• LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411

Bid Protest Weekly
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us

Savannah River Tank Closure, LLC, B-400953; B-400953.2; B-400953.3, March 30, 2009

  • By GCPC GovCon Legal Team
  • March 30, 2009
  • Cost-Technical Trade-Off

Link: GAO Opinion

Agency: Department of Energy

Disposition: Protest denied.

_________________________________________________________________________________________________________________

GAO Decision:

In a procurement for liquid waste remediation, agency reasonably selected technically superior but higher priced proposal for award, where awardee’s technical approach for tank cleaning was significantly superior to the protester’s less feasible approach, the awardee’s proposal exceeded the requirements of the solicitation to a much larger degree than did the protester’s in several technical areas, and the awardee demonstrated proposal superiority under nearly all of the evaluation factors.

General Counsel P.C. Highlight:

STC contends that the agency’s evaluation of proposals under the non-price evaluation factors was unreasonable and unequal. GAO states the office reviews challenges to an agency’s evaluation of proposals only to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment is not sufficient to establish that an agency acted unreasonably.

STC asserts that its proposal was undeserving of a significant weakness for offering to use the mini mantis as its primary tank cleaning approach. A review of the record, including the video clips, confirms the reasonableness of the agency’s conclusions. While the mantis technology has been successfully used on tanks without obstructions, the agency found that it had never been successfully used on tanks with obstructions, as is proposed here. The testing performed by STC’s subcontractor, the agency found, did not adequately simulate Type I and II tank conditions or demonstrate the feasibility of the mini mantis as a cleaning approach for these tanks. As depicted in STC’s proposal, the testing occurred in an open vessel that contained far fewer, less condensed, and less intertwined coils and obstructions than exist in Type I and II tanks. Also, during testing, the mini mantis was operated from above the vessel with adequate day light and visibility, and it was not remotely operated in a closed tank with cameras and lighting as the only visual guide as would occur with actual operations. Even under the less restrictive testing conditions, the video clips show the mini mantis having difficulty maneuvering over and around obstructions, which “reinforc[ed],” “validated”, and “heightened” the agency’s concerns. Based on this record, GAO finds the agency’s concerns about the mini mantis’ feasibility to be reasonable.

STC complains that the agency unfairly assessed its proposal a significant weakness for the impact of melter assumptions on canister production. As discussed above, SRR’s proposal included a number of innovations and enhancements that increased canister production to a far greater degree and earlier in contract performance than STC’s proposal. In fact, SRR proposed to produce 50 percent more canisters than STC. As reasonably determined by the agency, SRR’s production capability exceeded “end state” requirements to such a significant extent that there was little risk that SRR would fail to meet “end state” requirements, even if faced with unplanned DWPF outages or early melter failure. In contrast, STC’s projected canister production only slightly exceeded the “end state” requirements when STC’s melter assumptions are taken into account; thus, unplanned DWPF outages of just 4 days would result in STC not meeting the “end state” requirement to produce 1,100 canisters during the base period of the contract. Given the differences in proposed canister production, GAO finds the agency’s determination that SRR’s proposal was superior to STC’s to be reasonable and not the result of unequal treatment.

STC challenges the agency’s assessment of a weakness in its proposal under the technical approach factor relating to its proposed ETF operations. As noted above, the weakness was assessed because the agency determined that STC’s proposal’s was based on a reduction in ETF processing volume that was three to four times lower than the current volume flowing through the ETF. STC asserts that it did not assume volume reductions and complains that the agency misinterpreted its proposal.

According to the SEB report, the current ETF processing volume ranges from 11 to 24 million gallons per year. The agency concedes that, consistent with this report, STC’s cost proposal states that the “current utilization of ETF is . . . estimated at 15-20 [million gallons] per year throughput.” However, STC’s proposal included other statements that suggested to the agency that STC was assuming significant reductions in ETF processing volumes. For example, STC priced its ETF chemical treatment costs “based on a treated flow of 5.7 [million gallons] per [y]ear,” and proposed in its technical approach to deactivate ETF processing “trains” and reduce staffing from three shifts to one, which the agency concluded was insufficient to process the current ETF volume. STC was specifically informed during discussions about the agency’s concerns with the 5.7 million gallon assumption and the reduction in processing trains, was asked to substantiate its volume assumptions and the train reductions in its final proposal revision, and advised that current “ETF requirements may be 3 to 4 times that assumed by STC.” STC failed to address this issue in response to discussions, and based on GAO’s review, the agency reasonably assessed a weakness to the proposal as a result.

STC complains that DOE misevaluated the offerors’ key personnel. The record supports the agency’s basis for distinguishing between SRR’s and STC’s proposed key personnel. With regard to STC, the two individuals had only managed staff of no more than half of what they would be responsible for here. That is, STC’s proposed operations manager, who would be responsible for the overall project, would be responsible for approximately 1,000 core, matrix and subcontractor personnel here, but had previously only managed 500 personnel for a limited period of time. Similarly, STC’s proposed operations and maintenance support manager would be responsible for 365 full time equivalents plus additional subcontractor support personnel, but had only previously supervised, at most, 95 personnel. In contrast, SRR’s proposed project manager, who would be responsible for 1,772 personnel, had managed workforces as large as 2,000; and SRR’s tank farm manager had previously managed both tank farms separately so managing both tank farms together was not considered a proposal risk. Based on GAO’s review, it finds the agency’s evaluation to be reasonable.

STC contends that SRR’s proposal should have received a lower past performance rating due to the poor performance of its team members or subcontractors. Most significantly, STC contends that the agency misevaluated the past performance of WSRC in assessing it as a strength in the evaluation. As noted above, WSRC is a wholly owned subsidiary of URS Washington Division (an SRR team member) that performed tank closure activities at the SRS. STC contends that WSRC had “repeated instances of poor performance” under the SRS contract. According to STC, the firm has not closed any tanks since 1997, missed regulatory commitments for closing Tanks 18 and 19, faced two allegations of False Claims Act violations (including an allegation of fraud), and committed other acts of poor performance.

The record shows that the agency reasonably considered all of the adverse information that has been cited by STC. For example, with regard to WSRC’s failure to close tanks and meet deadlines, the agency noted that this was not due to the poor performance of WSRC. Rather, delays were due to the “complex regulatory framework” governing this work, the numerous legal challenges from outside entities to DOE’s tank closure activities, and the often changing decisions of DOE and other regulatory authorities to alter tank closure requirements and timetables for closure, all of which were outside of WSRC’s control. Moreover, the alleged False Claims Act violation was resolved by the parties and the contracting officer for that contract ultimately determined that it would not be reported as adverse past performance. SRR addressed these and other areas of past performance during discussions, and its responses alleviated the agency’s concerns.

The record shows considerable favorable past performance references for WSRC, which the SEB also took into account. The SEB considered all the allegations of adverse performance pointed out by the protester, and reasonably determined that the negative performance issues did not increase the risk of performance when balanced against the many instances of positive past performance. Taken as a whole, the SEB assessed WSRC’s performance to be a strength, and, based on our review, we find this conclusion to be reasonable. In any case, the SEB and SSA found STC’s past performance to be superior to SRR’s, primarily because of the negative past performance discussed above, and the SSA considered STC’s superior past performance in making the source selection decision.

STC asserts that the agency’s source selection decision is unreasonable and does not support the agency’s conclusion that SRR’s proposal was worth the additional $550.6 million in cost over STC’s proposal. However, as discussed above, we find that the agency performed a comprehensive evaluation that was reasonable and consistent with the evaluation criteria and applicable procurement laws and regulations. This record is well-documented and shows that the SSA made a reasoned judgment, based on all of the information before him, that SRR’s proposal was the best value to the government and was worth the additional cost. The protest is denied.

Share

Related Posts

Peak-a-Boo, I see You! – An Agency’s Undocumented Best Value Analysis.

February 1, 2023

CEdge Software Consultants LLC, B-408203, July 19, 2013

August 12, 2013

Lockheed Martin Integrated Systems, Inc., B-408134.3; B-408134.5, July 3, 2013

August 1, 2013

Quest Diagnostics, Inc., B-405081.5, December 19, 2012

June 26, 2013

Comments are closed

Search Bid Protest Weekly

Need help with a bid protest?

Call us at: 703-556-0411 Or fill out this form:

Categories

  • 8(a) Sole Source Awards
  • Acknowledging Amendments
  • Adequately Written Proposal
  • Adverse Agency Action
  • Adverse Impact Analysis
  • Agency Tender
  • Alternate or Previously-Approved Product
  • Alternative Dispute Resolution
  • Ambiguity in Solicitation
  • Attorney's Fees
  • Bad Faith in Evaluation
  • Below-Cost Offer
  • Best Value
  • Beyond the Scope
  • Bias
  • Bid and Proposal Costs
  • Bid Bond
  • Bid Compliance
  • Bid Protest Decisions
  • Bid Protest Jurisdiction
  • Bid Protests
  • Bidding Best Practices
  • Blanket Purchase Agreement
  • Blanket Purchase Order
  • Blog Articles
  • Bona Fide Needs Rule
  • Brand Name or Equal
  • Broad Agency Announcement
  • Brooks Act
  • Bundling or Consolidation
  • Buy American Act
  • Cancellation of a Solicitation
  • Capability of Contractor
  • CCR Registration
  • Certificate of Competency (COC)
  • Certification Requirements
  • Changes Clause
  • Clarifications
  • Clear and Convincing Evidence
  • Clearly Meritorious Protest
  • Clerical Error
  • Commercial Item Acquisition
  • Competitive Range
  • Compliance
  • Conflict of Interest
  • Construction Design-Build
  • Construction Services
  • Contract Administration
  • Contract Modifications
  • Contracting Preference
  • Contractor Responsibility
  • Corporate Capability
  • Corrective Action
  • Cost Accounting System
  • Cost Evaluation
  • Cost Realism
  • Cost Reimbursement Contract
  • Cost-Technical Trade-Off
  • Customary Commercial Practice
  • CVE
  • DCAA Audit
  • Debriefing
  • Default Termination
  • Deficient Price Proposal
  • Delivery Order jurisdiction
  • Delivery Schedule
  • Designated Employee Agent
  • Disclosure of Price
  • Disclosure of Source Selection-Sensitive Information
  • Discussions
  • Disqualification
  • Documentation of Evaluation
  • Domestic Production Requirement
  • Education Center Articles
  • Electronic Filing
  • Evaluation Criteria
  • Evaluations
  • Events
  • Executive Order Compliance
  • Experience of Contractor
  • Experience Requirement
  • Facility Clearance
  • Fair Market Price
  • FASA
  • FedBizOpps
  • Federal Prison Industries (FPI)
  • Filing Deadlines
  • Final Evaluation
  • Final Proposal Revisions
  • Financial Responsibility
  • Fixed Price Contract
  • Former Government Employees
  • FSS Contract
  • GAO Bid Protest Review
  • GAO Jurisdiction
  • GAO Standard of Review
  • Government Contracts
  • Government Office Closings
  • Government Surplus Material
  • GSA Lease
  • HUBZone
  • ID/IQ
  • Impaired Objectivity
  • In-Sourcing
  • Incentive Fee
  • Inclement Weather Delay
  • Incomplete Proposal
  • Incorporation by Reference
  • Incumbent Capture
  • Incumbent Status
  • Independent Government Estimate (IGE)
  • Individual Environmental Report
  • Industrial Mobilization
  • Innovations
  • Interested Party
  • Invitation for Bid
  • Invited Contractor
  • Javits-Wagner-O'Day Act
  • Joint Venture
  • Key Personnel
  • Labor Hours
  • Labor Rate Pricing
  • Late Proposals
  • Late Submissions
  • Level of Effort
  • Licensing Requirements
  • Limitation on Subcontracting
  • Liquidated Damages
  • Lost Proposal
  • Lowest Price Technically Acceptable
  • Mail-Box Rule
  • Management Planning
  • Market Research
  • MAS Contracts
  • Material Misrepresentation
  • Material Solicitation Amendment
  • Material Solicitation Terms
  • Meaningful Discussions
  • Micro-Purchase Threshold
  • Minimum Requirements
  • Misleading Discussions
  • Mistake
  • Mitigation Strategy
  • Multiple Awards
  • NAICS Code
  • National Security
  • Negotiation
  • News
  • Non-Procurement Instruments
  • Novations
  • Offeror Representations
  • OMB Circular A-76
  • Option Exercise
  • Oral Presentations
  • Organizational Conflict of Interest (OCI)
  • Page Limitations
  • Past Performance
  • Past Performance Information Retrieval System (PPIRS)
  • Performance Based Standards
  • Permits and Responsibilities
  • Personal Conflicts of Interest
  • Post-Award Changes to the Contract
  • Post-Protest Re-Evaluations
  • Practicable Alternative
  • Pre-Award Protest
  • Pre-award vs. Post-award Requirements
  • Pre-Qualification of Offerors
  • Pre-Solicitation Notice
  • Prejudice
  • Price Calculation Error
  • Price Calculation Error
  • Price Evaluation
  • Price of FSS Task Order Quote
  • Price Realism
  • Price Reasonableness
  • Price Reduction
  • Procurement Announcement
  • Procurement Integrity
  • Product Testing
  • Proposal Acceptance Period
  • Proposal Detail
  • Proposal Evaluation
  • Proposal Extension
  • Proposal Standards
  • Proposals
  • Protest Terms of Solicitation
  • Protester Comments
  • Public-Private Competition
  • Randolph-Sheppard Act (RSA)
  • Rate Tenders
  • Re-Certification of Size Status
  • Reconsideration
  • Reevaluation
  • Reevaluation Standards
  • Reimbursed Attorney's Fees
  • Reimbursement of Protest Costs
  • Rejection of Proposal
  • Relaxation or Waiver of Requirement
  • Relevancy of Past Performance
  • Reliance on the Proposal
  • Remedies
  • Requirements Contract
  • Responsibility
  • Responsiveness
  • Restricted Competition
  • Resumes
  • Revision of Proposal
  • Revision of Proposals
  • Risk
  • Rule of Two
  • SBA Status protest
  • Scope of GAO Review
  • SDVOSB Set-Asides
  • Significant Issue Exception
  • Simplified Acquisition Procedures
  • Site Visit
  • Size Determination
  • Size Protest
  • Small Business Innovation Research (SBIR) Program
  • Small Business Set-Asides
  • Small Business Subcontracting Goals
  • Sole-Source Award
  • Solicitation Amendment
  • Solicitation Requirements
  • Source Approval
  • Source Selection Authority
  • Source Selection Decision
  • Source Selection Plan
  • Sources Sought Notice
  • Staffing Plan
  • State and Local Requirements
  • Status of Forces Agreement (SOFA)
  • Subcontract Protest
  • Subcontractor Experience
  • Suspension and Debarment
  • Taking Exception to RFP Requirements
  • Task Orders
  • Teaming Agreement
  • Technical Acceptability
  • Technical Evaluation
  • Technical Evaluation
  • Termination of Award
  • Terms of the Solicitation
  • Timeliness of Protest
  • Timely Filing
  • Timely Performance
  • Timely Proposal Submission
  • Trade Agreement Act
  • Unbalanced Pricing
  • Unduly Restrictive Terms
  • Unequal Access to Information
  • Unequal Treatment of Offerors
  • Uniform Time Act of 1996
  • Unstated Evaluation Criteria
  • Unusual and Compelling Urgency
  • Use of Appropriated Funds
  • Veterans First
  • VIP Database
  • VOSB Set Asides
  • Wage Determination

Get Help


Talk to an
attorney who
specializes
in bid protests:

+1-703-556-0411
Email

Keep up to date
on bid protest
decisions and
policies:

© 2023 Bid Protest Weekly

  • LinkedIn
  • Google +
  • Twitter
  • Facebook
  • Home
  • Bid Protest Ed Center
  • Blog
  • Topics
  • About Us
  • Contact Us
  • Home
  • Bid Protest Ed Center
    • WHAT is a bid protest?
    • WHO can file a bid protest
    • DO I need an Attorney?
    • WHY Should you file a bid protest?
    • WHEN Must you file a bid protest?
    • WHERE can you file a bid protest?
    • READING the RFP
  • Blog
  • Topics
  • About Us
  • Contact Us
  • LinkedIn
  • Google +
  • Twitter
  • Facebook

+1-703-556-0411