HHI Corporation

HHI Corporation BNUMBER: B-266041; B-266041.2 DATE: January 25, 1996 TITLE: HHI Corporation ********************************************************************** Matter of:HHI Corporation File: B-266041; B-266041.2 Date: January 25, 1996 Jack W. Reed, Esq., Peterson, Reed, L.L.C., for the protester. Vera Meza, Esq., Department of the Army, for the agency. Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest that agency improperly relaxed requirements--(1) that offered demisters have emissions certification at time of proposal submission, and (2) that manufacturer has had demisters of similar capacity in operation for 5 years--by accepting for award a demister that does not meet these requirements, is denied where protester has not established competitive prejudice as a result of the waiver. DECISION HHI Corporation protests the award of a contract to D.L. McLaughlin Co., Inc., under request for proposals (RFP) No. DAAC01-95-R-0015, issued by the Department of the Army for the repair of two chrome line ventilation systems. HHI asserts that McLaughlin's offered system did not meet the material requirements of the solicitation. We deny the protest. Offerors were required to supply two demisters, one with a capacity of 22,500 cubic feet per minute (cfm) and a second with a capacity of 56,000 cfm. After receiving and evaluating best and final offers, the Army awarded the contract to McLaughlin as the lowest-priced, technically acceptable offeror. (McLaughlin's price was $866,231; HHI's was $973,343.) The solicitation required offerors to furnish with their offers technical literature to show that the demister used for the ventilation system and all component parts met or exceeded specified federal and California state emission standards. The solicitation further stated that proof of compliance was either the label or listing of the Environmental Protection Agency or cognizant California agency, or a written certificate from any approved, nationally recognized testing organization. The solicitation also required offerors to submit proof that demisters of capacity similar to that specified in the RFP had been installed by the manufacturer or its representative, and had been in satisfactory use for at least 5 years prior to the proposal closing date. McLaughlin offered demisters manufactured by KCH Services, Inc. HHI maintains that McLaughlin did not submit proof that the KCH demisters met the emission standards or that there were KCH demisters with a 56,000 cfm capacity that had been installed for 5 years.[1] HHI concludes that the Army improperly waived material requirements in awarding the contract to McLaughlin, and that the award therefore was improper. In response, the Army states that, while McLaughlin did not furnish the proof of compliance with the emission standards with its proposal, the firm will be required to supply this proof of compliance at the time of delivery. The Army further states that McLaughlin has submitted information showing that KCH chrome mist eliminator systems with capacities of 120,000 cfms and 80,917 cfms had been installed for Aviall Incorporated and National Hand Tool, respectively, at least 5 years ago. It appears that McLaughlin's system did not meet the two requirements. McLaughlin has not submitted the required proof of compliance with emission standards, and the agency's decision to permit McLaughlin to comply at the time of delivery constitutes a relaxation of the requirement. Similarly, while the overall systems installed at Aviall and National Hand Tool are 120,000 and 80,917 cfm, it appears that none of the individual demisters installed at Aviall has a capacity greater than 20,000 cfm, and that none of the demisters installed at National Hand Tool has a capacity greater than 25,000 cfm. In this regard, despite being given the opportunity to do so, neither the Army, KCH, nor McLaughlin has disputed HHI's argument along these lines and, following a conference call with representatives of our Office, the protester, the agency, the awardee, and KCH, KCH acknowledged that the Aviall and National Hand Tool projects are comprised of a number of demisters of varying capacity, none of which has a capacity of 56,000 cfm.