Oak Ridge Environmental Partners, LLC

DOCUMENT FOR PUBLIC ELEASE
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Take the decision

Matter of: Oak Ridge Environmental Partners, LLC

File: B-420358; B-420358.2

Date:February 1, 2022

DIGEST

Protest against agency’s past performance evaluation is denied if the record proves that the agency’s evaluation was reasonable, in accordance to the solicitations evaluation criteria.

Oak Ridge Environmental Partners, LLC (OREP)[1]Oak Ridge, Tennessee, – Defends the award of a contract for United Cleanup Oak Ridge, LLC, (UCOR).[2]Germantown, Maryland. 89303319REM000047 was issued by Department of Energy (DOE) for the Oak Ridge Cleanup Contract to provide cleanup and associated services at East Tennessee Technology Park, Y12 National Security Complex, Y-12, and Oak Ridge National Laboratory. OREP challenges the agency’s past performance.

We deny the protest.

BACKGROUND

One of DOE’s strategic goals is to address the challenges of cleaning up the nation’s Manhattan Project and Cold War legacy. DOE will reduce its environmental liabilities by accelerating cleanup in high-risk areas. This will reduce risk and allow DOE to return land for future uses. Relevant here is the Oak Ridge Environmental Management mission (OREM). It is to clean up the Oak Ridge Reservation (ORR), protect the region’s health and environment, make clean land accessible for future use, and allow DOE to fulfill its vital missions in science and energy. Agency Report (AR), Tab B.1, Source Evaluation Board (SEB) Rep. at 11.[3]

DOE issued the RFP to the ORCC on December 18, 2019, and then amended it twice. SeeAt4. The RFP was intended to lead to the award of one indefinite-delivery, single-quantity contract with an order period of 10 years. AR, Tab A.1, RFP, B.2. Task orders can be issued on either a fixed-price basis or cost-reimbursable, with a maximum contract ceiling of $8.3 trillion. Id. The ORCC covers the following major tasks:

Cleanup: Preparation for demolition/or destruction of many facilities and remediation environmental media at ETTP and ORNL and Y-12. This includes disposal of all associated rubbish and improvements.e.g.Facility plans for future use or historic preservation.

Construction and/or Startup Mission Support Facilities: Complete the first phase of construction and begin operation of the Environmental Management Disposal Facility. Also, complete commissioning of Outfall 200 Mercury Treatment Facility (MTF), at Y-12.

Operation:

o Liquid and Gaseous Waste Operations: Operate & maintain LGWO facilities to dispose OREM liquid and gaseous and ORNL wastes. Also ensure reliability of essential systems and services.

o Transuranic (TRU), Solid Waste Debris Storage & Shipment Support: Manage OREMs legacy waste inventory and manage OREMs remaining TRU. Also, support shipments at Waste Isolation Pilot Plants or other offsite disposal sites.

o Surveillance of facilities and sites at ORNL and Y-12, under OREM responsibilityEnsure OREMs are maintained in excess of contaminated facilities and sites to minimize risk while facilities demolition, remediation, and/or transfer.

o Comprehensive Environmental Response, Compensation, and Liability Act Disposal Facilities and ORR Landfills: Operate, maintain and dispose of waste disposal facilities to ensure the efficient disposal of cleanup debris.

o Outfall 200 MTF Operations: Operate & maintain the MTF constructed to reduce mercury contamination of Y-12 surface water.

o ETTP Site Closure, Historic Preservation Surveillance and Maintenance and Environmental Monitoring: Complete closure ETTP as DOE site, implement surveillance, maintenance, and environmental monitoring responsibilities, complete historic preservation obligations.

See, e.g., AR, Tab A.1, RFP, amend. No. 2, Performance Work Statement (PWS), C.3, C.4, C.5; Tab B.1, SEB Rep., at 11-12.

The ORCC contractor will not only be responsible for the above-mentioned principal tasks but also for (i] contract transition, (ii] administration of long-term disabilities, post-retirement health benefits, and pension contributions. (iii). Other core functions include engineering, federal facility agreement, (FFA), and related support, public relation and media support, as well as historic perseverance and cultural resource management. AR, Tab A.1, RFP, amend. No. 2, PWS, C.1, C.2, C.6.

The award was determined on a best value tradeoff basis taking into account the following factors, which were ranked in order of decreasing importance: (1) key personnel;(2) past performance; (3) management approach; and (4) cost. AR, Tab A.1, RFP M.6 andM.7. When taken together, the non-price factors were significantly more important than the price. Id., M.6. We can only use the past performance factor to resolve the protest, as we have already discussed.

Concerning past performance, the RFP stated that the agency would assess each offeror, which includes all members of a teaming agreement pursuant to Federal Acquisition Regulation Section 9.601(1). This will be done by looking at relevant and recent past performance information for offerors performing work similar to that of the master ORCC PWS. Id., M.3(a). Similar scope, size and complexity were to be evaluated in the context of the work that a particular entity was proposing to do. The following was the definition: (a) scope type work (e.g., work as identified by the master ORCC PPWS, including similar work that is non-nuclear and/or similar to non-DOE work; (b), size dollar value (approximately average annual value in comparison to the work proposed; for evaluation purposes, the annual ORCC contract valued was approximately $200 million); and, (c) complexity performance issues (e.g.Managing complex complex contracts in highly regulated industries, managing complex contractor HRM requirements, and overcoming obstacles to safely accelerated work scope. Id.According to the RFP, the more relevant the work was, the more consideration could be given for past performance information. Id.

The RFP stated that the agency would not assign past performance assessment differently among contractors working together as partners. Each entity was responsible for the overall performance of the prior or ongoing contract. Id.All partner companies that have been awarded past performance contracts will be credited equally (positively or negatively) for past performance information. The RFP indicated that relevancy determinations on past performance contracts could differ depending on the specific scope of each entity. Id.In the RFP, it was stated that subcontractors would be assessed on past performance information. It would be based on their performance in work similar in size, complexity, and scope to that being performed on the ORCC. Id., M.3(b). The RFP stated further that the agency would only assess past performance information for work that was comparable in scope, size, complexity, and importance to the acquisition. Id., M.3(f).

In response to the RFP, five proposals were received by the agency. The agency received five proposals as a response to the RFP.

AR, Tab B.1, SEB Rep. at 15.

Relevantly, OREP submitted 15 past performances references, three for VNS, NFS and Parsons, the three members of the prime joint enterprise, and two for each of three proposed subcontractors. After establishing the ORCC scopes for work by the PWS task that each entity was supposed to perform, each reference was detailed by the SEB. AR, Tab B.1, SEB Rep. at560578. The SEB considered nine of the references to be relevant to the ORCC in terms of size and scope and complexity. It also considered six references for the proposed subcontractors. The SEB rejected six other references because they were not comparable to the ORCC. The SEB assessed the quality of the nine relevant reference and gave some strengths to those with positive past performance. However, it declined to give strength to other references that had marginal ratings or information indicating safety performance problems. Id. at432442.

The SEB then created a narrative summary that explained the reasons for the SEB’s decision to assign a satisfactory overall confidence rating. First, the SEB explained that the three relevant references to the prime joint venture are indicative of OREPs ability to perform the PWS. This is due to the limited past performance information and how relevant these contracts collectively are compared to the rest of the PWS. [ORCC]Size, scope, and complexity of the solicitation. Id.443. The SEB determined that only one of three references was worthy of a strength based upon performance quality. Id.The SEB also found that subcontractors’ references were not relevant and were evaluated strengths based upon the agencys quality assessment. However, subcontractors past performance was not as important than the LLC member entities past performance since the LLC members will be fully responsible for the execution of any contract. Id. Summarising, the SEB concluded that OREP teams’ past performance was acceptable and customer satisfaction with some risk. It gave an overall satisfactory confidence rating. Id.443-44 Source selection officials agreed with the SEBs evaluations of OREPs past performance. AR, Tab B.5, Source Selection Decision at 36–37

After reviewing all of the SEBs evaluation, the source selection official made a detailed tradeoff decision. Id.46-51 Source selection official concluded that UCORs proposed was a major disqualifier over all other proposals based on the most important factor (key personnel) and a discriminator above all other proposals based on the second most significant factor (past performances). Id.48 48. Id.Source selection officials concluded that UCOR’s benefits under the significantly more important nonprice factors outweighed its slight premium compared to Offerors B, C, and A. Therefore, it was the most beneficial option for the government. Id.51 After a briefing, the protest followed.

DISCUSSION

OREP raises two main objections to the agency’s evaluation of the protesters’ past performance. First, the protester claims that DOE made it impossible for the agency to evaluate the relevancy of its past performance. DOE ostensibly required each reference to demonstrate past performance in all ORCC task area that the entity was proposed. OREP asserts that the agency was required aggregate performance across all references of entities as well as all OREP team past performance references. The protester asserts that if the agency had reasonably evaluated OREPs’ past performance (as opposed the evaluation of relevancy on a contract by contract basis), then their past performance would have been considered very relevant and warranted an outstanding overall confidence rating. The protester also claims that the agency relied unreasonably on an unstated evaluation criteria when it gave less weight to the OREPs proposed subcontractors’ past performance. We find no basis for protesters objection to agency’s past performance evaluation.[4]

Agency evaluations of past performance are subjective by nature. We will not disturb agency assessments regarding relevance, scope and significance unless we can clearly demonstrate that they are unreasonable or inconsistent. 22nd Century Techs., Inc., B-418029 et.Dec 26, 2019, 2020CPD 14, at 11. Protesters disagreeing with the agency’s judgment does not mean that the agency’s evaluation was unreasonable. FN Mfg. LLC, B402059.4, B-402059.5, Mar. 22, 2010, 2010 CPD104

OREPs main objection is that DOE did not evaluate the past performance of each entity that was proposed to execute the contract. Instead, the agency improperly analyzed each past performance reference to determine if it was relevant in relation to all the ORCC PWS tasks that the entity was being proposed to perform. The protester claims that the agency should have gathered the contracts of all entities to determine if they collectively reflect relevant past performance in relation to all the ORCC PWS tasks that the entity was proposed to complete. Although the protesters have a narrow objection about how agency should have aggregated work across different contracts, it fails to address a fundamental problem with agency’s references. The detailed contemporaneous analysis by the agency raises serious concerns about the relative relevancy of the work performed by the protester in relation to its past performance references. The protester has not challenged these findings which support the agency’s relevancy analysis. Here is an example of one of the prime members of the joint venture.

VNS is recommended to perform approximately [DELETED]% of the total ORCC requirements ($[DELETED]Protesters: $216.4 million annual estimate); work under ORCC tasks (i) C.1, Transition; (ii), C.2, postretirement medical benefits, long term disability and pension contributions; and (iii) C.3, cleanup. (v) C.6, core functionalities (specifically C.6.1 and C.6.2). See, e.g.AR, Tab B.1, SEB Rep., 560; Tab C.1, OREP Vo. 2 at 23, 75. VNSs first reference, titled [DELETED]This includes the design and delivery an ion exchange system for treating and decontaminating seawater containing reactor cooling waters and 200 tons of cesium-contaminated lubricants at Japan’s Fukushima Nuclear Power Station. AR, Tab B.1, SEB Rep. p. 561; TabC.1, OREP proposal Vol. 2 at 74–80.

OREP represented in its proposal that [DELETED]Reference was relevant to ORCC tasks C.1, C.2, C.3, C.5.1-C.5.8, C.5.9- and C.6. AR, Tab C.1, OREP Proposal Vol. 2 at 75. OREP protests the SEBs finding of the reference limited scope similar to tasks 5.3, C.5.5 and C.5.7. OREP argues that DOEs evaluation that the reference was not relevant on this basis is unreasonable since the reference was not intended to demonstrate past performance with respect these subtasks. OREP claims that the agency should have limited its evaluation of the relevance of this reference to tasks C.1, C.2, C.3, C.5.1 and C.5.8 and C.6. It asserts, but without further explanation, that the reference actually demonstrates relevant past performances with respect to these tasks and subtasks. SeeProtest at 12 (including a chart that shows checkmarks for the assertions that these tasks were performed with respect to this particular reference, but not providing any narrative argument or support for them).

DOE defends the reasonableness and fairness of its evaluation. It argues that it evaluated each reference individually, comparing their size, scope, complexity, and the scope of the tasks that the relevant entity is expected to perform under the ORCC. Alternately, the agency argues that the record supports the reasonableness in the agency’s evaluation because the references to protesters, both individually and collectively, fail to demonstrate substantial similarity to the ORCC’s size, scope, or complexity. SeeCOS/MOL at 35 – 37. We agree that the agency reasonably evaluated the past performance.

Even assuming DOE was required by multiple contracts to aggregate relevant work, there is plenty of contemporaneous analysis that reflects agency concerns about relevance of the work being protested. Also, even if DOEs relevance analysis of the scope is correct, [DELETED]should have been limited only to C.1, C.2, C.3, C.5.1 C.5.8, C.5.9 and C.6, as the record indicates (and OREP doesn’t specifically contest) that agency found protesters’ work under these tasks to be of limited similarity with the work required by ORCC.

DOE concluded that the reference was limited in scope because it did NOT include a transition of operation and maintenance of large complex facilities (including nuclear facilities) over a period of 90 days. DOE also found it to be not comparable under task C.1. Transition. [ORCC]. AR, Tab B.1, SEB Rep. at 561. Under task C.2, post-retirement medical benefits, long-term disability, and pension contributions, the agency found that the reference demonstrated only some relevant experience, as it does not entail managing and funding a site- and project/contract-specific post-retirement medical benefits plan and long-term disability plan in coordination with another site contractor. Id.

The contractor will be responsible to characterization, preparation of demolition, demolition, as well as environmental media remediation under task C.3. The contractor will be responsible to remediate soil and water to comply with regulatory requirements and allow transfer of remediated areas for reuse. This may include the removal or stabilization slabs, subsurface structures, and ancillary above grade structures; soil treatment; soil excavation and disposal; and surface- and groundwater monitoring systems and/or treatment. AR, TabA.1, RFP, amend. No. 2, PWS at 1350. The SEB concluded that VNSs had little similarity to the characterization and preparation for demolition of extensive contaminated buildings and environmental media remediation of environmental media similar to ORCC. AR, Tab B.1, SEB Rep. at 561.

The subtask 5.1 LGWO and Life Extension was assessed by the evaluators. It required VNS to set up, operate, and maintain a system that was custom-designed to treat contaminated waste. However, the contract didn’t include long-term reliability for an extensive aging facility like LGWO. Id.Subtask 5.8, legacy waste disposal, was evaluated by the evaluators. It did not include the disposal of tanks as waste or other difficult wastes comparable to C.5.8. Id.Subtask 5.9, infrastructure improvement, was found by the SEB to be limited in scope. This is because the reference did not include infrastructure enhancements to support large-scale cleanup projects like ORCC. [ORCC]It did not involve design basis risk mitigation. Id.

Final, in regard to task C.6, core function, the evaluators determined that the reference contained some scope elements similar the ORCCs requirements but scope similar many core functions were not included. Some examples include environmental sustainability, FFA support and public relations. [information technology]Administration of pensions, reservation management, emergency management, fire protection, and historic preservation, as well as land use controls. Id.Even though DOEs scope should have been restricted to tasks C.1, B.3, C.5.1 and C.5.8, C.5.9 and C.6, the uncontested records reflect that the reference was still reasonable evaluated as having limited similarity with the ORCCs scope.

The agency identified issues with the scope and complexity of the VNS reference. The annual value of the reference was approximately $30 million. This is less than half the projected $500,000 of VNSs.[DELETED]Annual workshare under ORCC Id. In terms of complexity, DOE found that the reference was similar in complexity in certain aspects but had limited complexity in other areas. First, the reference was simple in maintaining, operating, and decontaminating aging facilities (D4). Id.Second, the reference had limited similarity in terms of managing multiple funding sources and complex CHRM requirements. Id.

DOEs concerns regarding the relevance of VNSs initial reference were not based on VNSs experience with the entire workshare under ORCC. Instead, the agency provided detailed findings indicating that the reference was of limited relevancy to VNSs proposed ORCC Workshare. The agency also noted that VNSs proposed work was smaller than that of ORCC and that it had some similar complexity to ORCC. These (and similar) detailed evaluation findings contributed to the agency’s evaluation of the protesters’ past performance are not rebutted by OREPs protest.

Further, the record shows that DOE’s evaluation findings about the relevancy of OREP teams past performance were not limited to a small number of contracts. The record reflects – and OREP didn’t specifically challenge -common assessed concerns which cut across the OREP team past performance references. We find no basis for protesters’ general allegations. If the agency had aggregated past performance from joint venture members and subcontractors across all of their past performance references it would have rated the protesters as very relevant and awarded them an outstanding overall rating.

For example, the prime joint venture members all suggested that they perform work under task 3. AR, Tab B.1, SEB Rep. at 560. As mentioned above, the agency was able to determine that VNSs first mention was not relevant to task C.3. This is because it had only limited similarities to the characterization and preparation for demolition, demolition and environmental remediation, of large contaminated facilities and other environmental media, similar to the ORCC. AR, Tab B.1, SEB Rep. at 561. However, similar concerns were identified in each one of the eight references submitted by the prime joint venture members. See id.562 (finding VNSs second mention did not include extensive analysis and other activities necessary for D4 preparation of complex facilities and extensive environmental media cleanup of [ORCC]564 (finding VNS’ third reference did NOT discuss characterization or preparation activities specifically for D4; 565 (finding NFS’ first reference did no environmental media remediation beyond characterization of surrounding soils and radiological and chemical contamination supporting work planning; and the specific types of contamination that were not included); 566. [a]Even though this is a major demolition project, scope didn’t include significant characterization to deal with similar types or levels, safety basis documentation reveiw, or environmental media remediation); 567. 568. Parsons’ first reference doesn’t include extensive characterization or other activities in preparation D4 of many and vastly radiologically contaminated buildings or extensive environmental medium remediation similar to that of the scope of. [ORCC]570 (Finding that Parsons’ second referent had some scope activities similar in some respects to some of his environmental remediation work [ORCC]However, it is not clear that the references to chemical weapons and munitions are principal.[al] contaminants of concern for ORCC and the scope did not include characterization and other preparatory activities for D4 of large radiologically-contaminated facility or D4 of many such facilities); 572 (finding that Parsons third reference had some similar scope, but it does not include characterization and other activities in preparation for D4 of vast contaminated facilities or extensive environmental media remediation).

This representative example shows that DOE identified relevance concerns (or at least without being challenged by OREP) with all past performance references for the prime joint venture members.[5]The record does not support protesters’ claims that if the agency had reasonably aggregated past performance of joint venture members, its proposal could have collectively demonstrated very relevant past performances across the entire scope of the ORCCs PWS so that it would have earned an outstanding confidence rating. Contrary to what the record indicates, such aggregation wouldn’t have resolved all of agency’s concerns about OREPs limited relevant previous performance.

OREP also asserts that OREP unreasonably relied upon an unstated criterion for evaluating the past performance of its proposed subcontractors. Although the SEB was positive about the subcontractors past performance, and noted that it was important for their future, it also found that it wasn’t as important as the LLC member entities past performance since the contract will be executed solely by the member companies. AR, Tab B.1, SEB Rep. at 443. We do not believe there is any basis for the protesters’ objection.

This argument is untimely as an initial matter. Our Bid Protest Regulations state that protests based on any other than alleged improprieties found in a solicitation must not be filed later than 10 calendar day after the protester discovered, or should have known about, the basis of protest. 4 C.F.R. 21.2(a)(2). 21.2(a)(2). Noble Supply & Logistics, B-417269, Apr. 30, 2019, 2019 CPD167

OREP received the SEBs evaluation findings and the SEB Report specifically addressing the weight given to the past performance of the proposed subcontractors as part its debriefing. See Protest, exh. 2, OREP Enclosure Proposal Evaluation Summary, at 93. The protester should have known or should have known that this was the basis for its protest at that point. OREP didn’t challenge the SEBs finding during its initial protest and instead filed a supplemental protest within ten days of the agency’s early disclosure of documents. Although the protester claims that it was filed within 10 days of the agency’s disclosure of the source choice decision, the source selection determination did not contain any new material information beyond what was disclosed to the protester in its SEBs evaluation report. This was part of OREP’s debriefing. AR, Tab A.5, Source Selection Decision at 37. OREP’s supplemental protest allegations were untimely because they were not raised within 10 days after it first learned about the basis for its protest.

Even if we considered the merits of this argument, we do not believe there is any basis to support the protest. We have repeatedly explained to you that the agency has the discretion to determine the significance and weight of subcontractors past corporate performance. This allows the agency to conclude that subcontractors’ past corporate performance is less valuable. Addx Corp., B414749 et.August 28, 2017, 2017 CPD275 at 7 MIRACORP, Inc., B410413.2 Feb. 23, 2015 at 5:15 PM, 2015CPD98 at 5 Emax Fin. & Real Estate Advisory Servs., LLC, B408260 July 25, 2013, 2013 CPD 180, at6. The protester may have felt that subcontractor past performance information should be given more weight in agency’s evaluation. However, this disagreement doesn’t prove that agency acted unreasonably.

OREP may have reservations about the summary level ratings for past performance references. However, it doesn’t raise any credible objections concerning DOEs detailed findings. Overall, the record shows that OREP carefully reviewed the past performance references and reasonably concluded that they did not include all of the dimensions, scope, or complexity of the protesters.
ORCC and was therefore given a rating of satisfactory confidence. This record shows that there is no basis to support OREPs objections about the agency’s assessment.

The protest is denied.

Edda Emmanuelli Perez
General