[Protest of Contract Award Under Corps of Engineers IFB]

B-212033: Dec 13, 1983

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A firm protested an Army Corps of Engineers contract award under an invitation for bids (IFB) for the construction of a wall to isolate hazardous wastes at a landfill waste site. The protester alleged that the Corps arbitrarily excluded the method of construction which it proposed. Since the project was being funded under the Comprehensive Environmental Response, Compensation, and Liability Act, the project had to comply with certain procedures established by the Environmental Protection Agency's (EPA) National Contingency Plan. After reviewing studies of the project, an EPA consultant recommended the method to be used in the wall construction. The protester stated that the Corps had no authority to exclude the method it proposed from the specifications, because its decision relied on a report that had not been issued at the time of the EPA study. Because it found that the Corps could reasonably rely on EPA concurrence in issuing the specifications, GAO determined that: (1) the joint agency actions did not violate the requirements of the plan; (2) the EPA plan specifically provided that the project could be modified based on later findings; and (3) the agencies were free to choose the method that would provide adequate protection to the environment rather than the lowest cost plan. GAO found that the Corps' explanation of the restriction was reasonably related to the agency's minimum needs and, therefore, dismissed the protest that the elimination of the protester's construction method unduly restricted competition. In addition, the protester failed to show that the Corps' technical judgment was arbitrary. Finally, GAO could not conclude that the Corps should have stated the specifications in terms of performance characteristics rather than in terms of design requirements. Since the protester failed to show that the specifications were unreasonable, the protest was denied.

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