository was to begin accepting spent nuclear fuel by January 31, 1998. 42
U.S.C. sect. 10222(a)(5)(B). Despite efforts by DOE to meet that deadline,
however, the agency concedes that the scientific and technical inquiry
necessary to make a recommendation is not yet completed. CO Statement at 2;
Agency Report (AR), exh. 11, Declaration of Assistant Manager, Office of
Licensing and Regulatory Compliance at the Yucca Mountain Site
Characterization Office (RCYMSCO), Nov. 23, 1999, at para. 3. DOE states that a
repository is not yet ready to accept spent nuclear fuel and estimates that
a facility will not be available before 2010. DOE Motion to Dismiss at 2.

Since 1991, TRW Environmental Safety Services, Inc. has been DOE's
management and operating (M&O) contractor for DOE's Office of Civilian
Radioactive Waste Management (OCRWM). TRW has been involved on DOE's behalf
in studying the site at Yucca Mountain to determine whether it is suitable
for a nuclear waste repository. Since the success of the project depends on
various regulatory bodies accepting DOE's technical conclusions, lawyers
have been assisting the program to determine what information needs to be
generated in order to satisfy legal requirements and how to present the
information to the applicable regulatory bodies, and providing other
ancillary legal advice and assistance. [4]

In May 1992, TRW issued a competitive solicitation that resulted in the
award of a subcontract to Winston and Strawn to provide some of that legal
advice and assistance. Recently, DOE determined that it could better manage
the work being performed by TRW's subcontractor (i.e., Winston and Strawn)
if the work were performed under a prime contract with DOE. That decision
led to the issuance of the instant RFP, which resulted in the award of the
contract to Winston and Strawn protested here.

The Current Solicitation and Award

The RFP, issued on May 27, 1999, contemplated the award of a time and
materials, level-of-effort type contract for a base period of 5 years, with
option periods totaling an additional 5 years. RFP sect.sect. B.2, L.8. The RFP
explains that the successful offeror is to provide DOE with professional
legal advice and assistance in matters involving licensing activities of
DOE's OCRWM. Id. sect. C.2.1.0. Specifically, the contractor is to provide
support to DOE in performing activities necessary to the preparation and
defense of a potential license application for a spent nuclear fuel and
high-level radioactive waste repository at the Yucca Mountain site. The work
will include preparation of written analyses, recommendations and documents,
and ensuring compliance with regulatory requirements related to the
licensing process. Id. The successful offeror is also required to work with
DOE and its contractors in a teaming arrangement, which involves close
coordination of work effort, including sharing information, knowledge and
expertise between the contractor, the agency, and other DOE contractors.

The agency explains that throughout the process of planning the procurement,
DOE considered the contemplated contract as a replacement for the
subcontract TRW had awarded Winston and Strawn--i.e., the RFP is to procure
through a prime contract the same kind of licensing expertise, and legal
advice and assistance, Winston and Strawn had been previously providing DOE
through its TRW subcontract. AR at 3 and exh. 11, Declaration of Assistant
Manager, RCYMSCO, Nov. 23, 1999, para. 12. In order to avoid overlapping the
work, DOE states that it timed the award in this procurement to coincide
with the expiration of the TRW/Winston and Strawn subcontract on September
30, 1999, just as would have occurred had the expiring contract been a prime
DOE contract. AR at 3.

The protester and the awardee were the only two firms that responded to the
RFP. The agency evaluated proposals, heard oral presentations, conducted
written discussions, and received and evaluated final proposal revisions
from both firms. In accordance with DOE's standard OCI disclosure clause
contained in the RFP, both offerors submitted OCI disclosure statements. In
its OCI disclosure statement, Winston and Strawn represented that it had no
conflict of interest as defined in the RFP, and specifically disclosed that
during the preceding 12 months, it had provided legal services to TRW,
including legal support, regulatory research, and advice related to all
aspects of NRC licensing. Winston and Strawn stated that it had identified
no actual or potential conflict of interest or unfair competitive advantage
resulting from its work for TRW. AR, exh. 7, Tab 9, Winston and Strawn OCI
Disclosure, June 28, 1999.

The RFP listed key personnel, technical approach, corporate experience/past
experience, and price as evaluation factors, and stated that the offerors'
technical capability would be of greater importance than price. RFP sect.sect. M.2,
M.3. A technical evaluation committee (TEC) evaluated proposals and reviewed
the OCI disclosure statements. Based on the results of the final evaluation,
both proposals earned perfect technical scores of 1,000 points in the
evaluation; Winston and Strawn's final revised price was nearly $3.7 million
less than that offered by LeBoeuf. AR, exh. 10, Selection Statement for
DE-RP01-99GC30789, Sept. 17, 1999, at 2-3, 5. In addition, based on its
review of Winston and Strawn's OCI disclosure statement, the TEC found that
there were no OCIs that would preclude the firm from being selected for
award under the RFP. Accordingly, the TEC recommended to the source
selection official (SSO) that Winston and Strawn be selected for award. AR,
exh. 5, Memorandum from Assistant General Counsel for Civilian Nuclear
Programs to SSO, Sept. 16, 1999, at 1.

DOE notified LeBoeuf of the selection on September 20 and awarded the
contract to Winston and Strawn on September 24 at a total estimated value,
including options, of $16,586,795. CO Statement at 6, and AR, exh. 10, at 5.
DOE debriefed LeBoeuf on September 27, and this protest followed.

Admission to Protective Order

Pursuant to our Bid Protest Regulations, 4 C.F.R. sect. 21.4(a) (1999), our
Office issued a protective order, which allowed the limited release of
certain documents--such as the offerors' proposals and the agency's
evaluation documentation--to counsel who were admitted to the protective
order. We received and reviewed the applications of James L. Feldesman,
Edward T. Waters, and Kathy S. Ghiladi, attorneys with the law firm of
Feldesman, Tucker, Leifer, Fidell and Bank, retained by LeBoeuf to represent
it in this protest.

DOE objected to the admission of protester's counsel primarily because
Eugene R. Fidell, a partner in the Feldesman firm, was listed as a personal
reference for Michael F. McBride, one of the key employees in LeBoeuf's
proposal. Specifically, DOE's objection was that "[b]ased on the protester's
counsel's relationship with the protester as a reference in this procurement
and the continuing personal and professional relationship, as well as
[protester's] counsel's failure to disclose this information [in their
applications] . . . there is a significant risk of inadvertent disclosure of
protected material." Letter from DOE to General Accounting Office 1 (Oct.
14, 1999). DOE further argued that since the protest challenged the
evaluation of LeBoeuf's proposal, "it appears that the counsel representing
LeBoeuf may themselves be witnesses regarding the technical evaluation of
the information they provided." Id. at 2. Finally, DOE claimed that
protester's counsel does not have an established bid protest practice and
"thus probably does not have an established process for conformity to the
strictures of a GAO protective order," further enhancing DOE's concern for
the inadvertent disclosure of protected information. Id. at 3.

In considering the propriety of granting or denying an applicant admission
to a protective order, we review each application in order to determine
whether the applicant is involved in competitive decision-making or there is
otherwise an unacceptable risk of inadvertent disclosure of protected
information should the applicant be granted access to protected material.
See McDonnell Douglas Corp., B-259694.2, B-259694.3, June 16, 1995, 95-2 CPD
para. 51 at 7. In this case, we admitted protester's counsel to the protective
order over DOE's objections based upon our finding that they are not
involved in competitive decision-making and that their admission does not
otherwise pose an unacceptable risk of inadvertent disclosure of protected
information.

DOE did not assert, and there is no evidence in the record suggesting, that
either protester's counsel or Mr. Fidell participate in competitive
decision-making for LeBoeuf. Mr. Fidell provided a sworn declaration
describing his relationship with Mr. McBride, in which he stated that since
leaving LeBoeuf more than 15 years ago, he worked with Mr. McBride on a
single matter, which was concluded in 1997 and had nothing to do with the
Yucca Mountain Project at issue here. Mr. Fidell further stated that with
only one exception in connection with the 1997 work, he and Mr. McBride do
not socialize, and have lunch together only two or three times a year.

In addition, Mr. Fidell asserted that he is not privy to the business plans
of the LeBoeuf firm; has not had any financial interest in the firm since
1984; and has not been involved in competitive decision-making for LeBoeuf
since 1984. Mr. Fidell offered additional assurances that he reviewed no
documents concerning LeBoeuf's proposal before its submission, and stated
that he has no desire or intention to view or otherwise learn the contents
of any protected documents that may be released to his colleagues at the
Feldesman firm. In light of Mr. Fidell's explanation of his relationship
with Mr. McBride and LeBoeuf, we concluded that the primary basis for DOE's
objection--that Mr. Fidell's past or present relationship with Mr. McBride
gives rise to a significant risk of inadvertent disclosure of protected
material--was without merit.

We further found that DOE's concern that protester's counsel's failed to
mention in their applications the fact that LeBoeuf had listed Mr. Fidell as
a personal reference for Mr. McBride in its proposal, was also unfounded.
There simply is no basis to conclude that protester's counsel reasonably
should have anticipated DOE's objections.

In addition, we found that DOE's concern that protester's counsel may
themselves be witnesses in this case regarding DOE's evaluation of LeBoeuf's
past performance was equally meritless. The protester did not challenge the
technical evaluation of its own proposal; rather, in its initial protest,
LeBoeuf challenged the evaluation of the awardee's proposal. We thus found
it highly unlikely that any statements Mr. Fidell made to DOE evaluators
could be at issue in this case. In any event, we failed to see, and DOE did
not explain, how the remote possibility that Mr. Fidell could be a witness
may present an unacceptable risk of inadvertent disclosure of protected
material.

Finally, protester's counsel represented that they had read the protective
order issued by our Office for this protest and would abide by its terms and
conditions in handling any protected material that is produced in this
matter. Except for DOE's blanket statement that the firm may lack an
established process for conforming to the requirements of the protective
order, there was no reason to question counsel's representations. In sum, we
concluded that the risk of inadvertent disclosure of protected material was
sufficiently minimal to warrant providing protester's counsel access under
the protective order.

Protest Issues

The protester primarily argues that DOE should have disqualified Winston and
Strawn from receiving the award because the firm allegedly has an
unavoidable OCI as a result of its earlier work under its subcontract with
TRW. [5] LeBoeuf in essence contends that an OCI exists because under the
instant contract, Winston and Strawn will be responsible for reviewing the
work the firm performed under its TRW subcontract. The protester also relies
on the text of a 1997 version of DOE's Management Plan for the preparation
of the license application, arguing that the Plan requires Winston and
Strawn to serve as "document reviewer" for the license application. The
protester also argues that the license application is subject to certain
quality assurance procedures established to satisfy NRC requirements for
review of technical documents. [6]

Discussion

An OCI occurs where, because of other activities or relationships with other
persons, a person is unable or potentially unable to render impartial
assistance or advice to the government, or the person's objectivity in
performing the contract work is or might be otherwise impaired, or a person
has an unfair competitive advantage. Federal Acquisition Regulation (FAR)
sect. 9.501; International Management and Communications Corp., B-272456, Oct.
23, 1996, 96-2 CPD para. 156 at 3; Aetna Gov't Health Plans, Inc.; Foundation
Health Fed. Servs., Inc., B-254397.15 et al., July 27, 1995, 95-2 CPD para. 129
at 12. Contracting officials are to avoid, neutralize, or mitigate potential
significant conflicts of interest so as to prevent an unfair competitive
advantage or the existence of conflicting roles that might impair a
contractor's objectivity. FAR sect.sect. 9.504(a), 9.505; CH2M Hill, Ltd., B-259511
et al., Apr. 6, 1995, 95-1 CPD para. 203 at 14.

In deciding whether Winston and Strawn has an OCI in this case, the central
issue is whether the work called for under the RFP in essence is a
continuation of work performed to date, or whether the RFP calls for Winston
and Strawn in effect to review work it performed under its subcontract with
TRW, thereby calling into question the firm's objectivity and its ability to
render impartial assistance to DOE. As explained below, we conclude that
Winston and Strawn's work under its TRW subcontract and its current work for
DOE are virtually indistinguishable and that neither the RFP, DOE's
Management Plan, nor its quality assurance procedures call on Winston and
Strawn to review its prior work under the TRW subcontract. Accordingly,
there is no basis in the record to conclude that award to Winston and Strawn
gives rise to an OCI.

The RFP that resulted in the award of TRW's M&O contract stated in relevant
part:

The Contractor is to provide the strategy options, leadership, and resources
to assist DOE in obtaining the NRC license. . . . A primary aspect of the
Contractor's responsibilities is to ensure that all work is conducted in a
structured and systematic manner: meets the technical, schedule, cost,
safety, environmental, quality and interface requirements; meets the
regulatory requirements of the NRC and [EPA]; and, is consistent with
applicable DOE orders.

RFP No. DE-RP01-88RW00134, Oct. 5, 1987, as amended, Feb. 25, 1988, attach.
A, Statement of Work, para. I.B.

The current RFP describes the required work in essentially similar terms, as
follows:

Primarily, the contractor will provide support to DOE in performing
activities necessary to the preparation and defense of a potential license
application for a spent nuclear fuel and high-level radioactive waste
repository at the Yucca Mountain, Nevada site, including preparation of
written analyses, recommendations and documents, and ensuring compliance
with regulatory requirements attendant to the licensing process.

AR, exh. 1, RFP sect. C.2.1, at 16.

A comparison of these provisions, in our view, clearly supports the agency's
position that the work contemplated by the protested contract is essentially
a continuation of the work Winston and Strawn previously accomplished under
its TRW subcontract.

The agency further states that TRW routinely shared Winston and Strawn's
work product with DOE, and DOE relied on the expertise provided by Winston
and Strawn. AR, exh. 11, para.para. 10-11. Thus, contrary to LeBoeuf's suggestion,
there is no reason to conclude that Winston and Strawn's work pursuant to
its TRW subcontract was motivated by interests adverse to DOE's, or created
any relationship with TRW that would preclude the firm from providing
impartial, objective legal advice and assistance to DOE under this contract.
[7]

LeBoeuf's argument that DOE's Management Plan requires Winston and Strawn to
perform review functions for the license application under this contract is
similarly lacking in merit. [8] The RFP does not contemplate that the
successful offeror will perform review functions. In any case, DOE explains
that the specific language of the Plan LeBoeuf relies upon for its argument
is obsolete, and is substantially different from the current Plan. As
relevant to LeBoeuf's concerns, the current Plan makes clear that DOE's
Office of General Counsel is to provide "concurrence review" before the
application is transmitted to the Secretary, and DOE does not intend to
delegate this final concurrence review to a contractor. Management Plan for
the Development of the License Application for a High Level Waste Repository
at Yucca Mountain, YMP/97092, Rev. 1, 1999, para. 2.4.3. [9]

Similarly, since DOE is ultimately responsible for reviewing the license
application, we find there is no merit to LeBoeuf's argument that Winston
and Strawn will be reviewing the license application in accordance with
quality assurance procedures established to satisfy NRC requirements for
review of technical documents. In this connection, the agency explains that
LeBoeuf assumes that the license application is a document that must be
reviewed to satisfy NRC's quality assurance requirements. DOE states,
however, that the applicable regulations require a quality assurance program
that applies to systems, structures, and components important to safety.
10 C.F.R. sect. 60.151. According to DOE, the regulations apply to activities
such as site characterization, construction, and facility operation. AR at
14. Accordingly, by their terms, the regulations do not apply to the process
of applying for an NRC license. The agency further explains that, contrary
to the protester's assumption, DOE decided that the license application
itself would not be subject to the procedures in DOE's quality assurance
program. In this connection, the agency states that the license application
is not subject to the quality assurance process because it will not be the
original source of any technical conclusions, but will merely report
technical conclusions that will be contained in supporting documents, such
as site information and analysis results, that are subject to the quality
assurance program. Consequently, we agree with the agency's view that the
protester's suggestion that an OCI exists because Winston and Strawn will be
performing quality assurance review of the license application is lacking in
factual basis.

In our view, given that the RFP essentially contemplates a continuation of
the work Winston and Strawn performed under its TRW subcontract, rather than
review of that work, there is no basis to conclude that because of its
previous relationship with TRW, Winston and Strawn would be unable to render
impartial assistance or advice to DOE under this contract. Accordingly,
based upon our review of the record, there is no basis to conclude that
Winston and Strawn has an OCI that precludes it from receiving the award.

Supplemental Protest

In a supplemental protest, filed October 28, 1999, LeBoeuf contends that
Winston and Strawn was ineligible to compete under the RFP's OCI clause
because a cover letter to the 1992 solicitation issued by TRW (which
resulted in the subcontract awarded to Winston and Strawn) disqualifies the
firm from competing in this procurement; [10] that the RFP's OCI clause
constitutes a definitive responsibility criterion that Winston and Strawn
could not meet; and that in view of the existence of the alleged OCI, the
CO's responsibility determination was made in bad faith. In addition,
LeBoeuf contends that an OCI provision incorporated into TRW's M&O contract
rendered Winston and Strawn ineligible for award under the instant RFP by
virtue of the "flow down" effect of that provision into Winston and Strawn's
subcontract.

DOE and the intervenor argue that the issues raised in LeBoeuf's
supplemental protest are untimely because DOE informed the protester of the
selection of Winston and Strawn both on September 20 and again at its
debriefing, which was conducted on September 27. The agency further points
out that LeBoeuf received a copy of the cover letter with the solicitation
for the TRW subcontract in May 1992. CO Statement at 3. The protester does
not dispute DOE's statement in this regard. DOE and the intervenor thus
contend that to be timely under our Regulations, any protest issues based on
the language of the cover letter or questions concerning Winston and
Strawn's responsibility, or regarding the effect of the OCI provision
incorporated into Winston and Strawn's subcontract, had to be raised within
10 days after the agency debriefed LeBoeuf. As explained below, we agree
with DOE's and the intervenor's position in this regard.

Where a protester files supplemental protest grounds, each new ground must
independently satisfy the timeliness requirement of our Bid Protest
Regulations, which do not contemplate the piecemeal presentation or
development of protest issues. Imaging Sys. Tech., B-278112, Dec. 10, 1997,
97-2 CPD para. 161 at 4 n.2; QualMed, Inc., B-257184.2, Jan. 27, 1995, 95-1 CPD
para. 94 at 12-13. Such new issues must be filed within 10 calendar days after
the protester knew or should have known the basis for its protest. Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a)(2). Presenting a broadly stated
general allegation in an initial protest does not permit the protester later
to present specific and otherwise untimely arguments having some relevance
to the initial general allegation. GE Gov't Servs., B-235101, Aug. 11, 1989,
89-2 CPD para. 128 at 4.

The record shows that DOE notified LeBoeuf of the selection of Winston and
Strawn on September 20, 1999, and debriefed LeBoeuf on September 27. AR at
6; Protest, Oct. 4, 1999, at 4. Further, LeBoeuf concedes that it received
the cover letter to TRW's solicitation upon its issuance in May 1992.
Supplemental Protest, Oct. 28, 1999, at 8-9; Supplemental Affidavit of R.
Tenney Johnson, Oct. 26, 1999, para. 8. Thus, LeBoeuf knew of DOE's selection
decision and the reasons for the decision--and therefore, the basis for its
protest--as of September 27.

A protester that knows of a relationship which potentially violates an RFP's
OCI provision must protest no later than 10 days of learning that the award
was made to a party with the allegedly prohibited relationship. Test Sys.
Assocs., Inc., B-244007.4, B-244007.5, May 1, 1992, 92-1 CPD para. 408 at 5.
Given that LeBoeuf was on notice that Winston and Strawn had been providing
assistance and legal advice to TRW at least since 1992, if LeBoeuf believed
that the 1992 cover letter to TRW's solicitation (of which the protester had
possession since May 1992) or the terms of TRW's M&O contract precluded the
award to Winston and Strawn, or concluded from the information it learned at
its debriefing that the CO unreasonably determined that Winston and Strawn
is a responsible firm, it was required to raise these issues within 10
calendar days of its September 27 debriefing, that is, by October 7. Since
LeBoeuf did not file its supplemental protest until October 28--more than 1
month after its debriefing--these issues are untimely and will not be
considered. 4 C.F.R. sect. 21.2(a)(2).

The protest is denied.

Comptroller General
of the United States

Notes

1. Yucca Mountain is located in Nye County, approximately 100 miles
northwest of Las Vegas, Nevada, on federally-owned land on the western edge
of DOE's Nevada test site. If approved, the repository will be built
approximately 1,000 feet below the top of the mountain, and will be the
nation's first geological repository for permanent disposal of this type of
radioactive waste.

2. The major focus of the NWPA is the need to dispose of spent nuclear fuel
from civilian nuclear power reactors located at approximately 70 sites
throughout the country. These reactors use rods of radioactive materials in
order to generate electricity. After a period of time, the rods become
"spent" and are removed from the reactor. According to DOE, these spent fuel
rods will remain radioactive for thousands of years.

3. The regulations establish the contractual terms and conditions under
which DOE will make available nuclear waste disposal services to owners and
generators of spent nuclear fuel and high-level radioactive waste. The text
of the Standard Contract, which is not at issue in this protest, is set out
at 10 C.F.R. sect. 961.11.

4. Several federal agencies are responsible for one or more aspects of the
proposed repository, including DOE (construction, management, and
operation); the Environmental Protection Agency (EPA) (developing
site-specific standards related to public health and environmental safety);
NRC (licensing); Department of Transportation (safety of transporting
hazardous waste); and Mine Safety and Health Administration/Department of
Labor (health and safety of underground workers). This protest involves only
the procurement of professional legal services by DOE.

5. In its initial protest, LeBoeuf also argued that the CO should have
considered the increased costs that DOE may incur in defending its selection
of Winston and Strawn due to anticipated legal challenges based on the
existence of the alleged OCI; LeBoeuf also maintained that the alleged OCI
should have precluded Winston and Strawn's proposal from earning a perfect
score in the technical evaluation. DOE responded to these allegations and
LeBoeuf did not rebut the agency's response. Accordingly, we consider these
issues abandoned. Appalachian Council, Inc., B-256179, May 20, 1994, 94-1
CPD para. 319 at 8 n.8.

6. In a supplemental protest filed January 14, 2000, LeBoeuf contends that
Winston and Strawn has an OCI stemming from its representation of another
company, Fluor Daniel Hanford, Inc., in connection with certain proceedings
before DOE. We will issue a separate decision addressing the supplemental
protest.

7. To the extent that LeBoeuf argues that in performing the contract,
Winston and Strawn's personnel would violate applicable professional canons
of ethics or rules of professional responsibility, our Office does not have
jurisdiction to review alleged violations of these rules. Dun & Bradstreet
Corp., B-213790, June 13, 1984, 84-1 CPD para. 626 at 3 (protester's argument
that contractor's approach would violate applicable professional canons of
ethics dismissed as a matter for the professional organizations involved,
not our Office); see also Sterling Med. Assocs., B-213650, Jan. 9, 1984,
84-1 CPD para. 60 at 3 (protester's allegation that awardee violated the Ethics
in Government Act dismissed because enforcement of that Act is not
encompassed by our bid protest jurisdiction).

8. The purpose of the Plan is to provide guidance for developing a license
application in compliance with applicable regulations, sufficient to docket
the application with the NRC. AR, exh. 11, Tab A, Management Plan, para. 1.1.
DOE developed the Plan to provide a framework to ensure that the license
application is developed on schedule and with adequate content to be
submitted to the NRC in accordance with the NWPA. Id. para. 1.2.

9. In any event, we note that the Plan is an internal DOE document to guide
agency personnel in the licensing application process, and its violation, if
that occurred, would not provide outside parties, such as LeBoeuf, with a
basis of protest. Rockwell Int'l Corp., B-261953.2, B-261953.6, Nov. 22,
1995, 96-1 CPD para. 34 at 13 n.16.

10. The cover letter to the TRW solicitation for the subcontract, dated May
15, 1992, stated that DOE "anticipat[ed] procuring technical support service
from a law firm to assist it in connection with the discharge of its
responsibilities to OCRWM. Firm(s) providing technical support services to
TRW based upon [the subcontract] will be disqualified from bidding on the
procurement the DOE OGC intends to publish in the future." LeBoeuf
Supplemental Protest, Oct. 28, 1999, exh. 2. DOE states that this cover
letter was not incorporated into the M&O subcontract solicitation, nor was
it incorporated into the resulting subcontract with Winston and Strawn. CO
Statement at 2-3; AR exh. 8.