Protest challenging the agency’s evaluation of the protester’s proposal is sustained, where the agency eliminated the protester’s proposal from consideration for award based on concerns about its technical approach while ignoring similar evaluator concerns about one of the awardee’s proposals. GAO also found the agency unreasonably assessed a weakness to the protester’s proposal based on its compliance with a technical document provided by the agency. GAO found that either the weakness itself was unreasonable, based on the solicitation requirement that offerors comply with the technical document, or that the agency’s discussions were not meaningful, because the agency did not inform the protester that its compliance with the document had created concerns about its technical approach.
Bristol Environmental Remediation Services Inc. protested the U.S. Army Corps of Engineers’ rejection of its proposal for environmental remediation and munitions response services.
Bristol challenged each of the weaknesses assessed to its proposal and argued that its proposal warranted an acceptable rating under the sample project technical approach factor.
As an initial matter, GAO noted that the five weaknesses that formed the basis for the marginal rating were not significant weaknesses or deficiencies. Rather, it was the consideration of all five weaknesses in combination that apparently led the agency to assign the marginal rating.
During the protest, the agency conceded that three of the weaknesses were improperly assigned. GAO then addressed the remaining two weaknesses.
The sample project required the offeror to provide a comprehensive plan to respond to a trench that contained potentially unexploded ordnance; to excavate the trench and remove the UXO; and to remediate the trench and a surrounding 60-acre area. Offerors were required to describe how they would render the site acceptable for unlimited use and unrestricted exposure. As part of the remediation effort, the contractor would have to perform soil sampling and to identify a “unit of decision” (U/D). A U/D is a specific “lot” size (for example, one acre), and the offerors were required to identify the U/D size, and then explain how sampling would be performed within each U/D.
The agency assessed its first weakness after concluding that Bristol’s proposed U/D size of from one to two acres was too large to accomplish sampling in a manner that would render the site acceptable for UU/UE under applicable law. Bristol argued that this conclusion was unreasonable, and reflected disparate treatment in comparison to the evaluation of one of the awardees’ proposals.
GAO did not review the scientific basis for the agency’s conclusion, but agreed the evaluated reflected disparate treatment. The agency identified a similar weakness in an awardee’s proposal based on the adequacy of its response to the sampling requirement. While this resulted in the lowering of its rating from acceptable to marginal for this factor, the source selection authority changed the rating back to acceptable. While both offerors were criticized by the evaluators for the adequacy of their sampling protocols, the agency made award to one firm while eliminating Bristol from consideration for award. GAO found this amounted to disparate treatment.
The second weakness related to how Bristol proposed to excavate the munitions trench and remove possible UXO. Bristol proposed to have UXO technicians enter the trench with an array of hand-held tools for munitions and metal detection and survey a discrete area of the trench to determine the existence of “anomalies” in order to detect the presence of possible munitions to a depth of 12 inches. Once it was determined that there were no anomalies present to a depth of 12 inches, the trench would be excavated using earth moving machinery by removing soil to a depth of six inches. During this process, all UXO technicians would exit the trench, and one remaining UXO technician would be present near the trench as a “spotter” to observe. Once the 6-inch lift was accomplished, the UXO technicians would return to the trench to again perform a survey of the work area to a depth of 12 inches to ensure it was clear of any anomalies. Another 6-inch lift would be performed, and so on, until all anomalies were detected and removed, or until the trench was excavated to the specified depth.
In the event an anomaly was detected, the trench would be excavated using hand tools rather than the EMM to ensure that no anomaly would be inadvertently struck. Bristol proposed to excavate entirely by hand whenever an anomaly was discovered within 12 inches of the surface, and to remove any uncovered munitions by hand.
During the evaluation, the agency expressed concern about this approach. The evaluators noted that some of the possible buried munitions could include a bomb described as a type of munitions with the greatest fragmentation distance. The agency evaluators were concerned that, should such a bomb be struck during excavation, the armoring on the EMM would be inadequate to protect its operator, and personnel in or around the trench (more specifically, the UXO technician spotter) could be injured or killed. The agency evaluators therefore expressly concluded that robotic excavation equipment would be the appropriate solution.
During discussions, the agency asked Bristol how its personnel would be protected from an accidental detonation of this type of bomb. Bristol responded to the question by largely reiterating the methodology described above. The agency continued to assess the weakness based on Bristol’s failure to propose robotic equipment instead of human technicians to perform the excavation.
In its protest, Bristol argued that its methodology was consistent with the engineering guidance included in the RFP and therefore this approach could not be considered a weakness. Alternatively, Bristol argued the agency failed to provide meaningful discussions, since apparently only a robotic equipment solution would have been acceptable to the evaluators and such an approach was at variance with the guidance included in the RFP.
GAO agreed that Bristol’s proposed approach appears consistent with the guidance included in the RFP. The solicitation specifically incorporates, and requires compliance with, an agency-issued publication entitled “Explosives Safety and Health Requirements,” which describes the procedure for intentionally removing buried munitions using an armored EMM, and limiting the use of the EMM to circumstances where any identified anomaly is at least 12 inches below the area being excavated, after which excavation is to be performed by hand.
Accordingly, GAO found that Bristol’s proposal complied with the express terms of the RFP, and that either the weakness was unreasonable or the agency’s discussions were not meaningful. Based on that determination, GAO again sustained the protest.
Bristol Environmental Remediation Services LLC is represented by S. Lane Tucker of Stoel Rives LLP. The government is represented by Stacy K. Birkel, Department of the Army. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision.
