TITLE: B-299229.4, MELE Associates, Inc., July 25, 2007
BNUMBER: B-299229.4
DATE: July 25, 2007
************************************************
B-299229.4, MELE Associates, Inc., July 25, 2007

   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: MELE Associates, Inc.

   File: B-299229.4

   Date: July 25, 2007

   Pamela J. Mazza, Esq., Jonathan T. Williams, Esq., and Isaias Alba IV,
   Esq.,

   PilieroMazza, for the protester.

   Kenneth B. Weckstein, Esq., and Michael D. Maloney, Esq., Epstein Becker &
   Green, PC, for Professional Project Services, Inc., an intervenor.

   H. Jack Shearer, Esq., Young H. Cho, Esq., and Ida Hernandez Sedillo,
   Esq., Department of Energy, for the agency.

   Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that agency unreasonably evaluated proposal under technical
   approach factor is denied where, although proposal offered to comply with
   solicitation requirements, it did not explain how protester would do so,
   and agency otherwise reasonably determined that proposal evidenced lack of
   understanding of requirements.

   2. Protest that agency unreasonably evaluated proposal under corporate
   experience factor is denied where agency reasonably determined that
   proposal did not demonstrate that protester had experience performing
   solicitation tasks.

   DECISION

   MELE Associates, Inc. protests the rejection of its proposal in response
   to request for proposals (RFP) No. DE-PR52-05NA26986, issued by the
   Department of Energy (DOE) for services to enhance and accelerate programs
   for the location, removal, and protection of nuclear and radiological
   materials stored at foreign or domestic facilities and at risk for theft
   or misuse. MELE argues that DOE improperly evaluated its proposal under
   the technical and corporate experience factors.

   We deny the protest.

   The RFP anticipated the award of multiple contracts under which firms
   would be able to compete for future task orders--which may be fixed-price,
   cost-plus-fixed-fee, or cost-plus-incentive-fee in nature--in four areas
   listed in the performance work statement (PWS). The RFP provided for award
   on a "best value" basis considering technical approach to two sample task
   orders, corporate experience, past performance, and cost; the non-cost
   factors combined were significantly more important than cost. RFP sect. M,
   at 1. Seven proposals were received and were evaluated by a source
   selection evaluation board (SSEB). The SSEB assigned proposals an
   adjectival rating (excellent, good, satisfactory, marginal, or
   unsatisfactory) under each non-cost factor based on the proposals'
   evaluated strengths and weaknesses. Agency Report (AR) at 5-6. MELE's
   proposal was rated unsatisfactory for technical approach, marginal for
   experience, and excellent for past performance, and offered the lowest
   cost. AR at 7. DOE ultimately made three awards. MELE was not awarded a
   contract.

   MELE maintains that DOE improperly evaluated its proposal under the
   technical approach and corporate experience factors. In reviewing a
   protest against an agency's proposal evaluation, our role is limited to
   ensuring that the evaluation was reasonable and consistent with the terms
   of the solicitation and applicable statutes and regulations. Phillips Med.
   Sys. Of N. Am., B-293945.2, June 17, 2004, 2004 CPD para. 129 at 2. We
   have reviewed the record and find that MELE's arguments are without merit.
   We discuss several of those arguments below.

   TECHNICAL APPROACH TO SAMPLE TASK ORDER 1

   Disposal

   Under Sample Task Order 1 (STO1), offerors were instructed to develop a
   plan to prepare, transport, and dispose of devices containing cesium-137
   and cobalt-60 sources found in California, Washington State, and New
   Jersey. STO1 at 2. The devices were to be disposed of as radioactive waste
   at the Nevada Test Site (NTS) disposal facility. Id. The plan was to
   provide for completing recovery and shipping of the New Jersey and
   Washington devices within 180 days, and of the California device within 30
   days, after "award" of the task order. Id.

   DOE assigned MELE's proposal a significant weakness under the technical
   approach factor on the basis that MELE's plan did not demonstrate that the
   waste from the three sites would be disposed of at NTS as required by
   ST01.[1] Specifically, the agency's concern was that MELE did not provide
   a definite time frame for disposal at NTS, leading it to conclude that
   MELE had not fully addressed the performance objective of the PWS.[2] AR
   at 9; Supplemental Agency Report (SAR) at 1. In this regard, MELE's plan
   did not propose transporting the waste from the three sites directly to
   NTS for disposal but, rather, proposed to recover the waste and hold it in
   interim storage for consolidation with waste recovered from other sites
   and at other times. When a sufficient amount of waste was accumulated,
   MELE then would transport the waste to NTS for disposal. AR at 9-10. The
   agency's concern arose because the PWS specifically excludes long-term
   storage from the definition of disposition, PWS at 5, and MELE's plan
   failed to indicate from where the other waste might be coming, how long
   the waste would be held in interim storage, and when the waste ultimately
   would be shipped to NTS for disposal. Agency Response to Question, June
   29, 2007 (ARQ, June 29) at 3, 4, 5.

   MELE asserts that its plan did in fact include a definite time frame for
   disposition of the waste at NTS, noting that its proposal indicated that
   disposal of the Washington and New Jersey waste would be completed within
   180 days of the task order award, as required, and that disposal of the
   California waste would be completed within 30 days of award, as required.
   We think the agency reasonably determined otherwise. As DOE notes, the
   information MELE cites was part of the proposal heading for each of the
   three locations--rather than substantive information--which merely
   repeated the requirements of STO1. Similarly, while MELE's plan included
   timelines for each of the locations showing disposal by a specific date
   following the start date, the agency found that these timelines were
   extremely vague; for example, they did not indicate when the devices would
   be placed in interim storage and when they would be removed from interim
   storage. MELE Proposal, Vol. II, sect. B 9, at 11, 15. Further, as
   discussed above, MELE's proposal narrative did not provide any information
   discussing how and when it planned to dispose of the devices at NTS within
   the stated 180 days. Thus, we think the agency reasonably could read the
   proposal headings and timelines as no more than blanket statements of
   compliance with the solicitation requirements, and as not providing
   information as part of its required plan from which it could conclude that
   MELE would dispose of the waste at NTS within the framework of STO1. See
   National Shower Express, Inc., Rickaby Fire Support, B-293970, B-293970.2,
   July 15, 2004, 2004 CPD para. 140 at 6; Trimble Navigation Ltd., B-258672,
   Jan. 30, 1995, 95-1 CPD para. 138 at 8.

   NTS Waste Acceptance Criteria

   In responding to STO1, offerors were required to comply with the
   requirements for radioactive waste disposal contained in the NTS Waste
   Acceptance Criteria (WAC). STO1 at 2. Offerors' sample plans were to
   include a description of how the work would be accomplished, including
   which regulatory requirements applied and how the offeror planned to meet
   them. STO1 at 3.

   The SSEB assigned MELE's proposal a significant weakness for failure to
   demonstrate an understanding of the WAC. DOE's concern arose from the fact
   that MELE's proposal included an agreement to comply with all applicable
   regulations, but did not indicate what those regulations were, or discuss
   how MELE would ensure compliance with them.[3] DOE therefore questioned
   whether MELE was aware of which regulations it was mandated to follow and
   the purpose of those regulations. AR at 14. MELE maintains that its
   proposal did in fact both identify the regulations applicable to the
   recovery and disposal of the waste, and discuss how it would comply with
   them. MELE points to portions of its proposal that discuss requirements
   that appear to be based on some regulation. The proposal states, for
   example that, "[b]ased on the calculated activity level of the shipboard
   irradiator... shipment in a Type B package is required." MELE Proposal,
   Vol. II, sect. B at 4. However, as the agency found, the cited areas of
   the proposal do not identify the referenced regulation, describe what the
   regulation requires, or explain how MELE was proposing to comply with the
   regulation. The agency further points out that, as part of their plan,
   offerors were required to analyze the source materials that were to be
   disposed of in order to determine whether they contained other hazardous
   materials, such as lead. AR at 14-15. The agency found that, while MELE's
   proposal recognized this requirement, it did not identify or discuss the
   steps in the process, that is, sampling and analysis, which must be
   performed by an NTS-certified laboratory. AR at 12. In light of the
   shortcomings identified by the agency, we conclude that there is no basis
   to question this aspect of the evaluation.

   Interim Storage and Security at Domestic Facilities

   The agency assigned two weaknesses to MELE's proposal concerning whether
   MELE understood the NTS acceptance criteria and the parameters of the RFP.
   First, in discussing waste disposal at NTS, MELE stated that, if it became
   necessary before it had approval to dispose of waste at NTS, it would
   negotiate with NTS to hold the waste in interim storage. AR at 18-19. The
   agency concluded that MELE did not understand the process at NTS because
   NTS only accepts waste for immediate disposal when the waste has an
   approved profile, and does not permit interim storage at its facility.
   MELE acknowledges that its proposal in this regard was incorrect, but
   asserts that this should not have been rated a proposal weakness because
   this was only an alternative strategy in case its other source of interim
   storage failed. However, whether termed a mistake or a secondary strategy,
   we think the agency reasonably could find that MELE's failure to recognize
   that NTS does not permit interim storage indicated that MELE did not fully
   understand the NTS procedures, and that this represented a weakness in the
   proposal.[4]

   The agency also assessed a weakness against MELE's proposal because MELE
   proposed to perform a facility security assessment as part of each
   domestic radioactive sealed source recovery project. DOE concluded that
   MELE did not understand the parameters of the RFP, which requires security
   assessments only for foreign facilities. AR at 15. The agency also was
   concerned that performing such an assessment would result in added cost
   and schedule delays. MELE asserts that it was unreasonable for DOE to
   assess a weakness based on its proposal to perform additional security
   assessments, noting that, even with its proposed additional security, its
   cost was significantly lower than the other offerors' costs. MELE's
   argument is without merit. We think it is reasonable for an agency to
   downgrade a proposal where it offers something that is not required,
   without indicating that the offeror understands the precise requirements.
   Since the solicitation here required a security assessment only for
   foreign facilities, DOE reasonably determined that MELE's offer to perform
   assessments at domestic facilities indicated a possible lack of
   understanding of the actual requirements. The fact that MELE's proposed
   cost was low even with the cost of these additional assessments did not
   preclude the agency from downgrading the proposal for lack of
   understanding.

   CORPORATE EXPERIENCE

   The RFP instructed offerors to describe their experience (as well as the
   experience of team members) related to the four task areas of the PWS,
   explain the relevance of the experience, and describe the depth of their
   role in the management and execution of the contract cited for the
   experience. RFP, sect. L, at 6. MELE was rated marginal for corporate
   experience based on the SSEB's conclusion that its proposal did not
   demonstrate that MELE or its team members had more than minimal experience
   in the PWS task areas.

   Task Area 4.1.1

   The PWS informed offerors that the scope of the contract was to enhance
   and accelerate programs to locate, remove and protect nuclear and
   radiological materials at domestic and foreign facilities and locations.
   Task area 4.1.1 of the RFP provided that, "[t]he contractor shall conduct
   vulnerability assessments and make recommendations for security upgrades
   to address any identified vulnerabilities. These assessments may include
   analysis of the following areas: location, facility condition, facility
   security attributes, security response force, and nuclear and/or
   radiological material characteristics."

   In its proposal, to demonstrate experience under task area 4.1.1, MELE
   listed a contract it performed at the airport in Vilnius, Lithuania, where
   it conducted a vulnerability assessment, recommended security
   enhancements, and designed, developed, installed, and tested an integrated
   nuclear and radiological detection system. DOE found that the Vilnius
   contract did not demonstrate relevant experience within the scope of task
   area 4.1.1. The agency explains, in this regard, that, while the purpose
   of the Vilnius contract is to prevent illicit trafficking in radiological
   and nuclear materials by installing radiation and detection monitors to
   scan cargo containers and other traffic, AR at 33, the current RFP is
   directed at preventing terrorists from acquiring nuclear and radiological
   materials at risk for theft or misuse at foreign and domestic storage
   facilities. This will entail visiting radioactive storage facilities,
   conducting vulnerability assessments, and providing recommendations as to
   how to best secure sites against unauthorized access and removal of
   material.

   MELE asserts that the solicitation did not limit relevant experience to
   experience conducting vulnerability assessments of radioactive storage
   facilities. MELE also notes that the PWS indicated that vulnerability
   assessments could include an analysis of the location, facility condition,
   facility security attributes, and security response force; MELE maintains
   that the Vilnius contract represents valid experience because it entailed
   a detailed analysis of the airport's location, physical condition and
   current security, as well as the adequacy of the current response force.

   The evaluation in this area was reasonable. First, while MELE is correct
   that the solicitation did not limit experience to vulnerability
   assessments of storage facilities, it is always reasonable for an agency
   to consider whether an offeror has specific experience directly relevant
   to the work to be performed under the solicitation. High Country
   Contracting, B-278649, Jan. 30, 1998, 98-1 CPD para. 39 at 3-4. This is
   what the agency did here, and we find nothing unreasonable in its making a
   distinction between the work under the solicitation and MELE's performance
   on the Vilnius contract, which did not involve a vulnerability assessment
   of a storage facility containing radioactive or nuclear materials. While
   MELE would have the agency treat vulnerability assessments for a storage
   facility and an airport as identical, we think DOE reasonably could view
   the work as materially different given the different purposes of the
   assessments and the different recommendations that will result from those
   assessments. Moreover, to the extent that there are similarities in the
   two assessments, contrary to the RFP instructions, RFP sect. L, at 6,
   MELE's proposal did not describe how the work it performed at the airport
   was similar to the work to be performed under PWS 4.1.1. For example, in
   its protest, MELE states that the Vilnius contract involved performance of
   a detailed analysis of the airport's location; however, MELE's proposal
   did not describe what this analysis involved or explain how it was
   relevant to analyzing the location of a storage facility.

   Task Area 4.1.2

   Under task area 4.1.2, the contractor will be required to prepare a plan
   for the removal of nuclear and/or radiological materials, which may
   include consideration of the radiological and chemical characteristics of
   the material, as well as the handling, processing, and packaging necessary
   to support removal, transportation, and logistics of the material. PWS at
   4. In identifying relevant experience in this area, MELE's proposal stated
   that the firm "currently supports the Office of Global Threat Reduction,
   in preparing plans for the removal, storage and final disposition of
   nuclear and radiological materials." MELE Proposal, Vol. II, sect. C, at
   5. DOE found that it could not determine from this statement that this
   contract demonstrated experience under task area 4.1.2, since the proposal
   did not include an explanation of why this contract effort was relevant to
   the current requirement, or describe MELE's role in performing the
   contract. AR at 34. MELE argues that additional information was
   unnecessary because its proposal statement indicated that performance
   entailed the exact tasks listed in the PWS.

   MELE's position is without merit. As noted above, the RFP instructed
   offerors to describe and explain the relevance of their experience, and to
   describe the depth of their role in the management and execution of the
   contract cited for the experience. RFP sect. L, at 6. MELE's mere
   parroting of the general tasks encompassed by the PWS did not provide the
   agency with the requested detailed information. In the absence of this
   detailed information, we think DOE reasonably could conclude that MELE's
   proposal did not demonstrate experience relevant to PWS 4.1.2. See A.G.
   Crook Co., B-255260, Feb. 16, 1994, 94-1 CPD para. 118 at 5 n.5.

   Task Area 4.2.1

   Under task area 4.2.1, the contractor will be required to install physical
   security upgrades at locations with at-risk nuclear and/or radiological
   materials, which may include installation of security equipment and
   facility modification or construction. PWS at 4. In its proposal, MELE
   again listed the Vilnius airport contract to demonstrate its experience,
   stating that, "[a]s a prime contractor, MELE managed a domestic and
   international team in designing and installing physical security upgrades
   at the main airport in Vilnius. ..." DOE found that this experience was
   not relevant because it entailed installation of a radiation detection
   system in different areas of the airport to enable officials to determine
   whether illicit materials were passing through the airport. The contract
   did not involve installation of a physical security system aimed at
   preventing unauthorized access to a facility that contains radiological
   and nuclear materials. AR at 35. MELE disagrees, arguing that the required
   surveillance systems are the same.

   The evaluation in this area was reasonable. The PWS defines a physical
   security system as "a compilation of protective forces, alarm systems and
   barriers managed together to preclude or inhibit unauthorized access to a
   facility or location." PWS at 5. MELE's airport contract did not involve
   installation of a physical security system that fit within this
   definition; rather, again, it involved installation of a detection system.
   Given this difference, DOE reasonably concluded that MELE's experience did
   not encompass the work contemplated under task order 4.2.1.

   Task Area 4.2.2

   PWS task area 4.2.2 requires the contractor to develop curriculum and
   conduct training, which may include modules on physical security or the
   location, handling, and management of orphan sources of radioactive
   material.[5] PWS at 4. In identifying its relevant experience in this
   area, MELE indicated in its proposal that, the Vilnius airport contract
   included the training of airport and border guards on the proper operation
   and maintenance of the newly installed detection system, development of
   training modules related to portal operation and identification of
   radiological and nuclear materials with the alarm system, and development
   of final draft standard operating procedures for airport personnel in
   management of the installed system. DOE found that this experience was not
   relevant under task area 4.2.2. Again, MELE disagrees. However, as the
   agency points out, hand held radiation detection equipment would be used
   to detect orphan material under this task area, and training on such
   equipment includes the proper manner for holding and moving the equipment.
   In contrast, MELE's Vilnius airport experience involved training personnel
   on how to use a stationary detection system to identify radiological
   materials and how to manage the system. SAR at 12. This difference is
   sufficient, we think, to support the agency's conclusion that MELE's
   listed experience was not relevant to task area 4.2.2. MELE asserts in its
   protest that it trained personnel in how to manage and handle nuclear and
   radiological materials and in the use of handheld detection equipment.
   However, this information was not included in MELE's proposal.

   In sum, we have no basis to object to the evaluation. Accordingly, the
   protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] This weakness was also based on MELE's failure to identify how it
   would develop a waste profile for the New Jersey irradiator, without which
   the waste could not be disposed of at NTS. In its protest, MELE argued
   that it did not need to explain how it would obtain the profile because it
   had been approved to dispose of waste at NTS. In its report DOE disagreed,
   and in the comments MELE submitted in response to the agency report, MELE
   no longer challenged DOE's evaluation on this basis. Accordingly, we
   consider this basis of protest abandoned. See Symplicity Corp., B-297060,
   Nov. 8, 2005, 2005 CPD para. 203 at 5 n.6.

   [2] Throughout its protest submissions, MELE characterizes DOE's initial
   concerns with its proposal as based on MELE's failure to propose disposing
   of the recovered waste at NTS, and instead only proposing to hold it in
   interim storage and consolidate it with other recovered waste. This is not
   the case. In identifying the significant weakness in MELE's proposal, the
   SSEB noted that MELE proposed disposal at NTS, and then expressed concern
   that, due to the proposed interim storage and consolidation, the disposal
   did not satisfy STO1. AR at 9.

   [3] The agency also was concerned because MELE's proposal stated that the
   WAC did not address all regulatory requirements regarding the handling and
   disposal of waste--such as those promulgated by the Occupational Safety
   and Health Administration, the Department of Transportation, and the
   Nuclear Regulatory Agency--MELE Proposal, Vol. II, sect. B at 8-9--when,
   in fact, the WAC requires compliance with all applicable regulations.

   [4] MELE states that it learned on June 25 that NTS does in fact permit
   interim storage if the material to be stored is classified as source
   material rather than waste. This information presumably was available at
   the time MELE filed its original protest on April 30. Thus, this argument
   should have been raised in the original protest; because it was not, it is
   untimely. Our Regulations do not contemplate the piecemeal development of
   protest issues. See Braswell Servs. Group, Inc., B-276694, July 15, 1997,
   97-2 CPD para. 18 at 6-7. In any case, even if MELE's information is
   correct, MELE's proposal did not discuss the difference between source
   material in the context of interim storage at NTS; in fact, in discussing
   interim storage, the proposal refers to the material as waste. Thus, DOE
   would have no reason to read the proposal as proposing interim storage for
   other than waste material, which, MELE acknowledges, is not permitted.

   [5] Orphaned material is radioactive material outside of regulatory
   control and unaccounted for. Orphaned material is not associated with any
   license, or authorization to possess or use. PWS at 5.