TITLE:  Jacobs COGEMA, LLC, B-290125.2; B-290125.3, December 18, 2002
BNUMBER:  B-290125.2; B-290125.3
DATE:  December 18, 2002
**********************************************************************
Jacobs COGEMA, LLC, B-290125.2; B-290125.3, December 18, 2002

   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.        

   Decision
    
Matter of:    Jacobs COGEMA, LLC
    
File:             B-290125.2; B-290125.3
    
Date:              December 18, 2002
    
Marc F. Efron, Esq., Thomas P. Humphrey, Esq., Elizabeth W. Newsom, Esq.,
and
J. Catherine Kunz, Esq., Crowell & Moring, for the protester.
Richard O. Duvall, Esq., Craig A. Holman, Esq., and Kara L. Daniels, Esq.,
Holland & Knight, for Uranium Disposition Services, LLC, an intervenor.
Gena E. Cadieux, Esq., Beth Kelly, Esq., Joseph A. Lenhard, Esq., and Mary
D. Copeland, Esq., Department of Energy, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.     Statutory provision enacted after proposals were evaluated but
before source selection decision was made, which directs Secretary of
Energy to, *notwithstanding any other provision of law,* ask offerors to
confirm or reinstate their offers within a certain time, select for award
of a contract the *best value of proposals* for the solicitation's scope
of work within 30 days of enactment, and negotiate with the awardee for
certain contract modifications, does not remove the procurement from the
coverage of the ordinarily applicable procurement laws and regulations,
including those governing General Accounting Office jurisdiction over a
protest of the procurement, where the statutory provision's requirements
are not inconsistent with these ordinarily applicable procurement laws and
regulations. 
    
2.     Protest that contracting agency improperly evaluated offerors'
technical and cost proposals is denied where the record shows that the
evaluation was reasonable and consistent with the stated evaluation
criteria; source selection decision based upon the evaluation results was
also reasonable, consistent with the stated evaluation criteria, and well
supported.
DECISION
    
Jacobs COGEMA, LLC (JC) protests the award of a contract to Uranium
Disposition Services, LLC (UDS) under request for proposals (RFP) No.
DE-RP05-01OR22717, issued by the Department of Energy (DOE) for the
design, construction, and operation of depleted uranium hexafluoride
(DUF6) conversion facilities at Paducah, Kentucky, and Portsmouth, Ohio. 
JC primarily argues that DOE improperly evaluated offerors' technical and
cost proposals and made an improper source selection decision.
    
We deny the protests.
    
BACKGROUND
    
Beginning with the development of the atomic bomb and continuing over the
last half of the twentieth century, the United States processed large
quantities of uranium using gaseous diffusion to produce enriched uranium
suitable for use as fuel for nuclear reactors or military applications. 
The gaseous diffusion process uses uranium in the form of uranium
hexafluoride, or UF6, and *depleted* UF6, or DUF6, is a byproduct of the
enrichment process.  During that process, the DUF6 is transferred as a gas
to large steel cylinders (typically 12 feet long by 4 feet in diameter),
cooled to convert the gas to solids in the cylinders, and stored in the
cylinders.  DOE is responsible for the government's inventory of
approximately 700,000 metric tons of DUF6 stored in approximately 57,000
cylinders.  Since the 1950s, such material has been stored at the
government's gaseous diffusion plants in Paducah and Portsmouth, and at
the East Tennessee Technology Park (ETTP) in Oak Ridge, Tennessee. 
    
Since 1990, DOE's cylinder management has focused on the ongoing
surveillance and maintenance of the cylinders containing DUF6, which
involves cylinder inspections, recoatings, and relocations to ensure that
DUF6 is safely stored pending its ultimate disposition.[1]  Id. S:
II.B.6.  In 1998, Congress passed the McConnell Act which, among other
things, directed DOE to prepare a plan to construct facilities in Paducah
and Portsmouth to treat and recycle the DUF6.  Pub. L. No. 105-204, S: 1,
112 Stat. 681, 682 (1998).  In March 1999, DOE provided its initial plan
to Congress and issued a Request for Expressions of Interest to industry. 
DOE submitted its final plan in July 1999, and issued the instant
solicitation on October 31, 2000.
    
DOE's overarching requirement is to convert its DUF6 inventory to a more
stable chemical form and to reuse or dispose of the converted product and
byproducts.  In general, this process involves (1) heating the cylinders
in an autoclave to physically transform the DUF6 from the solid phase to
the vapor phase, (2) reacting the vaporous DUF6 with steam and hydrogen in
a conversion apparatus to produce a solid uranium compound and HF vapor,
(3) separating the reaction products,
(4) packaging the solid uranium compound, (5) condensing the HF vapor to
the liquid phase, (6) and disposing of both conversion products by reuse,
commercial marketing, or disposal at a waste depository. 
    
The RFP contemplated the award of a cost-reimbursement, performance-based
contract for the design, construction, and operation of DUF6 conversion
facilities at Paducah and Portsmouth[2] beginning with the date of award
through 5 years of operation.[3]  Offerors were to select the technology
process to be used to convert DOE's inventory of DUF6 to triuranium
octaoxide (U3O8), uranium dioxide (UO2), uranium tetrafluoride (UF4),
uranium metal, or some other stable chemical form acceptable for
transportation, beneficial use/reuse, and/or disposal.  The successful
contractor will assume responsibility for cylinder management activities
for DUF6 cylinders 1 year before the start of conversion plant operation,
and will assume responsibility, as well, for the transportation and
disposition of conversion products, all waste forms, and empty and heel
cylinders.[4]  SOW S: C.I and RFP Cover Letter at 1. 
    
The RFP stated that, in accordance with the Federal Acquisition Regulation
(FAR) and the Department of Energy Acquisition Regulation, proposals were
to be evaluated in accordance with the stated technical and business
management, cost, and fee evaluation criteria.  Award was to be made to
the offeror whose proposal was the best value to the government
considering these criteria.  RFP S: M.1.(a). 
    
Technical and business management proposals were to be evaluated to
determine the offeror's understanding of and capability to perform the
SOW's requirements.  These proposals were to be point-scored and evaluated
in accordance with six criteria and various subcriteria.  The
technology/design criterion, worth 30 percent of the available points, was
comprised of two sub-criteria, DUF6 conversion and waste and conversion
product disposition.  The project management criterion, worth 25 percent
of the available points, was comprised of two sub-criteria, method of
accomplishment and project management systems.  The remaining criteria
were business management and environment, safety, and health (ES&H), each
worth
15 percent of the available points; experience, worth 10 percent of the
available points; and past performance, worth 5 percent of the available
points.
    
Each offeror's cost proposal for the contract period and cost estimate for
the
post-contract life-cycle period was to be evaluated for cost
reasonableness and realism.  DOE was to determine a most probable cost for
the contract period, and to evaluate the most probable net present value
(NPV) cost of the post-contract life-cycle period.  RFP S: M.2(b)(1),
amend. No. 2, rev. No. 29.  Both of these were also to be compared with
the technical and business management proposal for consistency and
understanding of the SOW.  DOE stated it was not seeking offers that
minimized contract costs by raising total life-cycle project costs, and
that proposals were to be evaluated accordingly.  RFP S: M.2(b)(2), amend.
No. 2, rev. No. 29.  The amount of the proposed fee was also to be
evaluated.  RFP S: M.2(c).  The technical and business management proposal
was to be significantly more important than the evaluated most probable
contract cost and fee and the evaluated most probable NPV life-cycle cost
estimate, but both were a substantial element of the evaluation, with the
contract cost and fee being more important than the life-cycle cost. 
RFP S: M.3(b), amend. No. 2, rev. No. 30.
    
Selection of the *best value* proposal was to be achieved by evaluating
the strengths and weaknesses of each proposal in accordance with the
evaluation criteria.  DOE was more concerned with obtaining superior
technical and business management performance than with making award at
the lowest evaluated most probable cost and fee or selecting the proposal
with the lowest evaluated post-contract life-cycle cost estimate, but
would not make an award at a cost and fee premium that was
disproportionate to the benefits associated with the evaluated superiority
of one technical and business management proposal over another.  As a
result, DOE was to assess whether the strengths and weaknesses between or
among competing technical and business management proposals indicated a
superiority from the standpoint of what the evaluated most probable
contract cost and fee and evaluated most probable NPV post-contract
life-cycle cost estimate to the government would be to take advantage of
the difference.  RFP S: M.4, amend. No. 2, rev. No. 31.
    
DOE received proposals from five firms by March 1, 2001.  The agency
evaluated initial proposals and established a competitive range of three,
including JC and UDS, on August 3.[5]  Extensive written and face-to-face
discussions were conducted later that month and offerors submitted revised
proposals.  After reviewing the revised proposals, DOE sent letters
providing additional issues for offerors to address and held additional
face-to-face meetings for this purpose.  The SEB subsequently requested
the submission of final proposal revisions  (FPR) and sent a list of
issues for each offeror to consider.  FPRs were submitted on November 5. 
The SEB evaluated the FPRs and prepared a report reflecting the following
consensus scores:
    

   +------------------------------------------------------------------------+
|                                                  |JC         |UDS      |
|--------------------------------------------------+-----------+---------|
|Technical and Business Management Proposal (1,000 |899        |888      |
|points)                                           |           |         |
|--------------------------------------------------+-----------+---------|
|Technology/Design                                 |           |         |
|--------------------------------------------------+-----------+---------|
|   i.  DUF6 Conversion (200 points)               |      188  |    192  |
|--------------------------------------------------+-----------+---------|
|   ii. Waste and Conversion Product Disposition   |        83 |      84 |
|(100 points)                                      |           |         |
|--------------------------------------------------+-----------+---------|
|Project Management                                |           |         |
|--------------------------------------------------+-----------+---------|
|   i.  Method of Accomplishment (150 points)      |      141  |    134  |
|--------------------------------------------------+-----------+---------|
|   ii. Project Management Systems (100 points)    |        92 |      87 |
|--------------------------------------------------+-----------+---------|
|Business Management (150 points)                  |      137  |    132  |
|--------------------------------------------------+-----------+---------|
|Environment, Safety, and Health (150 points)      |      125  |    119  |
|--------------------------------------------------+-----------+---------|
|Experience (100 points)                           |        98 |      94 |
|--------------------------------------------------+-----------+---------|
|Past Performance (50 points)                      |        35 |      46 |
|--------------------------------------------------+-----------+---------|
|Cost, Fee, and Revenue Evaluation (millions)      |           |         |
|--------------------------------------------------|           |         |
|Contract Period                                   |           |         |
|--------------------------------------------------+-----------+---------|
|   Total Estimated Probable Costs                 |$506.7     |$493.7   |
|--------------------------------------------------+-----------+---------|
|   Proposed Maximum Fee                           |    $  60.6|  $  63.3|
|--------------------------------------------------+-----------+---------|
|   Total Probable Costs and Maximum Fee           |    $567.3 |  $557.0 |
|--------------------------------------------------+-----------+---------|
|   Probable Revenue                               |    $  51.0|  $  24.7|
|--------------------------------------------------+-----------+---------|
|Post-Contract Period                              |           |         |
|--------------------------------------------------+-----------+---------|
|   Total Estimated Probable NPV Cost              |    $768.1 |  $712.3 |
|--------------------------------------------------+-----------+---------|
|   Probable NPV Revenue                           |    $114.6 |  $  75.1|
+------------------------------------------------------------------------+

    
The SEB's extensive report included a summary of its conclusions regarding
each proposal under each area of evaluation, supported by a more detailed
discussion of the strengths and weaknesses of each proposal.  The source
selection official (SSO) discussed the evaluation with the five members of
the SEB and requested additional comparative analyses and information in
several areas, which came in the form of
20 *white papers.*  The SEB report did not include a specific
recommendation for award but, when asked by the SSO for individual
recommendations, one SEB member recommended JC and three recommended UDS. 
    
The selection of the successful offeror and award of the contract was
planned for January 15, 2002 but, around that time, DOE decided to
consider alternatives in the number and location of conversion facilities
before continuing with the procurement.  Offerors in the competitive range
were advised of this decision and of DOE's intent to amend the RFP to
permit them to provide revised offers; during the course of DOE's
consideration of its alternatives, all offers expired.
    
On August 2, the president signed into law the 2002 Supplemental
Appropriations Act for Further Recovery from and Response to Terrorist
Acts on the United States (the Act).  Pub. L. No. 107-206, 116 Stat. 820
(2002).  Section 502 of the Act required the Secretary of Energy to,
*notwithstanding any other provision of law,* within
10 days of enactment, ask offerors whose proposals were in the competitive
range in this procurement to confirm or reinstate their offers, and select
for award of a contract *the best value of proposals* confirmed or
reinstated and award a contract for the scope of work stated in the RFP,
including the design, construction, and operation of facilities in Paducah
and Portsmouth, within 30 days of enactment.  Pub. L. No. 107-206, 116
Stat. 851-52, S: 502(c)(1).  The Act also required the Secretary of Energy
to, *notwithstanding any other provision of law,* negotiate with the
awardee to modify the contract awarded to, among other things, require
that groundbreaking for construction occur not later than July 31, 2004,
and that construction proceed expeditiously thereafter.  Id. S:
502(c)(2). 
    
In response to DOE's request, all three offerors in the competitive range
confirmed or reinstated their offers by August 12.  Subsequently, *for
purposes of determining the best value as required by the Act,* Source
Selection Statement (SSS) at 2, the SSO considered the RFP's evaluation
criteria and the evaluation process carried out prior to the passage of
the Act.  He reviewed the SEB report in its entirety, as well as portions
of each offeror's proposal, and had *substantive interaction and
discussions with the SEB* in the process of making his source selection
decision.  Id. at 6.  The SSO explained that both proposals received high
scores and that, in assessing their relative merits, he reviewed their
strengths and weaknesses to determine the discriminators that existed
between them.  The SSO agreed with the SEB's findings concerning the
offerors' respective strengths, but did not agree with their relative
scoring of certain aspects of the proposals.  He concluded that there were
more discriminators favoring the UDS proposal than the JC proposal, and
that there was a *discernible advantage* to the UDS technical and business
management proposal.  Id. at 7. 
    
Specifically, as discussed further below, the SSO found the technology and
design subcriteria to be major and minor discriminators, respectively, in
favor of the UDS proposal; the business management and past performance
criteria to be major discriminators in favor of the UDS proposal; and the
project management criterion subcriteria to be slight and minor
discriminators, respectively, in favor of the JC proposal.  The SSO
supported his conclusions with detailed narrative findings.  The SSO also
found that UDS had a lower probable cost than JC for both the contract and
post-contract periods.  Based upon the SEB's evaluation and his
independent review and judgment, the SSO concluded that UDS's proposal
represented the superior technical and business management proposal at a
lower cost, and provided the highest probability of success in performance
of the contract and for the long-term completion of the project.  SSS at
12.  UDS was selected for award and these protests followed.[6]
    
    
    
THRESHOLD ISSUES
    
The statutory authority for our Office to decide bid protests is set out
in the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. S:S:
3551-56 (2000), and provides for consideration of a written objection by
an interested party to a solicitation by a federal agency for offers for a
contract for the procurement of property or services, as well as an award
or proposed award of such a contract. 
31 U.S.C. S: 3551(1).  The parties agree that DOE is a federal agency;
that JC is an interested party; that the protest concerns the award of a
contract for services; and that the solicitation was issued, and proposals
evaluated, with the understanding that the procurement was governed by all
applicable procurement laws and regulations, including CICA and the FAR,
and subject to a protest reviewable by our Office.  The views of the
parties diverge when it comes to the question whether the Act's provision
that the award was to be made *notwithstanding any other provision of law*
placed the procurement outside of the coverage of these ordinarily
applicable procurement laws and regulations.
    
In 1998, Congress passed, and the president signed, legislation directing
DOE to prepare a plan to construct and operate two facilities to treat and
recycle DUF6, one at Paducah and one at Portsmouth.  Pub. L. No. 105-204,
supra.  DOE's plan is consistent with that direction; that is, the plan
provides that conversion of the DUF6 inventory will take place in plants
on each of the Paducah and Portsmouth sites.  DOE's *Final Plan for the
Conversion of Depleted Uranium Hexafluoride* at 2.  Accordingly, the
instant solicitation asked offerors to design, construct, and operate
facilities in both Paducah and Portsmouth, RFP S: C.I, and offerors
submitted proposals consistent with this requirement.  However, in January
2002, DOE put the procurement on hold so it could consider alternatives in
the number and location of conversion facilities before continuing with
the procurement.  During DOE's consideration of this matter, all offers
expired, and the statutory language at issue here was inserted into a
supplemental appropriations bill.  Section 502 of the Act amends section 1
of Public Law No. 105-204 by striking subsection (c) and inserting the
following replacement language:
    
(c) CONTRACTING REQUIREMENTS.--
         *(1) IN GENERAL.--Notwithstanding any other provision of law (except
section 1341 of title 31, United States Code), the Secretary of Energy
shall--
                 *(A) not later than 10 days after the date of enactment of
this paragraph, request offerors whose proposals in response to Request
for Proposals No. DE-RP05-010R22717 ('Acquisition of Facilities and
Services for Depleted Uranium Hexalfluoride (DUF6) Conversion Project')
were included in the competitive range as of January 15, 2002, to confirm
or reinstate the offers in accordance with this paragraph, with a deadline
for offerors to deliver reinstatement or confirmation to the Secretary of
Energy not later than 20 days after the date of enactment of this
paragraph; and
                 *(B) not later than 30 days after the date of enactment of
this paragraph, select for award of a contract the best value of proposals
confirmed or reinstated under subparagraph (A), and award a contract for
the scope of work stated in the Request for Proposals, including the
design, construction, and operation of--
                           *(i) a facility described in subsection (a) on the
site of the gaseous diffusion plant at Paducah, Kentucky; and
                           *(ii) a facility described in subsection (a) on
the site of the gaseous diffusion plant at Portsmouth, Ohio.
         *(2) CONTRACT TERMS.--Notwithstanding any other provision of law
(except section 1341 of title 31, United States Code) the Secretary of
Energy shall negotiate with the awardee to modify the contract awarded
under paragraph (1) to--
                 *(A) require, as a mandatory item, that groundbreaking for
construction occur not later than July 31, 2004, and that construction
proceed expeditiously thereafter;
                 *(B) include as an item of performance the transportation,
conversion, and disposition of depleted uranium contained in cylinders
located at the Oak Ridge K-25 uranium enrichment facility located in the
East Tennessee Technology Park at Oak Ridge, Tennessee, consistent with
environmental agreements between the State of Tennessee and the Secretary
of Energy; and
                 *(C) specify that the contractor shall not proceed to
perform any part of the contract unless sufficient funds have been
appropriated, in advance, specifically to pay for that part of the
contract.
         *(3) CERTIFICATION OF GROUNDBREAKING.--Not later than 5 days after
the date of groundbreaking for each facility, the Secretary of Energy
shall submit to Congress a certification that groundbreaking has occurred.
    
Pub L. No. 107-206, S: 502(c), supra.
    
DOE and the intervenor argue that the plain language of the Act--that DOE
was to award the contract *notwithstanding any other provision of
law*--means that the award is not subject to 31 U.S.C. S: 3552, which
provides for GAO review of protests of contract awards, or to the
requirements of the CICA and the FAR, which form the legal underpinning
for the protest allegations.  JC contends that DOE's reading of the Act is
unduly expansive and that, in the absence of any inconsistency between the
Act's provisions, on the one hand, and the ordinarily applicable
procurement statutes and regulations, on the other, the procurement is
subject to the relevant requirements of CICA and the FAR and GAO has
jurisdiction to hear its protests. 
    
In ascertaining the plain meaning of the statute, we necessarily look to
the particular statutory language at issue, as well as the language and
design of the statute as a whole.  K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988).  If the phrase *notwithstanding any other provision of
law* is read in complete isolation from its context, the agency's
interpretation is possible.  However, *in expounding a statute, we must
not be guided by a single sentence or member of a sentence, but look to
the provisions of the whole law, and to its object and policy.*  Maestro
Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 285
(1956), quoting United States v. Boisdore's Heirs, 8 How. 113, 12 L.Ed.
1009 (1850).  Based upon our review of the Act, the relevant procurement
laws and regulations, and the arguments of the parties, we conclude that
the language of the Act does not remove the procurement from our
jurisdiction or from the coverage of relevant portions of CICA and the
FAR.
    
The *notwithstanding any other provision of law* language must be read
together with the three specific tasks the agency is required to perform
pursuant to the Act's direction.  First, within 10 days of enactment, DOE
is required to ask the offerors in the competitive range to confirm or
reinstate their offers.  Second, within 30 days of enactment, DOE is
required to select the *best value* of these proposals and award a
contract for the scope of work stated in the RFP, including construction
and operation of two facilities at two locations.  Third, DOE is required
to negotiate certain contract modifications with the awardee.  Unlike in
the cases cited by DOE in support of its position, RJO Enters., Inc.,
B-252232, June 9, 1993, 93-1 CPD P: 446, citing Liberty Maritime Corp. v.
United States, 928 F.2d 413 (D.C.Cir. 1991), and TLM Marine, Inc.,
B-226968, July 29, 1987, 87-2 CPD P: 111, the statutory language here does
not give the agency unfettered discretion, but limits the agency's
discretion by directing it to perform these specific acts even if some
other law would ordinarily prevent it from doing so[7] and even if some
other law would ordinarily permit it to act in another fashion.  The Act
is silent on the applicability of laws that would not prevent the agency
from performing these specified tasks.  
    
Courts have interpreted similar *notwithstanding* language to mean that
the new federal statute *supersedes* or *trumps* other statutes that are
inconsistent.  See, e.g., Liberty Maritime Corp. v. United States, supra,
at 416; Saco River Cellular, Inc. v. Federal Communications Comm., 133
F.3d 25, 30 (D.C.Cir. 1998); Illinois Nat'l Guard v. Federal Labor
Relations Authority, 854 F.2d 1396, 1403 (D.C.Cir. 1988), quoting New
Jersey Air National Guard v. FLRA, 677 F.2d 276, 283 (3d Cir. 1982). 
Neither DOE nor the intervenor have shown that the procurement laws and
regulations that govern our jurisdiction and supply the ground rules for
the conduct of a federal procurement are inconsistent with the Act's
requirements.  The only legislative history for this provision, a
statement in the conference report indicating that the conference
agreement *includes a provision proposed by the Senate requiring the
Secretary of Energy to award a contract for two depleted uranium
hexafluoride facilities,* H.R. Conf. Rep. No. 107-593, at 144 (2002),
indicates no intent on the part of Congress to do anything more than
ensure that the contract was awarded expeditiously for the design,
construction, and operation of two, not one, depleted uranium hexafluoride
facilities.[8]  
    
As support for its argument that there can be no review of DOE's actions,
UDS cites National Coalition to Save Our Mall v. Norton, 161 F.Supp. 2d 14
(D.C.Cir. 2001), a case in which the court held that Congress intended to
preclude all judicial review of the design and location of the World War
II Memorial.  In that case, the statutory provision at issue specifically
stated that such decisions *shall not be subject to judicial review*;
there is no such language here.  UDS's argument that the protest process
itself impinges upon DOE's authority to award the contract overlooks the
fact that the contract was awarded prior to the filing of any protest; the
mere fact that a post-award protest was filed has no effect upon the
actual award of the contract, which is currently being performed.  UDS
also cites National Coalition to Save Our Mall v. Norton to support its
argument that the protest process might be inconsistent with the Act's
requirement that groundbreaking for construction occur not later than July
31, 2004.  However, unlike in that decision, which discussed the prospect
of delay caused by lengthy court proceedings, the protest process is
statutorily limited to a time period of only 100 calendar days.  See 31
U.S.C.
S: 3554(a)(1).  Even if the protest were to be sustained with a
recommendation for corrective action, there is no basis to conclude that
any resulting delay would have a negative impact on the groundbreaking
deadline.  Since we find no inconsistency between the Act's provisions and
the law governing our jurisdiction, we find that we do, in fact, have
jurisdiction to resolve these protests.
    
We also conclude that the legal standards set forth in CICA and the FAR
apply to this procurement.  The provisions of the Act are silent as to the
applicability of laws that would not prevent DOE from performing the
directed tasks, and there is a legal presumption that CICA's competition
requirements apply *except in the case of procurement procedures otherwise
expressly authorized by statute.*  41 U.S.C.
S: 253(a)(1) (1994).  Moreover, we do not see any inconsistency between
the tasks DOE was required to perform under the Act and the procurement
statutes and regulations underlying the protest allegations.  DOE issued
the solicitation and evaluated proposals with the understanding that the
ordinarily applicable procurement statutes and regulations applied to this
procurement long before the Act was passed, and the Act does not address
any aspect of the evaluation process.  With respect to the only part of
the procurement conducted after the Act's passage, the source selection
decision, the SSO stated that, for purposes of determining the best value
as required by the Act, he considered the RFP's evaluation criteria and
the evaluation process carried out prior to the passage of the Act.  SSS
at 2.  Since the laws governing the selection of the RFP's evaluation
criteria and the conduct of the evaluation were not inconsistent with the
Act's requirements, there is no basis to conclude that these or any other
procurement laws were inconsistent with the source selection and award
process. 
    
In this regard, the SSO's responsibility to select for award of a contract
the *best value* proposal, as required by the Act, is not without meaning
in the world of federal procurement law.  The phrase *best value* is drawn
directly from the FAR, which defines the objective of a source selection
in a competitive negotiated acquisition as selecting the proposal that
represents the *best value.*  FAR S:S: 15.302, 15.303(b)(6), citing 41
U.S.C. S: 253b(d)(3) (agencies are to award contracts to the source whose
proposal is most advantageous to the government, considering only cost or
price and the other factors included in the solicitation).  We agree with
JC that, by invoking the phrase *best value,* Congress appears to have
signaled its intent that the source selection decision be made consistent
with the underlying policy of awarding contracts to the entity whose
proposal offers the *best value* as set forth in the FAR.  See Russell v.
Landrieu, 621 F.2d 1037 (9th Cir. 1980) (in exercising discretion to
dispose of property acquired through foreclosure of mortgage on low-income
housing project, Secretary of Housing and Urban Development must act,
whenever possible, in a manner which is consistent with objectives and
priorities of National Housing Act, and actions taken without
consideration of those policies, or in unnecessary conflict with them,
will not stand).  DOE is correct that the FAR merely provides for a best
value *continuum* without defining best value for any particular
procurement, FAR S: 15.101, but the solicitation itself, which was
expressly referenced by the Act's provisions, provides the definition of
*best value* applicable to this procurement.  Under the circumstances, we
see no basis to conclude that the Act's provisions placed the procurement
outside of the coverage of the ordinarily applicable provisions of CICA
and the FAR.[9] 
    
Finally, citing the exchange of letters surrounding DOE's request that
offerors confirm or reinstate their offers, DOE and UDS argue that JC
*waived* its right to protest.  We do not agree.
    
After the Act was signed into law, DOE gave offerors two options in the
form of draft letters that would be sent requesting the confirmation or
reinstatement of their proposals.  The first option referenced the passage
of the Act and stated that, due to the provisions of the Act, CICA, the
FAR, and other provisions of law *do not apply to the process described
below.*  The only process *described below* was the confirmation or
reinstatement of proposals by a date certain, with the understanding that
any awarded contract would be modified after award to revise the start
date for construction.  The second option contained similar introductory
language, but described a process that permitted the confirmation or
reinstatement of proposals by a date certain, the revision of proposals to
account for certain post-contract modifications, DOE's evaluation of these
modifications, and DOE's award of a contract without any additional
interaction with offerors.  In the attached draft agreement, offerors were
to agree to these terms and waive any future challenge of the award
process and selection decision in any judicial or administrative
litigation or proceedings in any forum.  The offerors did not unanimously
accept the second option, and DOE issued letters consistent with the first
option.  We agree with JC that its acceptance of the first option did not
waive its right to protest.  The letter expressly stated DOE's view that
CICA and the FAR did not apply to *the process described below,* and
expressly limited that process to the confirmation or reinstatement of
proposals, the propriety of which is not at issue here. 
    
EVALUATION OF TECHNICAL AND BUSINESS MANAGEMENT PROPOSALS
    
JC argues that DOE's evaluation of both proposals under the technology and
design criterion, and of its own proposal under the past performance
criterion, was irrational and unsupported.
    
An agency's method for evaluating the relative merits of competing
proposals is a matter within the agency's discretion, since the agency is
responsible for defining its needs and the best method for accommodating
them.  NLX Corp., B-288785,
B-288785.2, Dec. 7, 2001, 2001 CPD P: 198 at 4.  Where an evaluation is
challenged, our Office will not reevaluate proposals but instead will
examine the record to determine whether the agency's judgment was
reasonable and consistent with stated evaluation criteria and applicable
statutes and regulations.  Lear Siegler Servs., Inc., B-280834,
B-280834.2, Nov. 25, 1998, 98-2 CPD P: 136 at 7.  The fact that the
protester disagrees with the agency does not render the evaluation
unreasonable.  ESCO, Inc., B-225565, Apr. 29, 1987, 87-1 CPD P: 450 at 7. 
Our review of the record, including written proposals, the pleadings, and
testimony taken during a hearing in this matter, provides us no basis to
find the evaluation unreasonable.  We preface our discussion by briefly
describing each offeror's approach to performing the requirements.
    
UDS proposed to use a simplified version of the process that Framatome has
used in Lingen, Germany since 1994 and in Richland, Washington since 1997
to produce nuclear reactor fuel.  Both facilities were designed,
constructed, and operated by Framatome; the Richland facility is a
second-generation design representing improvements over the German
facility.  UDS Sept. 28 Revised Proposal, Vol. II, at
C-1.  UDS proposes to load the cylinders into [DELETED] autoclaves to
vaporize the DUF6, and to feed the resulting vaporous DUF6 into a
[DELETED] fluidized bed reactor.  The DUF6 vapor will be reacted with
steam and hydrogen, resulting in uranium oxide powder (as U308) and
gaseous aqueous HF.  The reactor will pass the HF to a recovery process
for eventual sale or neutralization.  The reactor will discharge the U308
by [DELETED] and move it to a container fill station.  UDS will fill
[DELETED] with the U308, and ship these [DELETED] to a disposal site.  UDS
will [DELETED] for disposal at a disposal site.  Id. at C-24-C-35.
    
JC proposed to replicate the COGEMA DUF6 conversion process that has been
used for more than 16 years in commercial-scale operation at its *W*
plants in France.  The firm's W-2 plant, designed, constructed and
operated by COGEMA since 1993, is a second-generation facility with design
and equipment improvements resulting from experience operating the W-1
plant.  JC Oct. 1, 2001 Revised Proposal, Vol. II, at II-21.  JC proposes
to load the cylinders into steam-heated autoclaves to vaporize the DUF6,
and to feed the resulting vaporous DUF6 into the first part of an
electrically-heated rotary conversion kiln together with superheated steam
to produce UO2F2 as a solid powder that falls to the bottom of the
rotating kiln.  The UO2F2 will be conveyed into the second part of the
conversion kiln by [DELETED], where it will react with superheated steam
to create U308 and HF.  The HF will be discharged and processed for sale
or neutralization.  [DELETED].  Empty cylinders that have been washed and
modified will be reused to the extent possible as the disposal containers
for the U3O8 powder and for cut-up sections of cylinders that are not
suitable for reuse.  The filled containers will be shipped offsite for
disposal or reuse.  Id. at II-28-II-31.  Cylinder heels will be washed out
of the cylinders, and the wash liquids containing the heel materials will
be sent to an offsite subcontractor for treatment and disposal.  Id. at
II-32c.
    
Technology and Design--DUF6 Conversion
    
Section M of the RFP advised offerors that their DUF6 conversion
technology and design concept, from retrieval of cylinders through
packaging of final end products/wastes, would be evaluated on its *ability
to accomplish DUF6 conversion, and whether it represents a mature,
efficient, safe, integrated technical approach.*  RFP S: M.2(a)(1), amend.
No. 2, rev. 27.  The RFP stated that the agency would evaluate such areas
as simplicity of design; constructability; system operability;
reliability; maintainability; management of trace contaminants;
minimization of life cycle costs; design that facilitates efficient and
economical decontamination decommissioning, and demolition; the extent
that viable end product use/reuse is proposed; and the effectiveness and
thoroughness of the proposed approach to transporting the ETTP cylinders
to Portsmouth and compliance with certain regulations.  Id.
    
    
    
    
    
    
Section L of the RFP detailed the numerous items to be provided by
offerors for evaluation.  One of these items was
    
a description of the maturity of the proposed technology/process,
including a description of the scale of the proposed technology, whether
it is demonstrated or currently in production, and the production level
achieved.  Describe approach to scaling up to the required production
level and indicate any anticipated scaling problems and/or risks that
might be encountered.
    
RFP S: L.23(c)(1)(iii). 
    
The SEB evaluated both proposals as *outstanding* and assigned 192 points
to the UDS proposal and 188 points to the JC proposal.  The strengths and
weaknesses identified by the SEB for both proposals were similar in
nature.  Both were evaluated as having significant strengths for the
maturity of their technologies, the safety of their approaches, and the
integration of their technical approaches.  UDS's proposal was evaluated
as having significant strengths for the efficiency of its approach and for
its operability, as compared with JC's strengths in these same areas. 
Both proposals were evaluated as having strengths for their management of
trace contaminants, their end product use/reuse, and their approach to
transporting ETTP cylinders.  Finally, both proposals were evaluated has
having weaknesses for certain aspects of their end product use/reuse.
    
The SEB rated the UDS proposal highest based on the *proven technical
approach* of its technology, noting that the Richland facility was a
second-generation design representing improvements to the process; the
design was modular, facilitating duplication at the two plants; and the
design represented successful technology transfer from European systems
and standards.  SEB Report at 33.  The SEB explained that UDS's approach
would convert the DUF6 to U3O8 and aqueous HF using a [DELETED] fluidized
bed reactor with no moving parts, and UDS would market the HF and transfer
the uranium oxide product solids for volume reduction and packaging.  The
SEB explained that the Richland facility, which was designed to produce
nuclear reactor fuel, used reactors of slab geometry for nuclear
criticality safety, but that UDS proposed to use reactors that would be of
cylindrical geometry, which simplified the operation of the fluidized
bed.  To achieve plant throughput, the reactors would require scale-up by
a factor of [DELETED] compared with those operating at the Richland
facility.  The SEB stated that, based on Framatome's extensive operating
experience, the proposed facilities would be designed for [DELETED]
percent plant operating availability, which the SEB deemed conservative
compared with the experience at Richland; the SEB noted that this provided
significant assurance of achieving production goals.  The SEB finally
stated that the UDS proposal demonstrated a sound understanding of
conversion process chemistry, integrated engineered process systems, and
plant operation, and that it completed transporting ETTP cylinders to
Portsmouth 24 months before the compliance date.  Id. at 33-34.
    
The SEB stated that the JC proposal was rated nearly as high as that of
UDS based on its technical approach, explaining that COGEMA's W-2 plant
was a second-generation facility representing improvements to the process,
and that the design was modular, facilitating replication and duplication
at the two plants, but also noting that the design and operation required
transfer of the technology from European systems and standards.  The SEB
explained that, like the technology proposed by UDS, JC's approach would
convert DUF6 to U308 and aqueous HF, but its reactor was a two-stage,
rotary kiln with more maintenance requirements than the fluidized bed
reactor proposed by UDS.  JC proposed to market the HF and to transfer the
uranium oxide product for [DELETED] and packaging.  Based on COGEMA's
extensive operating experience at the W plants, the SEB found that the
proposal demonstrated sound understanding of conversion process chemistry,
integrated engineering process systems, and plant operation.  The SEB said
the design basis of [DELETED] percent operating availability was based on
W plant experience, but the scheduling of planned maintenance and outages
was less conservative than that of COGEMA's W plant.  The SEB concluded
that JC proposed a sound overall approach to transportation of ETTP
cylinders to Portsmouth; the proposed completion date was 6 days before
the required compliance date.  Id. at 34.
    
The SSO concurred with the SEB, finding that the UDS proposal was clearly
superior to the JC proposal and that this aspect was a major
discriminator.  The SSO's conclusions were supported by a detailed
narrative. 
    
JC argues that DOE improperly evaluated UDS's design as *mature* because
it improperly concluded that the UDS process currently produces U308,
failed to consider the risks associated with UDS's proposal to scale-up
its current design, and failed to consider the risks of UDS's proposed
design changes.
    
Specifically, JC contends that, while UDS proposes to produce U308 using
the Framatome design, the Framatome design in use in Germany and in
Richland does not produce U308 but, instead, produces UO2.  JC asserts
that there is no information that UDS ever demonstrated that its design
could produce U3O8, so all the steps in its proposed processes are
unproven steps for production of U308.  We do not agree.  
    
In its proposal, UDS states that the *cornerstone* of its approach is
Framatome's *proven commercial process and facilities in operation today
that convert UF6 to uranium oxide material,* citing the facilities in
Richland and Lingen that produce nuclear-grade uranium oxide powder for
nuclear fuel fabrication.  UDS. Sept. 28, 2001 Revised Proposal, Vol. II,
at C-1.  UDS explains that a *simplified version of the [Framatome]
patented dry conversion process will be used to convert the DUF6 inventory
from UF6 solid in cylinders to a stable uranium oxide powder, and that
*[a]ll steps in the conversion of the depleted UF6 to oxide, and
significant portions of the byproduct handling operations, use technology
that is in daily use at these plants.*  Id. at C-6.  Uranium oxide is the
chemical form of uranium most often used for nuclear fuel; the most common
forms of uranium oxide are U3O8 and UO2.  Depleted UF6 Management
Information Network Web Site, *Chemical Forms of Uranium,* at
.
    
UDS proposed to use a simplified version of Framatome's patented process
in operation at the Richland facility for the production of nuclear fuel. 
As the SEB's technical adviser explains, that process produces reactor
grade fuel with UO2 as its end product.  This pure, ceramic-grade UO2 is
produced by reacting the output from the fluidized bed reactor (a stable
mixture of UO2 and U3O8) with hydrogen in a separate secondary reactor. 
[DELETED].  Technical Adviser Declaration P: 8; Hearing Transcript (Tr.)
at 10-11, 13-14 (Technical Adviser).  The adviser states that this
adjustment does not require the introduction of any additional or unproven
technology.[10] Technical Adviser Declaration P: 8.  
    
The technical adviser testified that, during oral discussions, UDS
confirmed that its process produces a mixture of UO2 and U308 from the
fluidized bed reactor.[11]  Tr. at
8-9.  That the existing UDS technology currently produces U3O8 is
confirmed in other portions of the UDS proposal.  UDS advised DOE that its
process and facility designs were *reproductions* of Framatome's
*full-scale commercial plant in Richland, Washington that utilizes
patented dry conversion technology for processing UF6 to U3O8 for the
nuclear power industry.*  UDS Mar. 1, 2001 Initial Proposal, Vol. II,
Cover Letter at 1.  The proposal explains that *[Framatome's] DUF6 dry
conversion is a continuous process in which DUF6 is vaporized and
converted to uranium oxide (U3O8) in a fluidized bed reactor*; it will use
the *same technology and plant design used in [Framatome's] commercial
nuclear fuel conversion facilities in Richland and Lingen*; and the
process for DUF6 processing is *essentially identical to that used in the
commercial plants.*  UDS Sept. 28 Revised Proposal, Vol. II, at C-6, B-3,
C-24.  The process chemistry reactions contained in the proposal, which
are also found in the patent for this process, also confirm that the
process produces U308.  Id. at C-17; Tr. at 10-11 (Technical Adviser).
    
In our view, the SEB's conclusion that UDS's Richland facility produces
U308 is supported by the record.  JC is correct that the end product of
the Richland facility is not U308.  However, there is no requirement that
end products of the existing and proposed facilities be identical; the RFP
did not make replication of an existing facility a precondition for a
finding of maturity.  The RFP merely stated that DOE would evaluate the
technology and design concept an offeror proposed to produce a stable
oxide.  RFP S: M.2(a)(1), amend. No. 2, rev. 27, SOW S: C.I.  The UDS
technology currently produces U3O8 as an interim product in a [DELETED],
and the [DELETED] means that the U3O8 will become the end product in the
DUF6 conversion facilities.  In our view, the agency reasonably found that
the UDS technology nonetheless produces U308.
    
We are unpersuaded by JC's contention that DOE failed to consider the
risks associated with the UDS proposal to *scale-up* its current design,
and that these risks should have led the SEB to downgrade UDS's proposal
in the area of maturity. 
    
The fact that an offeror might have to *scale-up* its technology did not
preclude DOE from considering that technology to be mature.  The
requirement to describe the maturity of the process asked offerors to
describe the *scale of the proposed technology*; *whether it was
demonstrated or currently in production, and the production level
achieved*; the approach to scaling up to the required production level*;
and *any anticipated scaling problems and/or risks that might be
encountered.*  RFP S: L.23(c)(1)(iii).  Offerors would not have been asked
to provide this information if they had been prohibited from scaling-up
their proposed technologies. 
    
The UDS proposal explained, in detail, its proposed scale-up by a factor
of [DELETED], its prior scale-up experience, and its plan to reduce any
associated risks.  UDS Sept. 28, 2001 Revised Proposal, Vol. II, at C-48
to C-48d.  The SEB made specific findings that the proposal provided *a
comprehensive discussion of equipment components that would be replicated
from current operations as well as the rationale for scale-up or other
redesign of other components,* SEB Report at 42, and provided specific
examples to illustrate this conclusion.  Id. at 42-43.  Among other
things, the UDS proposal explains that UDS has significant successful
experience with far greater scale-up of the Framatome dry conversion
technology than that proposed here and, as discussed below, key design
features of the conversion process and other processes will not require
any scale-up.  UDS Sept. 28, 2001 Revised Proposal, Vol. II, at
C-48-C-48d.  An SEB white paper further indicates that the scale-up risk
for UDS's reactor vessels was low, citing specific reasons for this
conclusion, and that the firm's proposal to build a prototype would
minimize the risk even further.  White Paper, *Piloting/Preoperational
Testing Planned*; see also White Paper, *Risk.*
    
JC argues that each reactor used at the Richland facility processes only
[DELETED] metric tons per year, and that this level of throughput does not
meet the agency's internal guidelines for evaluating maturity.  These
internal guidelines list numerous *attributes* for consideration of a
mature approach, including whether the technology has been used in
commercial or government production at substantial scales (at least
[DELETED] metric tons per year) for longer than 1 year and, if not,
whether the technology scale-up factor was [DELETED] or less for major
process operations (reaction vessels).  Citing these guidelines, JC argues
there is no information showing that UDS has used its design to produce
U308 at substantial scales or for longer than 1 year. 
    
As an initial matter, these internal guidelines were not part of the
solicitation, and any alleged failure to comply with them is a matter of
consideration within the agency itself, rather than through the bid
protest process.  Interaction Research Inst., Inc., B-234141.7, June 30,
1989, 89-2 CPD P: 15 at 7.  In any event, the SEB's white paper shows that
the Richland facility produces [DELETED] metric tons per year for each of
its six reactors, for a nominal plant capacity of more than [DELETED]
metric tons per year.  Even if the *substantial scale* consideration were
to be limited to an individual reactor, the internal guidelines also
permit consideration of whether the scale-up factor is less than
[DELETED].  The scale-up factor here of [DELETED] falls well within this
range, even if U3O8 comprises a small portion of the uranium oxide
resulting from UDS's current fluidized bed reactors.  The SEB and SSO were
clearly aware of the throughput of the Richland facility and nonetheless
found little or no risk to UDS's scale-up based upon the information in
its proposal.  JC has pointed to no specific component of UDS's proposal
that casts doubt on DOE's conclusion, and no persuasive reason why the SEB
should have downgraded UDS's proposal. 
    
JC finally asserts that UDS proposed numerous untested design changes to
the Richland design and that DOE failed to evaluate the risk of these
changes.  JC is incorrect.  After evaluating UDS's initial proposal, DOE
asked the firm for additional information on the components or operations
that would be replicated from the existing facilities, and the components
or operations that would be newly designed or redesigned for scale-up. 
This subject was addressed during oral discussions, and expanded upon in
UDS's revised proposal, where the firm discussed each component or process
that would be newly designed or redesigned, and its rationale for
concluding that any attendant risk was low.  UDS Sept. 28, 2001 Revised
Proposal, Vol. II, at C-48-C-48d.  The SEB clearly considered these
issues, noting that UDS's proposal provided a *comprehensive discussion of
equipment components that would be replicated from current operations as
well as the rationale for scale-up or other redesign of other components,*
and commenting favorably upon UDS's specific design improvements and
technical descriptions of its operations.  SEB Report at 42-43.  Again, JC
has cited to no portion of the UDS proposal that casts doubt upon the
SEB's conclusion, which we find reasonable.[12]
    
JC objects to the SSO's statement that its design requires conversion to
United States codes and standards, *creating a risk to the design and
construction aspects of the project.*  SSS at 9.  JC argues that this
statement is inconsistent with the SEB's evaluation of its proposal as
having a significant strength for the maturity of its technology, with no
mention of technology transfer risks, and with its proposal's list of
numerous examples of its successful international transfer of technology
and its characterization of the risk of transfer as low based on the fact
that it routinely transfers process technology internationally using its
standard work processes. 
    
During discussions, the SEB asked JC to elaborate on its process for
technology transfer from the COGEMA W plants with respect to cost,
schedule, French versus United States standards, commercial equipment
designs, and spare parts.  In response, as JC notes, it provided a
detailed discussion in its revised proposal and FPR.  This information was
provided as an attachment to an SEB white paper concerning JC's technology
transfer process at the SSO's request; this white paper includes the
favorable information cited by the protester.  In its proposal's
discussion of risk management, JC included a table listing various risk
elements, their potential consequences and pre-mitigation risk rank,
mitigating actions and post-mitigation risk rank, and contingency actions
to support mitigations.  JC Oct. 1, 2001 Revised Proposal, Vol. II, at
II-183a/184a to II-183j/184j.  One risk element was the prospect that the
[DELETED].  JC identified various mitigating actions that, if taken, would
result in reducing the risk of this occurrence from high to low.  Id. at
II-183g/184g.  Hence, JC acknowledges that technology transfer issues pose
a risk. 
    
This risk did not go unnoticed by the SEB.  In summarizing the firm's
approach, the SEB report notes that *the COGEMA plant design is modular
which facilitates replication and duplication at the two plants, but the
design and operation require transfer of the technology from European
systems and standards to those of the United States.*  SEB Report at 34. 
JC has not shown any reason why the SEB could not reasonably think highly
of its technology transfer process, and still acknowledge the risk of its
failure, and has given us no basis to find that the SSO's notation of this
issue as a risk--not a high risk, or a weakness, but a risk--was
reasonable.
    
JC finally argues that the SSO irrationally concluded that its design was
not as simple to operate as UDS's proposed design, and improperly limited
his consideration regarding simplicity and maintainability to the
conversion reactor while ignoring UDS's other systems and components.
    
The record provides ample evidence that the SEB and SSO fully considered
the numerous systems and components of the UDS process, all of which were
fully described in its proposal.  In addition to its commentary on UDS's
reactor, the SEB refers to the proposal's *comprehensive discussion of
equipment components,* citing various examples; its technical description
of the off-gas processing and product solids vacuum transfer operations;
its modular process trains; its proposed overall site layout; and such
processes as cylinder handling, autoclave operations, conversion reactor
operation, oxide handling, HF recovery and processing, and waste
management.  SEB Report at 42-43, 33-34.  Comments submitted by individual
SEB members contain additional considerations of various UDS components
and systems.  In making his source selection decision, the SSO reviewed
the SEB's detailed findings.  He, too, remarked upon the finding that
UDS's *multiple, equal-sized, modular process trains . . . will provide
efficiency of design, construction, and maintenance*; that the *UDS
conversion reactor design is a relatively simple [DELETED] fluidized bed
reactor with no moving parts thereby providing a low maintenance reactor
train*; and that *the proposal . . . included specific, detailed safety
considerations in the descriptions of each of the major conversion
facility operations.*  SSS at 8.   
    
As the contemporaneous documentation highlights, there were few
distinctions between the two proposals in this area.  One distinction was
the technology transfer issue noted above, and another was UDS's use of a
[DELETED] fluidized bed reactor with no moving parts, in contrast with
JC's two-stage, rotary kiln with more maintenance requirements than the
fluidized bed reactor.  SEB Report at 33-34.  It is no mystery that the
SSO focused on these distinctions in making his source selection
decision.  According to the white paper on this issue, the contents of
which are unrefuted by JC, the rotary kiln has a number of moving parts
that are maintained and/or replaced as part of a scheduled maintenance
program that requires major shutdown of the line for maintenance on moving
parts.  The SEB found that average availability of the W-2 plant has been
[DELETED] percent since start-up, and that, in 1999, the W plant's
downtime for forced outages due to [DELETED] was [DELETED] days, with the
[DELETED] responsible for [DELETED] percent of all forced outages that
year.  White Paper, *Maintenance on Reactor Moving Parts.*  In contrast,
the SEB found that UDS's fluidized bed reactor has no moving parts that
require maintenance, and that over a 4-year period of operations at
Richland, there was no unscheduled reactor downtime and the actual
availability was more than [DELETED] percent.  Id.  JC has given us no
basis to conclude that DOE should have placed more emphasis on the number
of moving parts or simplicity of any other of UDS's systems, and its
assertion that fluidized bed reactors in general have failure modes that
were not evaluated is not tied to any feature of the fluidized bed reactor
actually proposed by UDS.  As a result, we have no basis to find the
conclusions of the SEB or the SSO unreasonable.
    
Technology and Design--Waste and Conversion Product Disposition
    
The SEB rated both proposals *good* under the waste and conversion product
disposition subcriterion, assigning the UDS proposal 84 points and the JC
proposal 83 points.  The SEB evaluated JC's proposal as having a
significant strength, and UDS's proposal a strength, for the soundness of
their approaches, and evaluated UDS's proposal as having a significant
strength, and JC's proposal a strength, for their approaches to waste
minimization.  SEB Report at 47-48.  The SEB explained that UDS had an
excellent approach to waste minimization, a comprehensive description of
expected waste streams, achieved waste minimization by avoiding generating
liquid process waste effluents, and would make a single waste disposal
package from the heels and heel cylinders.  The SEB concluded that UDS had
the fewest waste streams of all the offerors.  Id. at 46.  The SEB found
that the JC proposal provided an excellent and comprehensive
identification of waste streams, clear descriptions of waste properties,
characteristics, and management requirements, and an approach to waste
material compaction that should reduce the costs of disposal.  Id. 
    
The SSO acknowledged that the SEB rated the UDS proposal higher than the
JC proposal, and agreed with this relative rating, finding that this
aspect of the evaluation was a minor discriminator in favor of UDS.  The
SSO supported his conclusion by emphasizing that the UDS approach was more
heavily based on the principle of waste minimization that would be
achieved by avoiding the generation of certain significant waste streams. 
Specifically, the SSO stated that UDS's design would not produce any
liquid process waste effluents, and that it had the fewest waste streams
of the offerors.  SSS at 9.
    
JC contends that DOE erred by crediting UDS with an approach that resulted
in no liquid waste effluents, citing notes of the SEB's technical
advisers, based upon their evaluation of initial proposals, in which they
express skepticism regarding UDS's ability to eliminate liquid waste
effluents.  JC claims that there is no evidence the SEB ever addressed
these concerns.  This claim is not supported by the record.
    
After the evaluation of initial proposals, and after the technical
advisers made their notes, the topic of waste and conversion product
disposition was the subject of a
2-hour exchange during oral discussions, and UDS provided additional
related information in its revised proposal.  The SEB's consideration of
this matter is reflected in one of the white papers, in which the SEB
states that, in the FPRs, each offeror *had an extensive analysis of waste
streams that include the identification, properties, and characteristics
of all of the significant waste streams expected by each different
approach.*  White Paper, *Waste Stream Identification.*  The SEB explained
that *UDS has substantially fewer waste streams because they have gone to
great lengths to minimize the generation of waste streams to simplify
operations and reduce costs.  The ones avoided . . . have been noted along
with the means by which they would avoid them. . .*  Id.  The SEB clearly
considered the details of UDS's proposal in this regard, and expressed no
concerns about its ability to eliminate liquid waste effluents.  On the
contrary, in their individual comments, two SEB members specifically noted
that the UDS approach *eliminates a liquid waste stream,* and that its
process *has no liquid effluents.*  SEB Member Comments
at 5, 9.  JC has not cited to any portion of the UDS proposal that
undercuts the agency's conclusions, which we find reasonable.
    
JC also argues that the SSO failed to give it credit for its waste
minimization, its reduced amount of U308, or its reuse of materials,
citing the strength the SEB assigned to its proposal for its approach to
waste minimization, the fact that UDS's oxide volume was significantly
greater than that of JC for converting a similar quantity of DUF6, and the
fact that JC's waste disposal costs were slightly less than that of UDS. 
See SEB Report at 48 and 88-89.   
    
There is no requirement that a source selection official restate each of
an offeror's strengths when comparing proposals, and nothing unreasonable
about the decision to not elevate any of these strengths to the selection
decision.  Medical Dev. Int'l,
B-281484.2, Mar. 29, 1999, 99-1 CPD P: 68 at 14.  Here, the record shows
that, in considering whether the differences between the two proposals
amounted to discriminators, the SSO reviewed the entire SEB report, which
described all of the aspects of JC's proposal to which the protester
refers.  The fact that he did not specifically mention these features does
not mean he did not consider them, and there is no requirement that he
give them the credit JC apparently believes it was due.  While the SEB
evaluated the JC proposal as having a strength for its approach to waste
minimization, it evaluated the UDS proposal as having a significant
strength for its approach; given the offerors' differing approaches, the
protester has given us no basis to question the finding that the UDS
approach was stronger.  In addition, the SEB found that the advantage to
the [DELETED] was offset by efficiencies inherent in the UDS approach to
transporting its conversion product.  SEB Report at 89.  JC has given us
no basis to find unreasonable the SSO's consideration of this matter,
which extended to all of the information in the SEB report, and no reason
to question his conclusion that the issue warranted a minor discriminator
in favor of the UDS proposal.
    
Past Performance
    
The SEB assigned the UDS proposal 91 points and the JC proposal 69 points
under the past performance criterion.  The SEB evaluated the UDS proposal
as having a significant strength for its client performance ratings since
the overall references for two of its team members ranged from above
average to excellent; one of these members was rated excellent in
adherence to cost, schedule and performance, and environment, safety, and
health (ES&H); and two members were rated above average in the same
categories.  The SEB also evaluated UDS's proposal as having a strength
based on its overall safety statistics, and as having a strength for its
ES&H compliance because none of the members reported having received any
notices of violation (NOV);[13] Framatome received only two Nuclear
Regulatory Commission (NRC) infractions in the past 5 years, and these
resulted in no fines or penalties.  SEB Report at 77.  In contrast, the
SEB evaluated the JC proposal as having only a strength (rather than a
significant strength) for its client performance ratings since the client
responses for both team members were overall above average; one was rated
above average for adherence to cost, schedule and performance; and both
were rated well above average in ES&H.  The SEB evaluated JC's proposal as
having a significant weakness for its NOVs, finding that, in 1999-2001,
the Bechtel Jacobs Company (BJC) received 14 NOVs at the ETTP, Paducah,
and Portsmouth sites.  The BJC holds DOE's Oak Ridge Environmental
Management and Integration contract.  Jacobs performs under that contract
as member of the BJC, and JC relied upon this experience in its
proposal.  
    
The SEB stated that UDS was rated highest because of the favorable report
on all of its members with regard to their client performance ratings,
their overall safety statistics, and their ES&H compliance status.  The
SEB stated that JC was rated significantly lower than UDS, and that its
score reflected both a positive report of above average responses for past
clients of Jacobs and COGEMA and reports regarding several NOVs received
by the BJC.  Id. at 75.
    
JC argues that the SEB's evaluation of these NOVs was irrational.  Citing
the only portion of the written record addressing the matter--the SEB
report's statement that the BJC received 14 NOVs between 1999 and
2001--the protester asserts that the SEB engaged in a simple
number-counting exercise without examining the content or context of the
violations.  In contrast, JC asserts, the SEB did examine the context and
*explained away* UDS's NRC infractions.  Protester's Comments at 57.  JC
also asserts that the SSO repeated the SEB's error and magnified it by
declaring UDS's past performance to be a major discriminator in favor of
UDS.
    
Our Office will examine an agency's past performance evaluation only to
ensure that it was reasonable and consistent with the stated evaluation
criteria and applicable statutes and regulations, since determining the
relative merit of an offeror's past performance is primarily a matter
within the contracting agency's discretion.  OSI Collection Servs, Inc.;
C.B.Accounts, Inc., B-286597.3 et al., June 12, 2001, 2001 CPD P: 103 at
5.  However, we will question the agency's conclusions where they are not
reasonably based or are undocumented, and, in some cases, we have found it
irrational to focus only on the number of performance problems.  See Green
Valley Transp., Inc., B-285283, Aug. 9, 2000, 2000 CPD P: 133 at 4.
    
During discussions, DOE notified JC that its proposal was considered to
have a weakness for eight NOVs received by the BJC in 2000.  In response,
JC explained that, in analyzing these events, it had emphasized
determining the root cause, implementing corrective actions, preventing
future occurrences, and understanding the current regulatory environment. 
The firm explained that it takes each NOV very seriously and committed to
a disciplined and organized approach toward avoiding real and perceived
compliance problems that might result in NOVs.  These explanations were
followed by a detailed summary of each of 12 NOVs received by the BJC in
2000 and 2001.  In response to the SEB chair's subsequent request, JC
provided information on two NOVs the BJC had received in 1999.
    
Since the only contemporaneous analysis of these NOVs is the sentence
contained in the SEB report indicating their number, our Office conducted
a hearing to ascertain the nature of the agency's evaluation of the NOVs. 
The SEB chair explained that the SEB members held conversations among
themselves about all of the NOVs, based upon the summaries in JC's
proposal and upon the personal experience of several SEB members,
including one whose home base was the Paducah site, the subject of most of
the NOVs.  The SEB chair stated the SEB considered the substance and
nature of the NOVs, the fact that some were more serious than others, the
fact that none of them involved fines or penalties, and the total number
of NOVs.  Considering all of these factors together, the SEB concluded it
had sufficient concern to find the matter a significant weakness.[14]  Tr.
at 61-63, 65-67, 91, 77-80 (SEB Chair).     
    
JC argues that if DOE had conducted further review, it would have learned
that some NOVs were issued because DOE declined to fund the activities
required to avoid them and were for conditions that preexisted the BJC's
assumption of responsibility; several were issued to DOE and not to the
BJC; and at least one is an NOV that DOE is challenging.
    
DOE is correct that, in its extensive summary of these NOVs, JC itself
made no effort to apprise the agency of any of this allegedly mitigating
information.  JC, on the other hand, has raised questions about whether
this mitigating information on a DOE contract was too close at hand for
the agency to ignore.  See International Business Sys., Inc., B-275554,
Mar. 3, 1997, 97-1 CPD P: 114 at 5.  We conclude, however, that we need
not discuss this issue further because the record shows that, even if the 
SEB had not evaluated JC's proposal as having any weakness at all for
these NOVs, the UDS proposal's evaluated superiority would remain.  UDS's
proposal was evaluated as having a significant strength for its client
performance ratings, as opposed to JC's strength in this area, and the UDS
proposal was also evaluated as having a strength for its overall safety
statistics.  The SSO read the summary of the NOVs provided in JC's revised
proposal and considered their relative severity, Tr. at 87 (SSO), but made
no reference to the issue of NOVs in his source selection statement. 
Instead, he focused on the differences between the offerors' client
performance ratings in finding that the past performance criterion was a
major discriminator in favor of the UDS proposal.  SSS at 11.  Moreover,
even if the SSO had not found this criterion to be a discriminator at all,
given the weight of the other discriminators in favor of the UDS proposal,
and the relative insignificance of this criterion (worth 5 percent of the
total technical and business management evaluation score), we cannot
conclude that JC was prejudiced by any impropriety on the agency's part. 
Competitive prejudice is an essential element of every viable protest. 
Lithos Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD P: 379 at
5. 
    
JC finally argues that DOE improperly failed to give it an opportunity to
respond to adverse past performance information concerning COGEMA's
performance of one of its contracts, citing the requirement that
contracting officers point out deficiencies, significant weaknesses, and
adverse past performance information to which the offeror has not yet had
an opportunity to respond.  FAR S: 15.306(d)(3).
    
One of the past performance questionnaires DOE evaluated concerned
COGEMA's performance as a member of the team awarded a DOE contract to
design, construct, and operate a fuel fabrication facility.  The response
included no narrative, but rated COGEMA between average and exceptional in
its performance, with [DELETED] ratings for the firm's [DELETED].  Citing
this project, the SEB's technical advisers found that COGEMA had performed
in a manner that met or exceeded expectations in all areas, including
budget and schedule performance.  Again, the SEB evaluated JC's proposal
as having a strength for its client ratings and noted that its members
had, overall, above average ratings.  SEB Report at 76.  In response to
the SSO's request, the SEB contacted two additional DOE personnel
associated with the project for their impressions of COGEMA's
performance.  One of these personnel stated that COGEMA was *highly* or
*extremely* capable for various reasons, and another stated that the
project had undergone notable overruns in cost and schedule due to
[DELETED], but that COGEMA had been very cooperative, positive, and
straightforward in working to resolve these problems.  White Paper,
*Summary Information Concerning the MOX Project at Savannah River.*
    
We agree with DOE that there was no need to raise this information with JC
because the agency did not consider it to be adverse.  The SEB report does
not even mention this contract and the SEB evaluated the proposal as
having a strength for the responses received from its clients, including
this response.[15]  In any event, JC's statement that it *may have
explained its past performance to demonstrate that the agency's view was
unreasonable,* Supplemental Protest at 24, is insufficient to show that
its standing might have improved even if DOE had raised this matter with
the firm.   
    
EVALUATION OF COST PROPOSALS
    
JC argues that DOE arbitrarily added $[DELETED] million in disposal costs
to its cost proposal and improperly discounted its proposed revenue
streams.
    
Where an agency evaluates proposals for the award of a cost-reimbursement
contract, an offeror's proposed estimated costs of performance are not
dispositive, since, regardless of the costs proposed, the government is
required to pay the contractor its actual and allowable costs.  CWIS, LLC,
B-287521, July 2, 2001, 2001 CPD P: 119 at 3.  Accordingly, a cost realism
analysis must be performed when a cost-reimbursement contract is
contemplated in order to determine the probable cost of performance for
each offeror.  FAR S: 15.404-1(d)(2).  A cost realism analysis is the
process of independently reviewing and evaluating elements of each
offeror's proposed cost estimate to determine whether the proposed cost
elements are realistic for the work to be performed, reflect a clear
understanding of the requirements, and are consistent with the methods of
performance and materials described in the offeror's technical proposal. 
FAR S: 15.404-1(d)(1).  Our review is limited to determining whether an
agency's cost realism analysis was reasonably based and not arbitrary.  NV
Servs., B-284119.2, Feb. 25, 2000, 2000 CPD P: 64 at 7. 
    
Disposal Costs
    
If neither DOE nor the contractor identified a market for the DUF6
conversion products or the empty cylinders, these materials were to be
processed, packaged, and certified to meet the waste acceptance criteria
at the federal disposal facility or at another licensed low-level waste
(LLW) repository.  SOW S: IX.7.  If the federal disposal facility was
chosen, the contractor was to transport the material to that site and
transfer the material to the operating contractor.  If another licensed
LLW facility was chosen, the contractor was to be responsible for all
disposition actions.  Id.  The federal disposal facility is at DOE's
Nevada Test Site (NTS) and, currently, the only viable commercially
licensed private disposal facility is Envirocare of Utah.  *Assessment of
Preferred Depleted Uranium Disposal Forms* at 8, RFP web site at
.
    
Offerors were to provide proposed costs for the waste packaging,
transportation, and disposal for each conversion product and waste.  RFP
S: L.24(g)(4)(iv).  For the sake of uniformity, DOE required offerors
proposing to use NTS as the disposal site to use a disposal fee of $9 per
cubic foot ($9/ft3).  Id.   
    
In its proposal, JC stated that its options for LLW disposal included
[DELETED] and [DELETED].  The firm explained that it had examined the
life-cycle costs of disposal at each facility and, based on its analyses,
*plan[ned] to dispose of LLW at [DELETED]* based on the substantial
savings that could be achieved based on its [DELETED].  JC Oct. 1, 2001
Revised Proposal, Vol. II, at II-91.  JC stated it was aware of activities
at [DELETED] that might decrease transportation and disposal costs at that
site, and would reevaluate its disposal options upon award and at the
start of conversion operations to determine the most cost-effective
disposal option.  Id. at II-89a, II-91, II-107.  Notwithstanding its
stated *plan to dispose of LLW at [DELETED],* the firm's cost proposal
stated that it would use the rate reflected in [DELETED].  JC Oct. 1, 2001
Revised Cost Proposal, Book 1, at III(g).1-33.  Again, this rate was
provided for offerors opting for [DELETED] as the disposal site.    
    
By letter dated October 19, DOE acknowledged JC's proposal to use
[DELETED] and stated, *The tipping fee in the revised proposal is
$[DELETED], which is the [DELETED] rate.  The 'debris' tipping fee for
[DELETED] is $[DELETED], which is the rate charged in [DELETED].  Why is
the [DELETED] rate used?*  Oct. 19, 2001 Discussions Letter at 2, Question
No. 8.
    
In response, JC said it elected not to enter into a contract for disposal
with [DELETED].  The firm explained that [DELETED] had indicated it would
provide a disposal price that, when combined with [DELETED] costs, would
be less than the price to transport to and dispose at [DELETED], assuming
the [DELETED] rate was $[DELETED].  JC asserted its belief that [DELETED]
would be willing to provide a more viable price as [DELETED] rates
continued to decrease or remain low, and that it would be in DOE's best
interest for it to establish disposal contracts at both sites.  JC said it
used the disposal rate in the RFP as its basis for estimate for disposal
at either site.  The firm added that waste disposed of at [DELETED] would
not be designated as *debris,* but would be placed, in its container,
within the [DELETED].  JC Oct. 26, 2001 Responses to Discussions at 14. 
The protester provided no evidence of [DELETED] indication of a more
favorable price; no evidence that its waste would be placed in [DELETED]
designation; and no rate of any kind from [DELETED], including one
associated with this [DELETED] designation.  In addition, JC answered
DOE's question regarding its transportation costs to dispose of the waste
by providing a cost based on [DELETED].  Id. at 18.
    
The protester's FPR said that it had approved profiles for disposal of
U308 at [DELETED] and that [DELETED] had reviewed its profiles and
approved the waste for disposal.  JC FPR, Vol. II, at II-82c.  However,
while the firm reiterated its plan to reevaluate its disposal options upon
award and at the start of conversion operations, the firm specifically
stated that its *chosen LLW disposal site* was [DELETED].  Id. at II-106,
II-107.  Notwithstanding the fact that its *chosen LLW disposal site* was
[DELETED], the firm's cost proposal based its estimated disposal cost on
the RFP's estimate of $[DELETED] for the use of [DELETED].  Id. at
III(g).1-24.
    
The SEB report contained an extensive discussion of the different
approaches offerors took for disposing of the material resulting from
conversion operations and other miscellaneous wastes and of the impact of
these differences on their relative costs.  SEB Report at 87-90.  Again,
JC proposed to wash the empty cylinders, modify them, and reuse them as
product packaging containers for both the conversion product solids and
the cut-up pieces of other cylinders for disposition at its *chosen LLW
disposal site,* [DELETED].  In contrast, UDS proposed to [DELETED], to
compact the cylinders [DELETED], and to dispose of the resulting material
at [DELETED]; UDS proposed to ship the conversion product solids in
[DELETED] to [DELETED]. 
    
The SEB stated that disposal costs for both offerors were based on
[DELETED] rates for *soil-like* wastes and *debris,* respectively.  The
proposed disposal rate for UDS's [DELETED] was that applicable to
*soil-like material,* and UDS would be charged the higher *debris* rate
for disposal of the [DELETED].  The SEB stated that the disposal rate for
the conversion product at [DELETED] proposed by JC was $[DELETED] based on
[DELETED] rates, and noted that DOE had questioned the rate during
discussions but the firm responded by stating it believed it could obtain
a rate comparable to the [DELETED] rate from [DELETED].  SEB Report at
89.  DOE evaluated this rate as being too low, and estimated the probable
disposal cost for JC using the higher *debris* rate, for an upward
adjustment of $[DELETED] million.  Id. at 89-90.
    
JC argues that DOE arbitrarily rejected its cost strategy and, instead,
irrationally used the highest cost option--the *debris* rate from
[DELETED]--as its probable disposal rate.  The protester asserts that it
was irrational to use the debris rate when it stated that its waste would
not be designated as debris but would be placed within [DELETED]
designation.
    
The record does not show that DOE rejected JC's approach but, rather, that
the firm did not provide sufficient information to permit the agency to
evaluate its proposed disposal costs as its most probable disposal
costs.[16]  JC's *chosen LLW site* was [DELETED], but it used the rate
provided for [DELETED] without providing any support for its assumption
that [DELETED] would provide a comparable rate and, in fact, without
providing any rate at all for disposal at [DELETED].  JC stated its waste
would not be treated as *debris* but would be placed within [DELETED], but
the firm provided no supporting documentation of this new designation, no
evidence that its waste would fall within that designation, and no
corresponding rate for that designation.[17]  Under the circumstances, we
cannot fault DOE for its decision not to rely upon the firm's proposed
disposal costs.
    
We are not persuaded by JC's argument that DOE's choice to base its
adjustment of its costs on the Envirocare rates was irrational when there
was an available lower cost alternative, NTS, whose use would be
consistent with its strategy to minimize costs associated with waste
disposal.  JC specifically stated that its *chosen LLW site* was
Envirocare, and provided transportation costs based upon that site.  DOE
correctly asserts that it would have been inappropriate to rewrite JC's
proposal to shift disposal sites.  Any methodology used by an agency to
analyze costs must only be reasonably adequate and provide some measure of
confidence that the rates proposed are reasonable and realistic in view of
other cost information reasonably available to the agency from its own and
outside sources.  See Radian, Inc., B-256313.2, B-256313.4, June 27, 1994,
94-2 CPD P: 104 at 7.  Under the circumstances, we find DOE's actions to
be reasonable.
    
JC finally argues that DOE arbitrarily used the higher *debris* rate when
evaluating its proposal but used the lower *soil-like* rate when
evaluating the UDS proposal.  We do not agree.  As noted above, the
offerors used different approaches.  UDS proposed to dispose of its
conversion product in [DELETED] at the *soil-like* rate, and JC proposed
to dispose of its conversion product in the steel cylinders themselves,
without providing any rate.  [DELETED] waste acceptance guidelines define
compactable soil as having a graded material that will pass through a
4-inch size-grading device and as having a specified bulk density. 
[DELETED].  The guidelines define *debris* as any radioactive waste for
disposal other than soil, including such things as metal.  Id.  JC, which
proposed to dispose of its waste within large, modified steel cylinders,
has made no persuasive argument that these steel cylinders fall under the
definition of *soil-like* materials and, in fact, did not propose to use
the lower *soil-like* rate.[18]  JC's assertion that UDS's conversion
product does not qualify for the *soil-like* rate is unaccompanied by any
dispute of the part of UDS's proposal analyzing the firm's proposed
disposal costs in support of its position.[19]  As a result, we have no
basis to question DOE's adjustment to JC's proposed disposal costs or its
acceptance of UDS's proposed disposal costs.
Proposed Revenue Stream
    
JC argues that DOE arbitrarily reduced its proposed revenue stream from
the sale of natural feed equivalent UF6.  The firm's proposal included
[DELETED], the process of [DELETED] with assays of a certain concentration
and selling the [DELETED] materials to [DELETED].  DOE found that JC had a
*soft commitment,* as opposed to a signed contract, for these purchases
and, based on the speculative nature of the transaction, assessed the
probability of success at 30 percent and reduced the proposed revenue
accordingly.  SEB Report at 92-93. 
    
The RFP required offerors to provide *sufficient detail for proposed
revenue from sale of byproduct to permit DOE to evaluate the
reasonableness and cost realism of the proposed revenue,* and indicated
that *consideration [would] be given to the extent that viable end product
use/reuse [was] proposed by the offeror* in connection with the technical
proposal.[20]  RFP S:S: M.2(a)(1), L.24(g)(4)(v).  However, the RFP did
not provide that proposed revenue streams would be deducted from an
offeror's proposed costs.  AR at 79; see SSS at 11.  Moreover, JC's own
proposal supports DOE's conclusion that the proposed revenue was
speculative.  The firm explained that the economics associated with the
reuse of [DELETED] for [DELETED] has changed and *will continue to change
over time,* JC FPR, Vol. II, at II-72a, and goes on to discuss various
conditions under which the [DELETED] could be sold, including a scenario
where zero revenue would result.  Id.  Under the circumstances, JC has
given us no basis to find DOE's evaluation unreasonable.
    
SOURCE SELECTION DECISION
    
JC argues that the SSO improperly *overturned* several of the SEB's
conclusions and that his source selection decision was otherwise
irrational.[21] 
    
Citing the scant point differences between the two proposals, JC argues
that the SSO improperly eliminated its evaluated advantages under the
business management, ES&H, and experience criteria by *overturning* the
SEB's findings and concluding that the UDS proposal was superior to its
proposal under the business management criterion, and that the two
proposals were substantially equal under the ES&H and experience
criteria. 
    
Point scores and adjectival ratings are only guides to assist source
selection officials in evaluating proposals; they do not mandate automatic
selection of a particular proposal.  PRC, Inc., B-274698.2, B-274698.3,
Jan. 23, 1997, 97-1 CPD P: 115 at 12; Grey Adver., Inc., supra.  Those
officials have broad discretion in determining the manner and extent to
which they will make use of not just the point scores or adjectival
ratings, but the written narrative justification underlying those
technical results, subject only to the tests of rationality and
consistency with the evaluation criteria.  Development Alternatives, Inc.,
B-279920, Aug. 6, 1998, 98-2 CPD P: 54 at 9; Midwest Research Inst.,
B-240268, Nov. 5, 1990, 90-2 CPD P: 364 at 4.  Where, as here,
higher-level officials determine that the lower-level evaluators' ratings
do not reflect the actual technical differences in proposals and the award
is protested, the agency must show that its ultimate determination is
reasonable, with sufficient detail to permit our Office to review the
determination for reasonableness.  KPMG Consulting LLP, B-290716,
B-290716.2, Sept. 23, 2002, 2002 CPD P: __ at 11; Chemical
Demilitarization Assocs., B-277700, Nov. 13, 1997, 98-1 CPD P: 171 at 6. 
A source selection official's failure to specifically discuss every detail
regarding the relative merit of the proposals in the selection decision
document does not affect the validity of the decision if the record shows
that the agency's award decision was reasonable.  Development
Alternatives, Inc., supra.  
    
The SSO provided a detailed written analysis supporting his findings
based, not on the offerors' point scores, but on the SEB's narrative
discussion supporting those point scores, additional written and oral
information provided by the SEB, and both offerors' technical and business
management proposals.  While JC argues that this analysis ignored certain
strengths in its proposal identified by the SEB, it largely points to
certain areas where its proposal received an additional or different
strength not shared by UDS, or to certain areas where its proposal
received slightly higher point scores, without persuasively explaining why
these differences represent actual technical superiority; in our view,
this amounts to mere disagreement with the agency's evaluation which does
not render it unreasonable.  KPMG Consulting LLP, supra.  By way of
example, we discuss below JC's arguments concerning the business
management and experience criteria.
    
Under the business management criterion, the SEB rated JC's proposal
*outstanding,* with a score of 137, and rated UDS's proposal *good,* with
a score of 132.  SEB Report at 63.  Each proposal was evaluated as having
a significant strength for certain key personnel and a strength for
certain other key personnel; both proposals were evaluated as having a
strength for their organizational structures.
    
The SEB rated JC's proposal highest based primarily on its strong key
personnel, which included a strong [DELETED] with combined relevant
experience considered to be good in large project delivery and excellent
in uranium processing operations.  The SEB also noted that the firm's
proposed team included several other strong key personnel, most notably
the process integrity manager and process engineering manager, who
together would be responsible for the transfer of technology, and the
three-site cylinder integration manager, who is performing this role in
his current position.  SEB Report at 63.  The SEB rated the UDS proposal
only slightly lower, and noted that it displayed strengths in several
strong key personnel and a notably straightforward and efficient
organization.  The SEB found that UDS's proposed design/engineering
manager was exceptionally strong in uranium processing and conversion
design; its proposed project manager was also strong, with broad-based,
good experience in large project delivery, operations, uranium processing,
and demonstrated project leadership; and that several other key personnel
were also strong and particularly well-suited for their roles.  Id. at 64.
    
The SSO acknowledged the distinction drawn by the SEB but disagreed with
its relative ratings.  The SSO found the overall team of UDS key personnel
to be the strongest, with particular strengths in its proposed project
manager, design/engineering manager, and operations and maintenance
manager.  The SSO stated that the UDS project manager had *the best
overall relevant experience to enable him to manage all aspects of the
project, with good experience in the design and construction of large
processing facilities, broad program management experience focusing on
waste management systems, good experience in uranium processing, and
demonstrated good leadership capability.*  SSS at 9.  The SSO also stated
that UDS's design/engineering manager had *excellent relevant experience
as the inventor and designer of the proposed dry conversion process used
in all of Framatome's currently operating conversion plants.*  Id. at
9-10.  The SSO noted that JC proposed a [DELETED] with complementary areas
of expertise.  He stated that this was a reasonable approach to matching
their skills, but found it to be less favorable than the streamlined
management and accountability provided by UDS's [DELETED].  He explained
that, in addition to the strength of the UDS key personnel team, UDS's
proposed organization was more effective than JC's, permitting better
accountability for the project.  As a result of these distinctions, the
SSO explained, he found that UDS was stronger than JC under this criterion
and concluded that it was a major discriminator between the two
proposals.  Id. at 10 
    
JC argues that the SSO's praise of UDS's project manager,
design/engineering manager, and operations and maintenance manager
improperly failed to analyze its equivalent key personnel, whom the SEB
evaluated at least as favorably as their UDS counterparts.  The protester
complains that the SSO did not even mention the SEB's evaluation of its
[DELETED], which was evaluated as superior to the UDS [DELETED], and
ignored its process engineering manager, who was evaluated as having a
significant strength. 
Again, there is no requirement that a source selection official restate
each of an offeror's strengths when comparing proposals, and nothing
unreasonable about the decision to not elevate any of these strengths to
the selection decision.  Medical Dev. Int'l, supra.  The SSO reviewed the
SEB's findings in full as to both offerors' key personnel, and concluded
that UDS had the stronger team, placing particular emphasis on its
leadership team.  Since the offerors had different approaches to staffing
key personnel positions, and different numbers of key personnel, a mere
count of how many key personnel received strengths or significant
strengths has little meaning.  In any event, outside of leadership
positions, both offerors had three key personnel evaluated as having
significant strengths. 
    
The SEB evaluated each offeror's leadership personnel for project
leadership and for three considerations bearing on their relevant
experience:  large project delivery, operations, and uranium processing. 
SEB Report at 112-114.  JC proposed a [DELETED] comprised of a [DELETED]. 
The [DELETED] was considered to have acceptable project leadership,
operations experience, and uranium processing experience, and was
considered a strength for his large project delivery experience and
overall.  The [DELETED] was considered to be a significant strength for
his project leadership, operations experience, and uranium processing
experience; a weakness for his large project delivery experience; and a
strength overall.  On the other hand, UDS proposed a [DELETED], who was
considered to be a strength in every area of consideration and overall. 
After considering the SEB's findings as to each of these personnel, the
SSO clearly found the UDS key personnel team to be the strongest and
provided his rationale to support this finding.  JC has not shown that the
SSO's judgment was unreasonable.[22]    
    
JC also argues that the SSO's consideration of the relative effectiveness
of the two offerors' management structures failed to consider the SEB's
finding that its organizational structure was *direct, efficient, and
appropriate for accomplishing the SOW, with unambiguous areas of authority
and roles and responsibilities well defined.*  SEB Report at 66.  There is
no evidence that the SSO did not consider this strength in the firm's
proposal.  However, the SSO also considered the SEB's evaluated strength
for UDS's organizational structure in which the SEB stated that the firm's
organization was *straightforward, flat, and efficient, and should be
effective in accomplishing the SOW.*  Id.  Moreover, in summarizing its
views, the SEB took care to highlight a distinction between the two
proposals, noting that UDS had a *a notably straightforward and efficient
organization.* Id.  Under the circumstances, JC has given us no basis to
conclude that the SSO unreasonably judged that the UDS proposal was
superior and that the differences between the two proposals amounted to a
major discriminator in favor of the UDS proposal.
    
Under the experience criterion, the SEB rated both proposals
*outstanding,* assigning the UDS proposal 94 points and the Jacobs COGEMA
proposal 98 points; both proposals were evaluated as having a significant
strength for the collective experience of the members of their respective
LLCs.  The SEB explained that both offerors demonstrated outstanding
strength in relevant experience for accomplishing the SOW, and that, while
each offeror brought different experience to its proposal, there were no
major distinctions between the proposals with regard to government and
commercial experience.  SEB Report at 71.  The SEB scored the JC proposal
highest based on the 16-year experience of COGEMA in the design,
construction, and operation of its DUF6 conversion W plant in France and
Jacobs' outstanding experience in the delivery of major projects including
design, construction, and project management.  Id.  The SEB rated the UDS
proposal *somewhat lower* but also outstanding, explaining that its team
brought the outstanding UF6 conversion technology transfer experience of
Framatome, including design, construction, and conversion operations; the
waste management and disposition experience of Duratek, and the
engineering, procurement, and construction experience of Burns and Roe. 
Id. 
    
The SSO acknowledged the SEB's slightly higher score for the JC proposal,
but found the proposals to be *substantially equal.*  SSS at 10.  The SSO
went on to discuss, in detail, the *excellent* experience of the UDS team
and the *extensive* experience of the JC teaming partners.  Id.  JC's
argument that the SSO ignored the reason for its higher score--its 16
years of experience with the W plant--is without basis.  The SSO did not
ignore this experience but specifically referenced it in finding the two
proposals substantially equal.  The SSO's conclusion is in consonance with
the SEB's statement that, *[w]hile each offeror brings different
experience to its proposal, there are no major distinctions among
proposals with regard to government and commercial experience.*  SEB
Report at 71. 
    
The record does not support JC's remaining allegations regarding the
source selection decision.  We have found that the SSO reasonably
concluded that UDS submitted the superior technical proposal, based upon
his consideration of the proposals' relative merits.  The SSO also found
that UDS's probable cost and its combined probable cost and maximum fee
for the contract period were lower than those of JC, and that, for the
post-contract period, UDS's NPV probable cost was also lower than that of
JC.[23]  He acknowledged that the offerors proposed potential revenues
from the sale of conversion products and by-products, but stated that
there was uncertainty associated with obtaining these revenues for reasons
external to the offerors, and that the RFP's evaluation criteria did not
indicate that potential revenues would be deducted from probable costs. 
Further, he explained that, if probable revenues were considered as an
offset to total probable cost and fee for the contract period, UDS's costs
would be slightly higher than those of JC, but if probable revenues were
considered as an offset to total probable NPV cost for the post-contract
period, UDS's costs would be lower than those of JC.  In any event, the
SSO concluded that *[i]f probable revenues are considered as an offset to
probable cost, I find that the potential savings in the contract period do
not sufficiently offset the advantage of the overall superior proposal of
UDS.*  SSS at 11-12.  Considering this specific finding, and the RFP's
emphasis on superior technical and business management performance over
lower costs, we find that the SSO's rationale for not giving more weight
to offerors' proposed revenues was sufficient.
    
The protests are denied.
    
Anthony H. Gamboa
General Counsel 
    
    

   ------------------------

   [1] The chemical and physical characteristics of DUF6 pose potential
health risks.  Uranium and its decay products in DUF6 in storage emit low
levels of radiation.  If DUF6 is released to the atmosphere, it reacts
with water vapor in the air to form hydrogen fluoride (HF) and a uranium
oxyfluoride compound called uranyl fluoride (UO2F2), both of which are
chemically toxic.  RFP Statement of Work (SOW) S: II.B.2. 
[2] The DUF6 stored at Oak Ridge will be transported to Portsmouth for
conversion and disposition.  SOW S: IV.A.
[3] Offerors were to propose facilities to convert all of the DUF6 within
25 years, but the contractor would only be responsible for performing the
operations for the first  5 years.  SOW S: IV.A.1.
[4] *Heel cylinders* refers to residual amounts of nonvolatile material
left in a cylinder after the removal of the DUF6.  DOE's Depleted UF6
Management Program Glossary,
.
[5] JC is a limited liability company (LLC) formed by Jacobs Engineering
Group and COGEMA, Inc.  UDS is an LLC formed by Framatome ANP, Inc.,
Duratek Federal Services, and Burns & Roe Enterprises.
[6] Although we do not here specifically address all of JC's complaints
about the evaluation of the technical and cost proposals, we have fully
considered all of them and find that they afford no basis to find the
evaluation unreasonable.
[7] The Anti-Deficiency Act, 31 U.S.C. S: 1341 (2000), which prohibits
federal expenditures in excess of appropriations, is expressly excepted
from the coverage of the Act's *notwithstanding any other provision of
law* language.
[8] Contemporaneous news accounts indicate that members of Congress were
concerned about both the delay in the procurement and the prospect that a
contract might be awarded for only one facility.  See, e.g., Malia Rulon,
*Energy Department May Choose Between Ohio and Kentucky Plants,*
Associated Press, Mar. 1, 2002; Nancy Zuckerbrod, *Measure Requires
Conversion of Uranium at Sites in Kentucky, Ohio,* Associated Press, July
18, 2002. 
[9] In any event, for the purposes of our protest jurisdiction, the extent
to which the procurement statutes and regulations may apply does not
matter.  Starfleet Marine Transportation, Inc., B-290181, July 5, 2002,
2002 CPD P: 113 at 5-6; TLM Marine, Inc., supra; Gino Morena Enters.,
B-224235, Feb. 5, 1987, 87-1 CPD P: 121 at 5.  In cases where the basic
procurement statutes are not applicable to a procurement that is within
our protest jurisdiction, we review the record to determine if the
agency's actions were reasonable.  Gino Morena Enters., supra.
    
[10] JC's argument that DOE failed to consider differences that might have
resulted from this adjustment in the level of hydrogen is untimely, since
it was not raised within 10 days of JC's receipt of the agency report
containing the technical adviser's declaration.  4 C.F.R. S: 21.2(a)(2). 
JC's generalized arguments that DOE failed to consider potential hazards
that might result from UDS's production of U308 are untimely for the same
reason and, moreover, are not tied to any specific part of the process
actually proposed by UDS.  
[11] The SEB's technical adviser states that his post-award visit to the
Richland facility confirmed what he knew from evaluating the UDS
proposal.  Tr. at 15.
[12] Since we do not agree with JC that DOE failed to consider the risks
associated with UDS's proposal to scale-up its current design or the risks
of UDS's proposed design changes, we do not discuss JC's cost arguments
premised upon these allegations. 
[13] An NOV is a notice of noncompliance with regulatory requirements
issued by a state or federal agency to the owner and/or operator of a
facility.  AR at 51.
[14] Post-protest explanations that provide a detailed rationale for
contemporaneous conclusions, as is the case here, simply fill in
previously unrecorded details, and will generally be considered in our
review of the rationality of selection decisions, so long as those
explanations are credible and consistent with the contemporaneous record. 
Jason Assocs. Corp., B-278689 et al., Mar. 2, 1998, 98-1 CPD P: 67 at 6. 
[15] There is no evidence to support JC's assertion that the SSO's comment
regarding the risk of its technology transfer process must be related to
this matter since, as discussed above, there was an independent basis for
that conclusion.
    
[16] In our view, DOE's October 19 discussions question put the firm on
notice that DOE was concerned about its *strategy* to use [DELETED] as its
disposal site while providing a disposal rate applicable to the use of
[DELETED]. 
[17] JC's provision, in its comments, of information dated November 2002
concerning this new designation was not provided in its proposal and
contains none of the information, such as rates, that DOE required for a
proper evaluation.
[18] Another offeror who planned to reuse the cylinders as conversion
product containers negotiated a contract with [DELETED] for disposal at
the *debris* rate.
[19] The main difference between the two forms of material is how they are
handled in the disposal cell, since *soil* can be disposed of directly by
placing it into [DELETED] and [DELETED] it, whereas debris requires
additional processing before disposal.  [DELETED].  UDS proposed to place
the U3O8 product in the [DELETED] and [DELETED] it to a specified
density.  UDS Sept. 28, 2001 Revised Proposal, Vol. II, at C-90. 
[20] JC's proposal was evaluated as having a strength for its approach to
end product use/reuse.  SEB Report at 41.
[21] JC's argument that the SSO's assignment and use of discriminators
always favored UDS and always diminished JC relies upon mere point-score
differentials.  As noted below and as evident throughout this decision,
point scores do not mandate automatic selection of a particular proposal. 
Grey Adver., Inc., B-184825, May 14, 1976, 76-1 CPD P: 325 at 9.  Here,
the SSO properly relied not upon mere point scores, but upon the written
narrative justification underlying those point scores in making his source
selection decision. 
[22] The SSO's conclusions are also consistent with the SEB's views.  One
SEB member said that UDS's project manager seemed to be closest to the
*ideal 'all-in-one' all-around solid 'done-it-all' well project manager
who is well experienced in the project delivery and operational areas,*
SEB Member Comments at 9, and three members expressed concern that JC's
program manager was not really in charge.  Id. at 1, 6, 9. 
[23] Citing an analysis performed by the SEB based on a cost-per-kilogram
of DUF6 processed, JC asserts that its proposal was equal to or lower in
cost than the UDS proposal, depending on the scenario used, and that the
SSO failed to conduct a cost/technical tradeoff analysis.  While the SEB
may have performed this analysis, the RFP's requirement to arrive at a
most probable cost for each proposal is not premised upon this type of
analysis.  The fact that the SSO did not rely upon this analysis is
unobjectionable.