sj~-~ ~, THE _0rAPTROLLER GENERALU2= OEC I 1.\ OF THE UrNITTED STATES

' a WASHINGTON, D. C. 20548a

FILE: 1-191756 DATE: March 6, 1979

MATTER OF: Wismer and Becker Contracting Engineers

and Synthetic Fuel Corporation of America,A Joint Venture tI ID°8

[DIGEST:X

1. Protester's contention that awardee's technicalproposal was nonresponsive is inappropriatein context of negotiated procurement. FederalProcurement Regulations (FPR) provide that dis-cussions shall be conducted with all responsibleofferors submitting proposals within competitiverange, price and other factors considered. GAOhas held term "other Eactors" includes technicalacceptability of proposals.

2. In view of fact that it is not GAO functionto make determination as to acceptability oftechnical proposals, GAO will review record ofprocurement to determine whether judgment ofcontracting agency was clearly without reasonablebasis. Record reveals that contracting agency hadreasonable basis in finding awardee's proposaltechnically acceptable. EPA properly found thatawardee satisfied overall technical guideline inRFP that offered mobile pyrolysis system he basedon proven, previously developed technology.

3. GAO is unable to conclude that awardee's proposaldid not comply with general technical requirementcontained in PRP. In GAO's opinion it is clearthat offeror's proven, previously developed tech-nology need not have been proven, previouslydeveloped mobile pyrolysis technology. Rather,RFP required an existing, proven technology capableof being modified to point wher-e it could becomemobile pyrolysis technology. Awardee's mobilepyrolysis system was based on fluidized bed tech-nology which had been proven combustion technologyfor some time.

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4. GAO has consistently stated that Government isnot required to equalize competition in particularprocurement by considering competitive advantageaccruing to firms from award of prior contracts.Test to be applied is whether competitive advantageenjoyed by particular firm would be result ofpreference or unfair action by Government.

5. Contrary to protester's assertions, possiblecompetitive advantage enjoyed by awardee becauseof prior contract is not result of preferenceor unfair action by contracting agency. Therewas no need to disclose any results of prior con-tract work performed by awardee because no per-formance criteria in RFP was based on this priorwork. Further, initial compilation of data gen-erated under prior contract was not received bycontracting agency until after RFP was issued.Moreover, when Government provides performancespecifications offerors are expected to use theirown ingenuity in devising approaches that will meetperformance requirements.

6. Record shows no evidence that awardee wasimproperly preselected by contracting agency.Awardee did not gain superior technical ratingunder RFP from having done prior work. Othertechnically acceptable offerors received highevaluation scores for their prior experience.

7. Fact that EPA stated in procurement record thatdata gathered under prior contract by awardeeverified viability of fluidized bed in mobilepyrolysis mode was taken out of context by pro-tester. Contracting agency stated that technicalacceptability was based solely on what was con-tained in each offeror's proposal. Moreover, GAOfinds nothing in record to indicate agency gaveawardee evaluation points simply because of datait gathered under prior contract. Finally, re-gardless of EPA's general verification of fluidizedbed system for mobile pyrolysis, EPA consideredfluidized bed to be proven technology.

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8. GAO has no basis to conclude that there wasimproper influence in evaluation process eventhough one technical reviewer had been projectofficer for awardee's prior contract. There isno evidence in record that this reviewer had anyimpact on other reviewers. Moreover, there isno indication that this reviewer had any bias infavor of awardee.

9. Record shows that protester was not eliminatedfrom final competition because of any technicaladvantage accruing to awardee. Protester waseliminated because best and final offer was sig-nificantly higher in terms of cost than otherofferors in competitive range. When proposalsare essentially equal technically price becomesdeterminative factor even where price is of lesserimportance in overall evaluation scheme than othercriteria.

10. Drafting of specifications to meet Government'sminimum needs is properly function of procuringagency. However, where issue of whether RFPspecifications overstated contracting agency'sminimum needs centers around interpretation ofRFP provision, resolution of issue requires, inevent ambiguity exists, determination by GAO asto whether agency's interpretation of this provisionis reasonable.

11. Viewing RFP as whole, it is clear that no particulartechnology was required.RFP provided that contractorwas to design and fabricate mobile pyrolysis systemcapable of meeting or exceeding certain establishedperformance criteria. As to technical level of unitmeeting RFP performance criteria, GAO finds noambiguity in language of particular RFP provision.Prohibition against new research work refers to tech-nology which is to be modified in order to meetmobile pyrolysis criteria not to technology aftersuch modification.

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Wismer and Becker Contracting Engineers andSynthetic Fuel Corporation *of America, a joint venture(Wismer), protests the award of a contract under requestfor proposals (RFP) CI770213 issued by the EnvironmentalProtection Agency (EPA). The RFP solicited proposals fora system of production of clean fuels from agriculturaland forestry residues.

Wismer protests on the following grounds:

(1) The system proposed by Energy ResourcesCompany, Inc. (ERCO), the awardee, is not "existing,proven, previously developed" technology and, therefore,is not responsive to the RFP requirements.

(2) ERCO had an unfair advantage over all othercompetitors in developing a proposal because the pro-prietary data generated by ERCO on an earlier researchcontract had not been made public.

(3) The RFP specifications were overrestrictiveof competition in that the offerors were not made awareof EPA's actual requirements and instead bid againstmuch more restrictive criteria than actually needed byEPA for performance of the contract.

In June 1974 the EPA awarded Georgia Tech Universitya contract to investigate the operational limits of amobile waste conversion system based on a "partialoxidation pyrolysis" process. EPA later supplementedthis initial contract with a grant to do further studiesof operational parameters using the existing GeorgiaTech system and modifying certain devices within it forbetter use. During the period of the grant, an indepen-dent study was made of the Georgia Tech concept. Thestudy, coupled with the data generated from actual use,indicated that the Georgia Tech system was technicallyand economically viable as a method for convertingagricultural and forestry wastes to usable fuel products.

The protested RFP was issued on August 3, 1977, witha closing date for receipt of proposals of September 21,1977. The RFP called for proposals for the developmentof a prototype system for production of clean fuels fromwaste materials using a "mobile pyrolysis" concept. Be-cause of a mutual interest, EPA and the California SolidWaste Management Board jointly funded the development

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of the prototype mobile pyrolysis system. The EPAaward to ERCO was for 63 percent of the projecteddevelopment costs. California awarded a separatecontract to ERCO for 37 percent of the costs. Bothcontracts contained the same statement of work,delivery schedule, and inspection and acceptancerequirements.

Originally, the EPA had intended to utilize theGeorgia Tech system itself for the prototype. However,because of difficulties with rights to proprietary dataand because of pending patent applications, the EPAdecided to abandon utilization of the existing GeorgiaTech system. Consequently, the EPA stipulated in theRFP that (1) no proprietary positions would be protectedand all rights to any technology developed with Federaland State of California funds would remain the propertyof the Federal and State of California governments; (2)no new research project was being solicited; and, (3)based on the performance data generated from use of theGeorgia Tech system, certain performance criteria wouldhave to be met.

The ERCO Fluidized Bed System

The EPA states that the RFP clearly shows that theGeorgia Tech work provides the basic performance criteriaand that any technology meeting or exceeding that criteriawould receive consideration. In this regard, paragraph401 in the scope of work portion provided as follows:

Phase 1: Conceptual Design (2 months)

"This phase consists of taking anexisting 'stationary' technology andmodifying it to the point that it willmeet the afore-mentioned criteria forthe mobile pyrolysis concept. This shallbe based on previously developed and proventechnology and shall not include any newresearch work. The product of this effortshould be: (1) An artist's sketch of thesystem; (2) Process flow diagrams andPiping and Instrument diagrams; (3)Material balances; (4) Energy balances;(5) A component list identifying majorpieces of all equipment to be utilized in

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the total prototype mobile pyrolysis system;(6) process/equipment design specificationsand generalized drawings depicting overalldimensions of major pieces of equipment;(7) An economic analysis of the proposedunit. The economic analysis shall includea complete calculation of the cost todesign, fabricate and operate the proposedsystem, including substantiating calculationsand assumptions; (8) A complete narrativedescribing the unit, including operatingconditions; and quantification of externalenergy and water requirements, air emission,waste water discharges and non-fuel residues;(9) A complete field testing plan including adescription of the testing program with a pro-posed schedule and a sampling and analyticalschedule, indicating number of personnel, re-spective work schedules and per diem expensesanticipated." (Emphasis added.)

While admitting that the RFP allows for equivalentor better technology than Georgia Tech's, Wismer, never-theless, emphasizes that any technology proposed mustbe existing, stationary, previously developed technol-ogy and not new research work. Wismer contends that inorder to qualify as existing technology, the technologyshould be in the public domain, such as technical jour-nals, where the technology's value will be subject toindependent, review. Moreover, the physical scale ofthe experimental system upon which the technology isbased should be close to that of the system to whichit will ultimately be applied.

Wismer also believes that the ERCO fluidized bedtechnology for mobile pyrolysis was originally con-ceived by the EPA which then granted ERCO a contractto develop the concept. Wismer states that the onlyavailable source of information concerning the fluid-ized bed technology is a March 1978 EPA paper entitled"EPA's R and K Program in Pyrolytic Conversion of Wastesto Fuel Products." According to Wismer, this paper,published approximately 7 months after the protestedRFP, describes the ERCO system as a fluidized bed on a"sub-pilot plant" scale within the design capacity ofa full scale system. Furthermore, the EPA paper refersto the ERCO work as "research and development," being

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an "investigation of basic reaction kinetics." Sincethe ERCO work was classified as research in March 1978,it must also have been research in August 1977 when theRFP was issued. Therefore, Wismer contends that thefluidized bed system offered by ERCO was not existing,proven, previously developed technology as specified bythe terms of the RFP.

The EPA, however, states that the purpose of thework performed by ERCO was not the development per seof a fluidized bed technology, but rather the acquisi-tion of model chemical kinetic data from the pyrolysisof various solid wastes under varying operating condi-tions. A pilot-scale fluidized bed reactor was chosento collect this data due to the degree of temperature/retention time control achievable with such a device.The EPA further points out that the project referred toin the March 1978 paper as "research" concerned merelythe collection and interpretation of the kinetic dataitself and not to the fluidized bed technology used togenerate such data.

With regard to the fluidized bed system itself,the EPA asserts that it is a well-established method oftechnology. The EPA states that fluidized bed reactorshave been in existence since the 1920's as heat transferand media mixing devices. While recognizing that thefluidized bed has been used principally in the "combustionfield," the EPA, nevertheless, declares that in order forthis technology to be utilized in a partial oxidation orpyrolysis process merely requires that the oxygen inputinto the reactors be nearly eliminated. Consequently,rather than being research, the fluidized bed is estab-lished technology.

Overall, the EPA believes that all offerors had anequal opportunity to submit proposals that would meetthe RFP's performance criteria. Every offeror couldpropose any type of reduced-to-practice technology itchose as long as the technology equaled or bettered theRFP's Georgia Tech based performance criteria. Theexisting stationary technology" limitation was intended

only to preclude from consideration any offeror's "paper"ideas. The EPA states that Wismer's narrow interpretationof "existing, proven technology" would, in effect, have

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eliminated all competition because only one company hasin actual operation, as a mobile pyrolysis technology,the system described in Georgia Tech reports.

In response, Wismer states that it is quite cog-nizant of the fact that the fluidized bed is an estab-lished combustion technology. However, Wismer arguesthat, contrary to the EPA's position, there is a signif-icant technological difference between fluidized bedcombustion and fluidized bed pyrolysis. Wismer allegesthat the fluidized bed pyrolysis system includes a morecomplex assortment of equipment than the relativelysimple fluidized bed combustion system. Moreover,Wismer argues that combustion is a very differentprocess than pyrolysis. Wismer states that combustionis basically a chemical reaction in which organicmaterial interacts with oxygen or air to form gasessuch as carbon dioxide and water. Pyrolysis, on theother hand, is the thermal degradation of plant materialthrough the application of heat to form charcoal, oiland a combustible gas. In simpler terms, combustioninvolves reconverting heat from matter while pyrolysisinvolves converting matter into other forms through theapplication of heat.

With regard to the EPA's position regarding theERCO work using a fluidized bed method of pyrolysis,Wismer contends that the very fact that a privateorganization was engaged to gather new information usinga new and untried test apparatus indicates that researchis involved. In Wismer's opinion, the ERCO work involvedunproven and unavailable technology. Moreover, Wismeralleges that ERCO admitted in a draft report on itswork that considerable difficulties were encounteredin getting the system to operate properly. ERCO's draftindicates that a problem in the off-gas cleanup systemdeveloped and that a new condenser was being designed.Wismer believes it is obvious that ERCO's system was nota standard one operating in a routine manner. Therefore,the EPA should have considered ERCO's system well outsidethe bounds of existing, proven, previously developedtechnology.

ERCO states with regard to Wismer's allegation thatthe system it proposed was not responsive to the RFP andthat there is no statement or information contained inits proposal which would intimate anything other than an

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unequivocal and unqualified offer to perform inaccordance with the terms in the RFP. ERCO refers toour decision in 49 Comp. Gen. 443 (1970) in which westated that unless something on the face of the bid,or specifically made a part thereof, either limits,reduces, or modifies the obligation of the prospectivecontractor to perform in accordance with the terms ofthe solicitation, the bid is responsive. ERCO, then,contends that EPA's acceptance of its proposal willbind it to perform in accordance with all terms andconditions of the RFP upon which it is based.

In response to ERCO's argument, Wismer contendsthat ERCO did not in fact submit a responsive offer.Wismer alleges that there was a limitation on the faceof ERCO's bid which modified its obligation to performin accordance with the terms of the RFP; namely, theproposed technology was noted previously developedtechnology as required by the RFP.

At the outset, we believe it would be inappropriateto discuss the compliance of ERCO's technical proposalwith the RFP in terms of responsiveness. The conceptof responsiveness, which applies to bids submitted informally advertised procurements, is not directly ap-plicable to negotiated procurements. Computer NetworkCorporation; Tymshare, Inc., B-186858, January 14, 1977,77-1 CPD 31. Fgdral Procurement Regulations (FPR)§ l-3.R05-l(a) (1964 ed. amend. 52) provides that afterreceipt of initial proposals discussions shall be con-ducted with all responsible offerors who submitted pro-posals within a competitive range, price and "otherfactors" considered. We have held that the term "otherfactors" includes the technical acceptability of proposals.See TM Systems, Inc., B-187%7, January 26, 1977, 77-1CPD 61.

It is not the function of our Office to makedeterminations as to the acceptability or relativemerits of technical proposals. Instead, we willexamine the record of each procurement to determinewhether the judgment of the contracting agency wasclearly without a reasonable basis. See Joseph LegatArchitects, B-187160, December 13, 19774 77-2 CPD 458,and cases cited therein. Unless such a finding is madeby us, or there is an abuse of discretion, or a violationof procurement statutes or regulations, the contracting

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agency's judgment will not be disturbed. StruthersElectronics Corporation, B-186002 September 10, 1976,76-2 CPD 231. Otherwise, the contracting agency mustbear the burden of any difficulties resulting from adefective evaluation. Macmillian Oil Company, B-189725,January .17, 197 78-1 CPD 37.

From our review of the record, we are unable to con-clude that the EPA's determination that ERCO's proposalwas technically acceptable was unreasonable or a viola-tion of applicable statutes or regulations. The EPAfound that ERCO satisfied the overall technical guide-line in the RFP that the offered mobile pyrolysis systembe based on existing, proven, and previously developedtechnology. Based upon its experience with ERCO's systemunder a prior contract and based on the extensive researchthat had been done with fluidized beds in the combustionand coal gasification areas, the EPA determined thatERCO's fluidized bed reactor was not research. Further-more, there were extensive reviews by various chemical,mechanical, and sanitary engineers in reaching the con-clusion that ERCO satisfied all the technical objectivesof the RFP.

Despite the fact that Wismer has provided detailedtechnical arguments to support its contention that ERCO'sproposal was not based on existing, proven, previouslydeveloped technology, we are also unable to concludethat ERCO's proposal failed to comply with the terms ofparagraph 401 of the RFP's scope of work section. Thissection, we believe, makes it clear that an offeror'sexisting, proven, previously developed technology neednot have been existing, proven, previously developedmobile pyrolysis technology. Rather, this section ofthe RFP required that there be an existing, proventechnology capable of being modified to the point whereit could become a mobile pyrolysis technology. Whilethe mobile pyrolysis system proposed by ERCO was notin itself proven technology, it is quite obvious fromthe record that the fluidized bed technology upon whichit was based had been developed combustion technologyfor some time.

We recognize that the EPA relied to a certain extenton ERCO's prior work in determining that ERCO's proposalunder the RFP was technically acceptable. The EPAconcluded that the quality of the data collected by

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ERCO under this prior work "verified" the potentialuse of the fluidized bed technology in a pyrolysismode. Nevertheless, we do not believe that thisparticular use by the EPA of ERCO's prior work affectedthe validity of the determination that ERCO's proposedsystem was based on existing, proven technology. TheEPA points out that a fluidized bed combustion reactorcan easily be purchased commercially from many vendors.The prior ERCO work merely showed that oxygen could besuccessfully eliminated from the standard fluidized bedreactor in order to make it into a pyrolysis unit. Con-sequently, we agree with the EPA conclusion that thepyrolysis system proposed by ERCO was based on a proventechnology.

The Prior ERCO Work

Wismer alleges that the technology upon whichERCO's proposal was based was produced at public ex-pense. Since at the time the RFP was issued, ERCOalone had access to this technology, Wismer argues thatERCO had an unfair advantage over all other offerorsduring the course of negotiations. In order to be fair,Wismer contends that the data generated under the EPAsupported project should have been made public eitherprior to the issuance of the RFP or at least at thesame time.

The EPA states that the ultimate purpose of theERCO work was not to develop a mobile pyrolysis systembased on the fluidized bed reactor, but rather todevelop a model to predict reaction products throughthe control of certain operating parameters. The EPAdesired research on the kinetics of partial oxidationand pyrolysis reactions. EPA funds, then, were used tobuild a highly instrumented, small scale unit with whichto collect the data generated by these oxidation andpyrolysis reactions. More specifically, a fluidized bedunit was used for the data.-collection because of its"versatility." According to the EPA, the fluidized bedreactor provided a high degree of temperature/retentiontime control.

The EPA further states that the data gathered underthe prior ERCO work was not in itself relevant to theactual development of the mobile pyrolysis concept.Consequently, the EPA believes there was no need toreference any of.the results of this particular project

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in the protested RFP. With regard to the reports ofthe Georgia Tech work that were included with the REP,these reports were strictly informational so that allofferors would be cognizant of the source of theperformance criteria set forth in the RFP. Finally,the results and data from the prior ERCO work had noeffect on the EPA's evaluation of proposals under theRFP. The EPA indicates that except for the projectofficer, who was also the project officer for the ERCOwork, none of the eight-member Technical Review Panelmembers had seen the data generated under the ERCOproject.

Wismer, however, contends that where new equipmentmust be built and operated in a unique manner usingprocess materials that have not been utilized before,then research is being conducted on the total programand not merely the data'production itself. Accordingto Wismer, this means that irrespective of the intendedpurpose of the unreported, EPA supported ERCO work,actual research was involved in the development andoperation of the hardware which produced the data.Wismer argues that the difficulties ERCO encounteredin modifying the test apparatus so that it would operateproperly indicates that the ERCO work did involve con-siderable effort toward developing the test equipmentitself. Thus, Wismer challenges the EPA's assertionsto the effect that no research was involved in the testapparatus which generated the data sought by EPA.

With respect to the relevance the ERCO data had tothe protested RFP, Wismer emphasizes the fact that theEPA has indicated that the data does demonstrate theviability of the fluidized bed method of mobile pyroly-sis. Wismer states that the EPA has admitted that theERCO data verified that the fluidized bed was a viabletechnology in the same manner that the Georgia Tech dataverified that the Georgia Tech system was a viable tech-nology. Wismer argues that if the ERCO data was indeedsignificant in establishing the technical viability ofthe system itself, then in spite of EPA's denials tothe contrary, this data must have been fundamentallyimportant to the protested procurement. Wismer contendsthat it is logically impossible for the EPA to state onone hand that the ERCO data was irrelevant when on theother hand it states that the data was used to establishthe viability of the fluidized bed technology.

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Furthermore, because the EPA has acknowledged thatthe ERCO data established the viability of fluidizedbed technology for mobile pyrolysis, Wismer disputesthe EPA's statement that only one person on the eight-member Technical Review Panel had seen the ERCO data.Wismer alleges that the EPA relied on and acceptedunpublished, unverified data as the basis for makingan award under the RFP to ERCO. Wismer contends thatsuch reliance violates the specific provision in theRFP which indicated that only available, proven, pre-viously developed technology would be considered bythe contracting agency.

Finally, Wismer contends that if the Georgia Techreports and data established the viability of thattechnology for mobile pyrolysis, then the inclusion ofthese reports and data with the RFP must have been forsomething much more than merely "informational." Sinceno other reports or data were referred to in the RFP,Wismer concludes that, whether intentionally or not,the EPA did mislead the competition into believing thatthe Georgia Tech approach was favored.

ERCO argues that if Wismer is alleging that thedocumentation of its work provided the basis for theprotested RFP's performance requirements, it is quiteclear that such an allegation is erroneous because thefirst compilation of the data was not received by theEPA until September 1977. The RFP for the pyrolysissystem was released approximately 6 months earlier.ERCO therefore contends that the data it developedcould not possibly have served either as the basis forthe RFP or have provided ERCO with an unfair advantageover all other competitors.

Moreover, assuming, arguendo, that its work didplay a role in either formulation of the RFP or inthe negotiations under it, ERCO contends that thisparticular ground for protest should still be denied.Citing our decision in ENSEC Service Corp., 55 Comp.Gen. 656 (1976), 76-1 CPD 34, ERCO points outthTa'tweSave held that the Government is not required to equalizecompetition in particular circumstances, including theaward of other contracts. ERCO argues that althougha competitive advantage may exist, the real test ofthe propriety or legality of the award is whether thecompetitive advantage enjoyed by a particular offeror

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is the result of a preference or unfair action by theGovernment. See Price Waterhouse and Co., B-186779,November 15, 1976, 76-2 CPD 412.

ERCO states with regard to the protested RFP thatalthough it may have benefitted from having participatedin the earlier Government contract, such benefit did notprovide the sole basis for the award in the instant pro-curement. ERCO points to the contracting officer'smemorandum of findings, conclusions and recommendationswhich indicates that the offeror having the highesttechnical rating also offered the same mobile pyrolysisprocess as Wismer. ERCO alleges that the deciding factorin this procurement was price rather than technicalcapability, and that Wismer's price put it outsidethe competitive range.

We have consistently stated that the Government isnot required to equalize competition on a particularprocurement by considering the competitive advantageaccruing to firms because of incumbency or their ownparticular circumstances, including the award of othercontracts. See National Motors Corporation; Die-MeshCorporation; Fuel Propulsion Corporation, B-189933,June 7, 1978, 78-1 CPD 416, and the cases cited therein.Indeed, we have long recognized that certain firms mayenjoy a competitive advantage by virtue of their incum-bency or their own particular circumstances or as aresult of Federal or other public programs. See ENSECService Corporation, supra. As stated by ERCO, thetest to be applied is whether the competitive advantageenjoyed by a particular firm resulted from a preferenceor unfair action by the Government. See Telos Computing,Inc., 57 Comp. Gen. 370 (1978), 78-1 CPD 235, and thecases cited therein.

Our Office has had several cases in which allegationsof unfair competitive advantage similar to Wismer's havebeen made. In Teledyne Ryan Aeronautical, 56 Comp. Gen.635 (1977), 77-1 CPD 352, the successful offeror hadperformed a prior contract for a design study. However,we found no indication in the record that the procuringagency withheld any information from the other offerorsregarding the requirements for the item being procuredor that the proposal evaluators based their evaluationof the technical merits of the proposals on undisclosedinformation. In H. J. Hansen Company, B-181543,

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March 28, 1975, 75-1 CPD 187, the awardee had draftedplans and made a preliminary study relevant to thework to be performed under the protested solicitation.In finding no unfair competitive advantage, we emphasizedthe fact that it was incumbent upon the Government toaward the contract to the concern having the highesttechnical competence, and the fact that the Governmentmay have previously financed such competence would notjustify an award to a less qualified concern to thepossible deteriment of the Government.

Here, the EPA states that there was no need to dis-close any of the results of the prior ERCO work becausethe data from this work was not pertinent to the mobilepyrolysis concept. Further, the Georgia Tech effortwas the only prior effort that needed to be mentionedin the RFP since the performance criteria set forthin the RFP were based exclusively on the results derivedfrom the Georgia Tech effort. As to the possibilityof a preference for the Georgia Tech process, theEPA emphasizes that the RFP permitted any previouslydeveloped system to be offered that was the "equivalent[of] or better" than the Georgia Tech system. Thus,offerors were required to meet certain known per-formance criteria without being limited to any specificsystem or manufacturer.

We agree with the EPA. Where information such asperformance and cost data can be disclosed and wouldbe essential to or helpful in preparing an intelligentoffer or bid, it should be made available to all offerorsor bidders. See 49 Comp. Gen. 251 (1969). Here, however,it is clear that no performance criteria were based onthe results of the prior ERCO work. As ERCO points out,the initial compilation of the ERCO data was not receivedby the EPA until well after the protested RFP was issued.Moreover, we have stated that when the Government providesperformance specifications, as was the case here, theofferors are expected to use their own inventivenessand ingenuity in devising approaches that will meet theGovernment's performance requirements. See Auto-TrolCorporation, B-192025, September 5, 1978, 78-2 CPD 171,and the cases cited therein.

Furthermore, we find no evidence in the record thatERCO was improperly preselected for award. The RFPcontained the following technical evaluation criteria:

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Points

A. 1. Response to RFP 700

2. Comprehension of Scope 600

3. Method and Approach 500

4. Schedule and Manpower 400

5. Organization and Management 300

B. 1. Specific Experience 1000

2. Stage of Development 600

3. Company Organization Facilities 500

4. Technical Management 400

Total 5000

The record reveals that Wismer received a largenumber of the 1,600 possible technical points forspecific experience and stage of development. Also,Teknekron's score in this area was exactly the sameas Wismer's. Although ERCO received a somewhat higherscore for experience than Wismer and Teknekron, thedifference was not substantial. Moreover, ERCO didnot have the overall superior technical rating. Tech-Air, the company that developed the Georgia Tech proc-ess, received the highest technical rating and alsoreceived the largest number of technical points forprior experience as well. Consequently, we believethat the benefit that ERCO received from having per-formed the prior data collection work for the EPA hadlittle impact on the differences in technical scoresof those offerors that were in the competitive range.

Assuming, arguendo, that there was any pref-erence here, we believe that it was for the GeorgiaTech process rather than ERCO's fluidized bed. We notethat Wismer and Teknekron made proposals utilizing Tech-Air's technology. ERCO, in offering basically the samesystem it used in the prior EPA contract, emphasizedin its proposal the technical superiority of the fluid-ized bed over the Georgia Tech process. For example,

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at one point in its proposal, ERCO stated that it couldoperate its pyrolyzer at a significantly lower tempera-ture than the Georgia Tech system. According to ERCO,a lower operating temperature implied lower thermalloss, quicker startup, and less risk of generating fineparticulates. In light of the foregoing, then, we can-not conclude that there was any demonstrated preferenceby the EPA for the ERCO fluidized bed system.

With regard to the fact that the EPA acknowledgesthat the ERCO data under the prior contract did estab-lish the viability of fluidized bed technology, we be-lieve that Wismer has taken the EPA statements out ofthe context in which they were made. The EPA statesthat the technical acceptability was based solely onwhat was contained in each proposal. Moreover, fromour review of the record, we find nothing to indicatethat the EPA gave ERCO technical points simply for thedata it generated under the prior contract. In theevaluation of ERCO's proposal, the EPA noted that theproposal contained a detailed step-by-step approachto satisfying the RFP objectives. Also, the EPA's pro-posal reviewers were favorably impressed with ERCO'sproposal management system. The previous work listedby ERCO in its proposal showed experience in the design,fabrication, and evaluation of systems more complexthan that required by the RFP. Finally, the EPA con-cluded that based on the information provided in ERCO'sproposal, there was no doubt that the combination ofcompanies proposed was qualified to undertake all thephases of work outlined in the RFP.

Basically, it appears that the ERCO data was usedby the EPA as incidental support for its overall con-clusion that the fluidized bed technology would beviable in a pyrolysis mode. The EPA states that thisdata verified that the fluidized bed was a viabletechnology in the same general manner that the GeorgiaTech data verified that the technologies proposed byWismer and Teknekron were viable technologies. However,regardless of this overall verification of the fluidizedbed for a pyrolysis mode, the record reveals that theEPA considered the fluidized bed to be a "proven" tech-nology. Consequently, we conclude that the data gen-erated by ERCO under the prior EPA did not affect thetechnical review of ERCO's proposal for the purposeof assigning technical points in accordance with theRFP's evaluation criteria.

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In reaching the above conclusion, we do note thatone of the technical reviewers here had been the projectofficer for the prior ERCO contract and had seen at thetime the RFP proposals were being evaluated the ERCOdata. The record, however, does not reveal that thisevaluator had any impact on the other evaluators. Thus,we have no basis to conclude that there was any improperinfluence in the evaluation process. See Macmillan OilCompany, supra. As to the evaluator himself, there isno indication that his knowledge of the ERCO data re-sulted in any bias in favor of ERCO. The EPA emphasizesthat the ERCO data did not affect any proposal reviewand that technical acceptability was based only on whatwas in the proposals.

In the final analysis, Wismer was eliminated fromthe competition because of cost considerations. All ofthe technical evaluators found ERCO, Wismer, Teknekronand Tech-Air technically acceptable. Tech-Air waseliminated from the competitive range because of itsextremely high cost proposal. The levels of effort ofERCO, Wismer, and Teknekron were essentially equivalent,although Wismer was rated somewhat lower technically.Consequently, the EPA's final selection was based on the"best buy" for the Government.

Cost cannot be ignored by an agency in any contractorselection process. See Westinghouse Electric Corporation,57 Comp. Gen. 328 (1978), 78-1 CPD 181, and the casescited therein. Further, we have held that where techni-cal proposals are determined by the agency to be essen-tially equal, price or cost properly becomes the deter-minative factor in making an award. -See SEMCOR, B-188807,November 28, 1977, 77-2 CPD 413. The record indicatesthat Wismer's final cost estimate was significantlyhigher than the $1,275,427 at which a contract wasawarded to ERCO. In view of the closeness of the tech-nical evaluations, we conclude then that the EPA wasreasonable in differentiating among the competitors onthe basis of cost.

The RFP's Performance Specifications

Wismer alleges that the offerors under the RFPwere not informed of the "true needs" of the Government.

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According to Wismer, the offerors were misled by theterms of the RFP so that they submitted proposals basedon an existing, proven, previously developed technologyrequirement. The EPA, however, awarded a contract toa company which submitted a proposal that contained new,unpublished research technology. Consequently, Wismercontends that the EPA obviously overstated its actualneeds and, as a result, the offerors were required tosubmit proposals under much more restrictive criteriathan was actually necessary. The offerors did not havethe opportunity to bid on a system other than one basedon existing, proven, previously developed technology.

The EPA asserts that the RFP very clearly definedits needs and requirements. The words "existing sta-tionary technology" in the RFP were intended to elimi-nate "idea" technologies only. Pilot or reduced-to-actual-practice technologies were permitted. The EPAfurther argues that if Wismer's definition of existingstationary technology had been adopted during the eval-uation of proposals, Wismer would also have been elimi-nated from consideration. The EPA states that Wismerproposed an untried modification to the Georgia Techsystem. This untried modification involved using a com-pletely different char discharge system than that usedin the Georgia Tech system itself. The EPA points outthat only Tech-Air had an actual reduced-to-practicemobile pyrolysis technology. Therefore, Tech-Air'sproposal had the most proven technology known to theEPA for meeting the RFP's performance criteria.

In reply to the EPA's arguments Wismer alleges thatthe EPA has misconstrued its position. Wismer statesthat it is not contending that the range of acceptabletechnologies was restricted but, instead, that the levelof acceptable technologies was restricted. Wismer arguesthat the EPA demonstrated that it had overstated itsneeds in the specifications by requiring all competitorsto submit proposals based on existing, proven, previouslydeveloped technology when an award was ultimately madeto a company heavily involved in new, unpublished re-search. Furthermore, Wismer contends that the EPA hasin effect admitted that its specifications were over-restrictive. In Wismer's opinion, the EPA statement

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that the requirement for existing, stationary technologywas to eliminate proposers submitting only paper ideasreveals, when compared with the actual RFP language, avery wide disparity in meaning. Wismer argues that theterms "existing, proven, previously developed technology"are very explicit and much more restrictive than theEPA intention to preclude proposals based on systemswhich had not advanced beyond the conceptual stage.

ERCO contends that neither the record of theprotested procurement nor the material offered by Wismergives any indication that the specifications of the RFPunduly restricted competition. ERCO refers to our deci-sions holding that the specifications of the contractingagency will not be questioned unless the protester showsby clear and convincing evidence that the specificationswould by unduly restricting competition be a violationof law. In specific, ERCO cites the following languagefrom our decision in The Ellis Company, B-189937, B-189390,January 27, 1978, 78-1 CPD 70:

"The responsibility for draftingproper specifications is primarily theresponsibility of the contracting agency.Jarrell-Ash Division of the FisherScientific Company, B-185582, January 12,1977, 77-1 CPD 19; Maremont Corporation,55 Comp. Gen. 1362 (1976), 76-2 CPD 181.It is proper for a contracting agency toestablish specifications reflective ofits legitimate needs based on its actualexperience, engineering analysis, logic,or similar rational basis. BowersReporting Company, B-187512, August 10,1976, 76-1 CPD 144. Though specifica-tions should be drawn so as to maximizecompetition, we will not substitute ourjudgment for that of the contractingagency unless the protester shows byclear and convincing evidence that acontract awarded on the basis of suchspecifications would by unduly restrict-ing competition be a violation of law.Joe R. Stafford, B-184822, November 18,1975, 75-2 CPD 324; Globe Air, Inc.,B-183396, June 26, 1975, 75-1 CPD 389."

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We agree that the drafting of specifications tomeet the Government's minimum needs is properly thefunction of the procuring agency. See also 50 Comp.Gen. 193, 199 (1970). However, where the issue ofwhether the RFP specifications overstated the EPA'sminimum needs centers around the interpretation ofparagraph 401 of the scope of work section, a resolutionof this particular issue requires, in the event anambiguity exists, a determination by our Office as towhether the EPA's interpretation of this paragraph isreasonable. See Air, Inc., B-191665, September 11, 1978,78-2 CPD 185.

We believe that the crux of Wismer's protest isthat the RFP requirement for a previously developedtechnology was worded in such a manner as to misleadthe competition into thinking that only a technologyas proven as the Georgia Tech technology was acceptable.Wismer, in interpreting the RFP, contends that the EPArestricted the technologies that could be offered to acertain level. Wismer argues that in order for any tech-nology to reach the level of being existing, stationary,previously developed technology, the technology mustfirst be in the public domain where it can be subjectto independent technical review. Consequently, thereis an enormous difference between the EPA's statedpurpose of eliminating paper ideas or laboratory scalesystems and the language of the RFP.

Looking at the RFP as a whole, we are unable toconclude with regard to the Georgia Tech technologyitself that only that technology or modifications of itwould be acceptable. Paragraph 100 of the scope of worksection stated that the contractor was to design, fabri-cate, and field test a mobile pyrolysis system capable ofmeeting or exceeding the criteria established by theprevious work done at Georgia Tech. Paragraph 300 ofthis section set forth specific performance criteriathat any offered mobile pyrolysis unit had to meet.

With regard to the technical level of a unit meetingthe RFP performance criteria, we believe that no ambiguityexists as to the meaning of paragraph 401 because Wismer'sinterpretation of the requirement for existing, proven,previously developed technology is inconsistent with theactual language of this paragraph. Wismer has emphasizedthe second sentence of this paragraph which states that

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the offered unit shall be based on previously developedand proven technology and shall not include any new re-search work. The word "based," however, refers to thepreceding sentence which provides that the design phaseof the contract consists of taking an existing, stationarytechnology and modifying it to the point that it will meetthe performance criteria for the mobile pyrolysis concept.Taking these two sentences together, then, it becomes clearthat the prohibition against new research work directlyrefers to the offeror's original technology before modifi-cation to a mobile pyrolysis mode. Thus, ERCO's fluidizedbed system met the foregoing requirement since the fluid-ized bed itself had been an established combustion tech-nology for some period of time.

Accordingly, the protest is denied.

Deputy Comptroller Gener'alof the United States