Poly-Pacific Technologies, Inc., B-296029, June 1, 2005

B-296029 Jun 01, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Poly-Pacific Technologies, Inc. protests the modification of contract No. F09650-02-D-0005 awarded to U.S. Technology Corporation (UST) by the Department of the Air Force for the lease and the recycling of acrylic plastic media. Poly-Pacific argues that the agency improperly relaxed the performance requirements in the contract beyond what was reasonably contemplated by the underlying solicitation. We sustain the protest. View Decision B-296029, Poly-Pacific Technologies, Inc., June 1, 2005 Decision Matter of: Poly-Pacific Technologies, Inc. File: B-296029 Date: June 1, 2005 Ron Ward for the protester. Bradley S. Adams, Esq., and Eric Kattner, Department of the Air Force, for the agency. Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging agency's modification of a contract is sustained where modification improperly changed the scope of work anticipated by the underlying solicitation. DECISION Poly-Pacific Technologies, Inc. protests the modification of contract No. F09650-02-D-0005 awarded to U.S. Technology Corporation (UST) by the Department of the Air Force for the lease and the recycling of acrylic plastic media. Poly-Pacific argues that the agency improperly relaxed the performance requirements in the contract beyond what was reasonably contemplated by the underlying solicitation. We sustain the protest. BACKGROUND The underlying request for proposals (RFP), No. F09650-02-R-0007, was issued on February 28, 2002 and anticipated the award of a fixed-price, indefinite-delivery, indefinite-quantity contract for a 1-year base period with up to four 1-year option periods. The RFP sought proposals to lease "Type V acrylic plastic media" to Robins Air Force Base for use as an abrasive in the removal of organic and other coatings from aircraft, components, and equipment. Statement of Work (SOW) at 1. After the plastic media is used as an abrasive and is no longer usable for that purpose, it is deemed "spent blast media" (SBM). At this point in its lifecycle, the SBM is intermixed with paint chips, organic compounds, and heavy metals as a result of its use as an abrasive. U.S. Environmental Protection Agency (EPA) regulations treat the SBM as a "solid waste" that must be disposed of using approved methods. See 40 C.F.R. 264.1 (2005); see also Resource Conservation and Recovery Act, 42 U.S.C. 6901-6939e (2000). EPA regulations also provide, however, that the SBM may be excluded from the definition of solid waste if the SBM is recycled according to approved criteria, thereby avoiding the need to follow disposal procedures. See 40 C.F.R. 261.2. The RFP required offerors to propose a means of removing the SBM from the agency's worksites and recycling it consistent with EPA regulations. SOW attach. 1. During the course of the contract, the contractor retains legal title to the plastic media, including liability for handling and proper recycling of the resulting SBM. SOW at 1. Poly-Pacific did not submit a proposal in response to the RFP, as it was not on the list of qualified providers of type V plastic media at the time proposals were due. Poly-Pacific has subsequently become an approved source to provide type V plastic media, as well as other types of plastic media. Agency Supplemental Responses, May 5, 2005, 1. [1] The agency awarded the contract to UST on April 23, 2002. The agency became aware of an investigation of UST by EPA in late 2002 regarding the alleged improper disposal of the SBM by UST's subcontractor. AR, Tab 7, Letter from Poly-Pacific to Agency, Dec. 23, 2004, exh. 1, Nov. 15, 2002 News Article. [2] As a result of the investigation, the agency issued modification No. P0003 to the UST contract on May 27, 2003. The modification stated that UST was still required to provide type V plastic media, but amended the contract to allow the agency to either return the SBM to UST for recycling, or to order disposal of the SBM in lieu of recycling. AR, Tab 6, Contract Modification No. P0003, at 2. The disposal of the SBM would either be done by UST at the agency's direction, or it could be sent to a third party for disposal; in either case, the modification held UST responsible for the additional costs of disposal. Id. The contract costs were not otherwise changed by the modification, i.e. UST's price for leasing the plastic media remained the same, and the period of performance was not changed. Poly-Pacific became aware of the modification in February 2005, and filed this protest.