TITLE:  Restoration and Closure Services, LLC, B-295663.6; B-295663.12, April 18, 2005
BNUMBER:  B-295663.6; B-295663.12
DATE:  April 18, 2005
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   Decision

   Matter of: Restoration and Closure Services, LLC

   File: B-295663.6; B-295663.12

   Date: April 18, 2005

   William B. Snyder, Esq., and Robert P. Murrian, Esq., Kramer, Rayson,
Leake, Rodgers & Morgan, LLP, for the protester.

   Andrew P. Hallowell, Esq., Pamela J. Mazza, Esq., and Jennifer M.
Morrison, Esq., Piliero, Mazza & Pargament, PLLC, for LATA/Parallax
Portsmouth, the intervenor.

   Gena E. Cadieux, Esq., Renee S. Holland, Esq., Joseph A. Lenhard, Esq.,
and Beth A. Kelly, Esq., Department of Energy, for the agency.

   John L. Formica, Esq., Charles W. Morrow, Esq., Guy R. Pietrovito, Esq.,
and James A. Spangenberg, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.

   DIGEST

   1.  Consultants' applications for admission to protective order are denied
where the applications agreed to restrict the consultants' activities only
with regard to the particular site for the procurement being protested,
and thus permitted the consultants to engage or assist in the preparation
of proposals for the same type of work at other sites where a party to the
protest may be a competitor.

   2.  Protest challenging the agency's evaluation of the protester's
proposal on the basis that, although the solicitation did not prescribe or
suggest a particular technical approach, the agency was predisposed
towards a particular technical solution, is dismissed where there is no
reasonable possibility that the protester was prejudiced by the alleged
unreasonable evaluation because, even if the protester's proposal had
received the maximum points under the contested areas of evaluation, its
proposal would have remained lower rated and significantly higher in cost
than the proposal selected for award.

   DECISION

   Restoration and Closure Services, LLC (RCS) protests the evaluation of its
proposal and award of a contract to any other firm, under request for
proposals (RFP) No. DE-RP24-040H20179, issued by the Department of Energy
(DOE), for environmental remediation services at DOE's Portsmouth, Ohio
site. [1]

   We dismiss the protest.

   BACKGROUND

   The Portsmouth Gaseous Diffusion Plant is part of the Portsmouth site, and
was operated by DOE and its predecessor agencies as "a uranium enrichment
plant . . . to supply both high- and low-enriched uranium for defense
purposes and commercial nuclear fuel sales."  The operation of the
Portsmouth plant "resulted in the generation of significant quantities of
radioactive, hazardous, and mixed waste," with the activities at the plant
causing the "contamination of equipment, facilities, soil, and ground
water with radioactive and hazardous constituents."  RFP S C.2.0.

   The contractor will be required to provide all personnel, facilities,
equipment, materials and supplies (with the exception of that set forth in
the contract to be furnished by DOE) to accomplish the remediation
services "in a safe, integrated, effective and efficient manner."  RFP S
C.2.0.3.  The RFP specified that the contractor would have "responsibility
for total performance under this contract, including determining the
specific methods for accomplishing the work within the requirements of the
contract."  RFP S C.2.0.1.  The solicitation also informed offerors that
the contractor would be "required to comply with all applicable Federal
and State laws and regulations, DOE Directives, permits, agreements and
Orders with regulators (both State and Federal)."  Id.

   The RFP provided for the award of a cost-plus-incentive-fee contract for
the Portsmouth site to the offeror submitting the proposal representing
the best value to the agency based upon the RFP's technical evaluation
criteria and evaluated cost, with the technical evaluation criteria being
significantly more important than evaluated cost.  In this regard, the
solicitation listed the following technical evaluation criteria in
descending order of importance:  technical approach, integration and
schedule; key personnel; experience; project and risk management; and past
performance. 

   The solicitation included detailed instructions for the preparation of
proposals.  With regard to technical proposals, the solicitation, while
stating that "[t]he offeror shall describe its technical approach to
address all SOW [statement of work] activities," specifically identified
four aspects of the SOW, and informed offerors that for these aspects they
were to "address in more detail its work processes, methods, and
innovations."  RFP S L.17.I.  The solicitation also provided that the
agency "intends to evaluate proposals and award a contract without
discussions with offerors," and that because of this, "the offeror's
initial proposal should contain the offeror's best terms from a cost or
price and technical standpoint."  RFP S L.5(f).

   The agency received six proposals by the RFP's closing date.  The
proposals were evaluated, with LATA/Parallax's proposal receiving 860 out
of 1,000 points under the technical evaluation criteria (the highest score
of any proposal received), at an evaluated cost of $150.7 million (the
lowest evaluated cost).  In contrast, RCS's proposal received 530 points
(the second lowest score of the proposals received) at an evaluated cost
of $197.7 million (the second most expensive evaluated cost).  Agency
Report (AR), Tab 6, Source Evaluation Board Final Report, at 2.  The
source selection official determined that the proposal submitted by
LATA/Parallax represented the best value to the government, and award was
made to that firm.  After requesting and receiving a debriefing, RCS filed
this protest.

   DENIAL OF CONSULTANTS' PROTECTIVE ORDER APPLICATIONS

   On February 9, 2005, we issued a protective order in connection with this
protest.  On March 9, 2005, counsel for RCS submitted the applications of
two consultants for admission to the protective order to assist him with
the representation of RCS in this protest.

   DOE and LATA/Parallax objected to the admission of the consultants.  Among
other things, the agency and intervenor complained that the consultants
had only agreed that they would not participate or assist in the
preparation of a proposal for environmental remediation at DOE's
Portsmouth site for a period of 2 years.[2]  The agency and intervenor
argued that because there are a number of remediation solicitations
ongoing and upcoming, the consultants' proposed restriction on their
activities was too limited in that it would allow the consultants to
participate or assist in the preparation of proposals for environmental
remediation services at other sites where a party to this protest is a
competitor.

   RCS responded that the restrictions suggested by DOE and the intervenor
(although consistent with the standard terms of our protective order) were
too restrictive, and argued that "[t]hese restrictions would freeze out
the consultants for two years from any DOE work and presumably, from any
government work.  No one could get a technical consultant under those
circumstances."  Protester's Letter Regarding Protective Order
Applications, Mar. 14, 2005, at 1.

   In considering the propriety of granting or denying an applicant admission
to a protective order, we review each application in order to determine
whether the applicant is involved in competitive decision-making and
whether there is otherwise an unacceptable risk of inadvertent disclosure
of protected information should the applicant be granted access to
protected material.  See McDonnell Douglas Corp., B-295694.2, B-295694.3,
June 16, 1995, 95-2 CPD P 51 at 7-8 (denial of admission of in-house
counsel), citing U.S. Steel Corp. v. United States, 730 F.2d 1465
(Fed.Cir. 1984).  With respect to the applications of consultants to a
protective order, we consider and balance a variety of factors, including
our Office's desire for assistance in resolving the specific issues of the
protest, the protester's need for consultants to pursue its protest
adequately, the nature and sensitivity of the material sought to be
protected, and whether there is opposition to an applicant expressing
legitimate concerns that the admission of the applicant would pose an
unacceptable risk of inadvertent disclosure.  See EER Sys. Corp., B-256383
et al., June 7, 1994, 94-1A CPD P 354 at 9.

   The applications of the consultants here disclosed that the consultants
are well-qualified in their respective fields, with one consultant being
qualified in the analysis of groundwater systems, and the other consultant
being qualified in the investigation of the origin, fate and transport of
organic and inorganic chemicals in natural and man-made environments.  The
applications also disclosed that the consultants performed consulting
services for a variety of industry and government groups.  However, the
consultants agreed in their respective applications only that they would
not engage or assist in the preparation of a proposal to be submitted to
any agency of the United States for the "Portsmouth Gaseous Diffusion
Plant where I know or have reason to know that any party to the protester,
or any successor entity, will be a competitor, subcontractor, or teaming
member" for 2 years from the date of the application.

   By failing to agree to not engage or assist in the preparation of a
proposal to be submitted to any agency of the United States government for
environmental remediation services for a period of 2 years, the
consultants left open the possibility that they would engage or assist in
the preparation of proposals for this work where a party to the protest
will be a competitor.  In fact, by its arguments, RCS recognized that the
consultants may well perform proposal preparation assistance for this very
type of work, even where a party to the protest may be a competitor,
subcontractor or teaming member.  Although we have no reason to question
the consultants' promises not to disclose protected material if the
consultants were to subsequently provide services in support of proposal
preparation for environmental remediation work for an agency of the United
States government, this would require the consultants to continually
compartmentalize information to protect information obtained under our
protective order.  We found that this created more than a minimal risk of
inadvertent disclosure, and therefore in the absence of any agreement
between the parties, we denied the consultants' applications for admission
to the protective order.  See McDonnell Douglas Corp., supra, at 8.

   PROTEST CONTENTIONS AND AGENCY RESPONSES

   The protester argues that the agency's evaluation of its proposal was
unreasonable.  Specifically, the protester points out that during the
pendency of this procurement, the incumbent contractor issued a
solicitation for a subcontract that, in contrast to the DOE RFP here,
prescribed a certain technical approach (termed "pump and treat") to
accomplish certain of the remediation work required by this RFP.  The
protester argues that although the RFP here did not prescribe a specific
technical approach to accomplishing the remediation services, DOE was
"predisposed" in favor of the "pump and treat" approach prescribed in the
incumbent's solicitation, and that because of this, the protester's
proposed "innovative 'push technology' process did not get a full and fair
evaluation."  Protester's Comments at 6-7.  The protester asserts that if
it had known that DOE was predisposed towards a "pump and treat" approach,
as evidenced, in the protester's view, by the incumbent contractor's
solicitation, it "would have submitted a different technical approach that
would have complied" with what the protester argues was "the specified
design."  RCS concludes that DOE should thus cancel the award and allow
offerors to submit a technical approach that complies with the "specified
design."[3]  Protester's Comments at 7. 

   The agency responds that, contrary to the protester's assertions, it was
not predisposed towards any specific technical approach to accomplishing
the work required, and that its evaluation of the protester's proposed
approach was reasonably based.  The agency adds that because much of the
protest is based upon the protester's view that the incumbent contractor's
solicitation is inconsistent with DOE's RFP, and the protester was aware
of the incumbent contractor's solicitation well before filing this
protest, the protest here is untimely.  DOE also argues that RCS was not
prejudiced in any case, even assuming that RCS's proposal was misevaluated
under the evaluation criteria implicated by RCS's protest, because of its
significantly lower technical score and higher evaluated cost and because
it has not challenged any aspect of the evaluation of LATA/Parallax's
proposal.  AR at 15.

   LACK OF PREJUDICE

   Competitive prejudice is necessary before we will sustain a protest; where
the record does not demonstrate that the protester would have had a
reasonable chance of receiving award but for the agency's actions, we will
not sustain a protest, even if deficiencies, such as an unreasonable or
unequal evaluation of proposals, are found.  CAE USA, Inc., B-293002,
B-293002.2, Jan. 12, 2004, 2004 CPD P 25 at 16.

   Here, we agree with DOE that the record establishes that even if RCS were
correct in its assertions, there was no possible prejudice to the
protester.  We first note that RCS has not protested the evaluation of
LATA/Parallax's proposal or the evaluation of its own proposal under the
key personnel evaluation criterion, and has abandoned its protest
concerning the evaluation under the experience and past performance
evaluation criteria.  With regard to the remainder of RCS's protest, the
record reflects that the agency downgraded the protester's proposal under
the technical approach, integration and schedule, and project and risk
management criteria because of the agency's determination that the
protester's proposed approach posed certain risks.  However, even if RCS
had received the maximum score under each of these criteria, its overall
score would have increased to only 835 points, which is still lower then
the awardee's proposal's technical score of 860 points.[4]  Given this,
the fact that the protester's evaluated cost was $47 million higher than
the awardee's, and that the protester has made no claim that it would have
been able to reduce its proposed costs, we fail to see how the protester
was prejudiced by the alleged errors in the agency's evaluation, or how
the protester would have a reasonable possibility for award if the
solicitation had been amended and the protester given an opportunity to
submit a proposal with a different technical approach "that would have
complied" with what the protester argues was "the specified design."  See
EBA Ernest Bland Assoc., B-270496, Mar. 13, 1996, 96-1 CPD P 148 at 6.

   The protest is dismissed.

   Anthony H. Gamboa

   General Counsel

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

   [1] The RFP provided for the award of two contracts--one for the
remediation services at the Portsmouth site and one for the remediation
services at a site in Paducah, Kentucky.  This protest concerns the award
of the contract for the Portsmouth site only.

   [2] Our standard application for consultants contemplates that a
consultant agree to not engage or assist in the preparation of proposals
for a period of 2 years, not only at the particular site that is the
subject of the procurement under protest, but for the general subject
matter involved in the protested procurement (in this circumstance
environmental remediation services) where the consultant knows or has
reason to know that a party to the protest will be a competitor,
subcontractor, or teaming member.

   [3] RCS initially protested that the agency's evaluation of its proposal
under the "experience" and "past performance" criteria was unreasonable. 
The agency report responded in detail to these arguments, and the
protester did not respond to the agency's position in either its comments
or supplemental comments.  Accordingly, we consider RCS to have abandoned
these aspects of its protest and will not consider them further.  See
Uniband, Inc., B-289305, Feb. 8, 2002, 2002 CPD P 51 at 5 n.3.

   [4] Specifically, the record reflects that proposals were scored on a 0-10
point scale under each of the technical evaluation criteria, and that a
"weighting" factor was then applied to the scores received consistent with
the criteria's order of importance.  In this regard, weighting factors of
45 and 10 were applied to the proposals' scores under the technical
approach, integration and schedule and project and risk management
criteria, respectively.  AR, Tab 6, SSEB Final Report, at 11.  RCS's
proposal had received scores of 5 out of 10 points and 2 out of 10 points
under these criteria, with total weighted point scores of 225 and 20
points for the technical approach, integration and schedule and project
and risk management criteria.  Id. at 3.  Even assuming that RCS's scores
under these two criteria were increased to 10 points (the maximum
available), its total weighted scores would increase to 450 and 100 points
under these criteria, for a total increase in score of 305 points.  Given
that RCS's proposal had received a total weighted score of 530 points, its
total weighted score (assuming perfect scores under these two factors)
would increase to only 835 points.