Safety-Kleen Corporation

Safety-Kleen Corporation BNUMBER: B-274176; B-274176.2 DATE: November 25, 1996 TITLE: Safety-Kleen Corporation ********************************************************************** Matter of:Safety-Kleen Corporation File: B-274176; B-274176.2 Date:November 25, 1996 Martin R. Fischer, Esq., Katherine S. Nucci, Esq., and Timothy Sullivan, Esq., Adduci, Mastriani & Schaumberg, for the protester. R. J. Frick, Esq., and Lt. Col. David S. Franke, Department of the Army, for the agency. Tania L. Calhoun, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest that contracting agency's direction to awardee concerning its performance of a contract constituted an improper out-of-scope modification of that contract is denied where the record shows that the resulting change is not a material one--the nature and purpose of the contract has not been altered; the magnitude of the change in relation to the overall effort is minimal; and there is no evidence that the field of competition would have been materially changed. 2. While in accepting the awardee's proposal, the contracting agency waived material solicitation requirement that offeror submit insurance certificate covering a task to be performed under the contract, General Accounting Office will not sustain protest where the agency believes that its minimum needs do not require the submission of such a certificate, and where there is no evidence that the protester has been prejudiced by the agency's waiver of the requirement. DECISION Safety-Kleen Corporation protests the alleged modification of contract No. DAKF12-96-D-0018, awarded by the Department of the Army pursuant to request for proposals (RFP) No. DAKF12-95-R-0008 to ChemFree Corporation for parts cleaner recycling services. Safety-Kleen primarily argues that the alleged modification constitutes an impermissible out-of-scope change to the contract. In a supplemental protest, Safety-Kleen argues that ChemFree's proposal failed to meet one of the solicitation's material requirements and should have been found technically unacceptable. We deny the protests. BACKGROUND Army Forces Command (FORSCOM) installations require these services for degreasing operations, maintenance projects, and related cleaning activities. The solicitation divided the contiguous United States and Puerto Rico into 10 geographic regions, each with its own set of contract line items, and contemplated the award of multiple contracts. Among those offers determined to be technically acceptable, the Army would make award to the lowest-priced offeror for each region. The solicitation's requirements concern circulating parts cleaners; wheel-mounted adjustable level parts cleaners; immersion parts cleaners; paint and spray gun cleaners; and government-owned parts cleaners. Offerors were to provide all of the equipment--save the government-owned parts cleaners--and cleaning fluid required to accomplish the solicitation's requirements. The solicitation was structured based upon the agency's experience with hazardous solvent-based cleaning systems that required the contractor to furnish the solvent fluids and to periodically service the parts cleaners by collecting the contaminated fluids, transporting them to a recycling facility, and replacing them with clean solvent. Section C.5.4.3. of the RFP stated: ". . . The [cleaning] solvent shall be capable of degreasing and decarbonizing applications for maintenance projects and related cleaning activities. The benchmark cleaning performance shall be as the performance of PD-680, Type II or equivalent. . . . "If an equivalent application is offered, it shall be specifically identified and supported by an independent analysis to verify the solvent's cleaning capability." The solicitation contained a number of other requirements related to the anticipated hazardous nature of the solvent-based cleaning systems. A provision at issue here, discussed further below, required the contractor to have minimum environmental impairment liability (EIL) insurance coverage in the amount of $5 million per incident and $10 million aggregate, and to submit an insurance certificate of not less than this amount with its proposal. Technical acceptability would be determined based upon an evaluation of each offeror's proposal under two factors, technical excellence and quality control. One technical excellence subfactor, "License, Permits, and Certificates," would be rated on a "pass/fail" basis. Under this subfactor, offerors were required to submit, among other things, the EIL insurance certificate noted above.