TITLE:  A-1 Service Company, Inc., B-291568, January 16, 2003
BNUMBER:  B-291568
DATE:  January 16, 2003
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A-1 Service Company, Inc., B-291568, January 16, 2003

    Decision
    
    
Matter of:    A-1 Service Company, Inc.
    
File:             B-291568
    
Date:              January 16, 2003
    
J. Hatcher Graham, Esq., McManus & Graham, for the protester.
John D. Inazu, Esq., and Capt. Christopher L. McMahon, Department of the
Air Force, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency's evaluation of the protester's proposal as technically
unacceptable is unobjectionable where the proposal failed to adequately
address solicitation requirements even after protester had been apprised
of the concerns repeatedly during discussions.
DECISION
    
A-1 Service Company, Inc. (A-1) protests the award of a contract to L.C.
Gaskins Construction Company, Inc. (LCG) under request for proposals (RFP)
No. F09650-02-R-0010, issued by the Department of the Air Force, Warner
Robins Air Logistics Center (WR-ALC), to repair the compressed air system
and to construct a building addition to house the compressor plant at
Robins Air Force Base in Georgia.  A-1 contends that the agency's
evaluation of its proposal as technically unacceptable was unreasonable.
    
We deny the protest.
    
The RFP provided for the award of a fixed-price contract to the offeror
whose technically acceptable proposal represented the best value to the
government, considering past performance and price.  The requirements were
divided among three contract line items (CLIN).  CLIN 0001, to repair the
compressed air system in Building 83; CLIN 0002, to construct the addition
in Building 83; and CLIN 0003, to dispose of contaminated soil.  Included
with the RFP, as amended, were a number of drawings which depicted the
work to be performed under the contract, and the successful offeror was to
perform the project in accordance with the statement of work,
specifications and drawings.  RFP S: B, RFP Schedule, at 3-4; RFP
Specifications, as amended by addendum Nos. 1-5. 
    
To be considered technically acceptable, offerors were instructed to
submit proposals in sufficient detail to demonstrate their full
understanding of the solicitation requirements and not to simply restate
or rephrase the government's requirements.  RFP S: L-900(c)(a), at 31. 
Trade-offs would be made between past performance and price with offerors
whose proposals were evaluated as technically acceptable.  Id.  As
relevant here, the solicitation stated that the proposal should
demonstrate appropriate approaches to stormwater protection and responding
to unforeseen soil contamination during horizontal directional drilling. 
RFP
S: L-900(c)(b), at 31.  The referenced RFP provisions also required
offerors to address air monitoring at point of soil removal, testing of
soil samples, providing separate roll-off or drums for containing any
contaminated soil, and delivering the soil to the DRMO (Defense
Reutilization Marketing Office) contractor for disposal.  Cost for
disposal only was to be reimbursed under the unit price line item.  RFP
Drawing Plate C-103, Note 2, as amended by addendum No. 2 P: I(c), June
27, 2002, at 1.
    
The agency received initial proposals from A-1, LCG, and a third offeror
(not relevant here) by the July 29 extended closing date.  The agency
evaluators determined that both proposals were technically unacceptable
but were nevertheless capable of being made acceptable.  Contracting
Officer's Statement at 2.  The agency conducted discussions using written
evaluation notices (EN) to inform the offerors of the specific
deficiencies and weaknesses identified in their respective proposals.
    Agency Report (AR), exh. 6(a), ENs.  The deficiency relevant to this
protest was that A-1's technical proposal *failed to address the
directional drill requirements.*  The protester specifically was informed
that it needed to provide *all information required by Section
L-900(c)(b)(1), first unnumbered sub-paragraph.*  AR, exh. 6(a), EN No.
A1-T-01 (Aug. 28, 2002).  The referenced subparagraph required offerors to
demonstrate *appropriate approaches to unforeseen soil contamination*
during the drilling process.  RFP S: L-900(c)(b)(1), at 31.
    
On September 9, the agency conducted a second round of discussions only
with A-1 to request additional information because in response to the
initial EN the firm had not adequately addressed the unforeseen soil
contamination requirements during directional drilling as set forth in
Sections L-900(c) and M-900(b) of the RFP.  The new EN stated that the
protester's *proposal [was] technically unacceptable* because its
*[o]riginal proposal and response to [the August 28] EN fails to address
unforeseen soil contamination (Plate C-103) during the directional
drilling process.*  AR, exh. 6(c), EN No. A1-T-05 (Sept. 9, 2002).  A-1's
response was that its personnel *will be trained to become familiar with
handling of the contaminated soil.  There will be a roll off placed on
site to handle these soils.  Once the roll off is filled they will be sent
to DRMO for disposal.  Soil will be monitored as defined in the
specifications.*  Id., exh. 6(d), Protester's Response to EN No. A1-T-05. 
However, the agency concluded that the proposal remained unacceptable
because the firm had not provided any approach to determining if the soil
was contaminated and instead had merely offered to perform *as defined in
the specifications.*  Contracting Officer's Statement at 8.  By letters
dated September 20, the agency requested final proposal revisions (FPR)
from the competing firms.  In the letter to A-1, the agency stated *[y]our
proposal remains technically unacceptable in the directional drilling
process as it relates to unforeseen soil contamination during the
drilling* and added *[n]either your original proposal nor responses to
Evaluation Notices A1-T-01 and A1-T-05 adequately addressed this issue.* 
The letter further advised A-1 that the offeror's failure to cure this
deficiency would render its proposal ineligible for award.  AR, exh. 6(e),
Request for FPR (Sept. 20, 2002). 
    
The offerors submitted FPRs by the September 24 closing date, which were
reviewed and evaluated.  A-1 did address in more detail its approach to
the unforeseen soil contamination issue, proposing to ensure that *all of
the soil has been consolidated into a [20 yard] roll off* from which a
composite sample would be taken.  The sample would be analyzed and sent to
the Warner Robins project manager to determine whether the soil would be
disposed of as contaminated soil.  Once the project manager made the
decision, A-1 would schedule transportation of the soil to the appropriate
landfill.  AR, exh. 6(f), Protester's FPR at 1-2.
    
Despite this explanation, the agency concluded that:
    
A-1's final proposal remains unacceptable with respect to unforeseen soil
contamination.  First, they fail to explain how they intend to segregate
non-contaminated soil and contaminated soil.  Instead they apparently
intend to treat all soil as potentially contaminated.  This contradicts
paragraph 02951-2.4.2.d and Plate C-103, Note 2.  Second, the process
says, *Disposition of affected soil will be determined by [the Warner
Robins project manager]* and *A-1 will schedule transportation/delivery of
the soils to the appropriated [sic] type landfill.*  This indicates that
the offeror has not read Plate C-103 and the several amendments sent out
during the solicitation, since they specifically say how the soil is to be
disposed.  Third, the proposal states *20-yd rolloffs*, while Addendum 2,
item III.b.ii, states *25-yd rolloffs.*  This indicates that the offeror
does not understand that for the potentially contaminated soil, the
offeror must use DRMO's contractor for these roll-offs.
AR, exh. 8, Final Evaluation Rating Worksheet, Sept. 24, 2002, at 3. 
Based on this evaluation, A-1's proposal was eliminated from further
consideration for award.  The agency thereafter determined that LCG's
proposal represented the best value to the government, and the contract
was awarded to that firm.  Id., exh. 14, Source Selection Decision.
    
The protester essentially argues that the agency failed to properly
evaluate its FPR and that the rejection of its proposal as technically
unacceptable was therefore unreasonable.  A-1 argues that all the Air
Force's concerns were addressed in its FPR, which included an unforeseen
contaminated soil management *plan* that was previously approved and is
currently in use at Robins AFB.  Protest at 1-2.
    
The evaluation of technical proposals is primarily the responsibility of
the contracting agency.  Fishermen's Boat Shop, Inc., B-287592, July 11,
2001, 2001 CPD P: 123 at 2-3.  In reviewing an agency's technical
evaluation, we will not reevaluate the proposals; we will only consider
whether the agency's evaluation was reasonable and consistent with the
solicitation's evaluation criteria and with all applicable procurement
statutes and regulations.  B. Diaz Sanitation, Inc., B-283827, B-283828,
Dec. 27, 1999, 2000 CPD P: 4 at 6.  A protester's mere disagreement with
the agency's judgment, standing alone, is not sufficient to establish that
the agency acted unreasonably.  Fishermen's Boat Shop, Inc., supra.  As
the following examples indicate, A-1 has not provided any valid basis to
question the reasonableness of the agency's evaluation.
    
Under the RFP, offerors were required to collect contaminated soil
separately from non-contaminated soil generated during the drilling
process and to provide a separate roll-off or drum for any contaminated
soil.  RFP, Drawing Plate C-103,
Note 5, added by addendum No. 1 P: 1(f), at 1.  In its FPR, A-1 stated,
*once all of the soil has been consolidated into the roll off, a composite
sample will be collected.*  AR, exh. 6(f), Protester's FPR, at 1.  The Air
Force found that A-1's FPR did not meet the requirement that soil be
segregated, and was unacceptable, because the protester did not describe a
method of separately collecting contaminated soil and non-contaminated
soil; thus, the agency concluded that A-1 intended to treat all soil as
potentially contaminated, in contravention of the RFP.  Contracting
Officer's Statement at 5-6.  We agree.  The protester simply failed to
address how it would separately collect contaminated and non-contaminated
soil as required by the RFP; in fact, its protest comments essentially
concedes this point.  The protester argues that the spoils from the
drilling procedure will be in slurry form and *there is no physical way to
separate . . . contaminated from non-contaminated soil* in slurry form. 
Protester's Comments at 7-8.  To the extent A-1 now complains that it
could not separate the contaminated and non-contaminated soil retrieved
during the drilling process because the soil would be in a form that makes
it impossible to do so, its argument is untimely.  The solicitation, as
amended, specifically required offerors to separately collect contaminated
and non-contaminated soil.  If A-1 objected to this requirement, it was
required to protest on this ground prior to the deadline for submitting
initial proposals.  4 C.F.R. S: 21.2(a)(1) (2002).
    
As another example, the amended solicitation required that *if tests show
soil is contaminated, provide test results to [Warner Robins] and
transport soil to DRMO for final disposal.*  RFP, Drawing Plate C-103,
Note 5, added by addendum No. 1
P: 1(f) (May 23, 2002) at 1-2; and addendum No. 2 P: III(b), June 27,
2002, at 3. 
The Air Force found A-1's proposal unacceptable in this area because its
FPR indicated that the disposition of affected soil would be determined by
the agency's project manager after the analytical sampling results were
forwarded to the project manager to determine whether the soils will be
disposed of as contaminated soil.  AR, exh. 6(f), Protester's FPR, at 1. 
As the agency explains, under the terms of the amended solicitation quoted
above, the successful offeror was responsible for the decision to dispose
of the soil by transporting the soil to DRMO based upon the sampling
results without further direction from the agency.  Contracting Officer's
Statement at 5.  A-1 asserts that it reasonably believed that the agency
itself would make the final decision, based on the sample soil testing
which would determine whether the soil was contaminated.  Protester's
Comments at 5-7.  According to the protester, the solicitation provisions
are confusing and conflicting and provide no specific direction to the
offeror in preparing its proposed unforeseen contaminated soil removal
plan.  Id.
    
We think the RFP language quoted above makes it reasonably clear that it
is the successful offeror, not the agency, who was responsible for the
decision to transport the soil for disposal based on the test results. 
There was nothing in the specifications that even suggested that Warner
Robins needed to approve of the successful offeror's decision to transport
contaminated soil for final disposal.  Since the protester's approach was
not consistent with the RFP requirement, the agency reasonably found the
protester's FPR unacceptable in this area.  Even if the protester were
correct that the quoted solicitation provisions are ambiguous or unclear,
we think any ambiguity in this regard was apparent from the face of the
solicitation. 
An offeror may not simply make unilateral assumptions regarding the
meaning of patently ambiguous solicitation terms and then expect relief
when the agency does not act in the manner the offeror assumed; rather,
offerors must challenge apparent ambiguities prior to the time set for
receipt of initial proposals.  4 C.F.R.S: 21.2(a)(1); American Connecting
Source d/b/a/ Connections, B-276889, July 1, 1997, 97-2 CPD
P: 1 at 3. 
    
Finally, as the agency notes, the protester proposed to containerize the
soil in lined 20 cubic yard roll-offs, while the RFP called for 25 cubic
yard roll-offs.  Overall, the record shows that despite repeated requests
to address the RFP requirements concerning unforeseen soil contamination
during the drilling process, the protester failed to provide information
that adequately addressed these requirements.  Accordingly, the agency
reasonably found A-1's proposal unacceptable.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel