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.  All of the 
remaining subfactors and factors would be rated "unsatisfactory," 
"needs improvement," or "satisfactory."  Offerors were required to 
receive a "satisfactory" rating, and a "pass" rating under the 
"Licenses, Permits and Certificates" subfactor, in order to be 
eligible for award.

Three offerors submitted proposals for Regions 1, 4, and 10.  After an 
initial evaluation, the Army conducted discussions and requested and 
received best and final offers (BAFO).  ChemFree offered to provide an 
equivalent application in the form of an aqueous-based, bioremediation 
technology which does not utilize hazardous solvents.  The firm 
proposed to utilize this technology in all of the required circulating 
parts, cleaners, and adjustable level parts cleaners.  For all of the 
immersion cleaners, spray and paint gun cleaners, and government-owned 
parts cleaners, ChemFree proposed to utilize the traditional 
solvent-based cleaners to be wholly serviced by subcontractors.  The 
Army determined that ChemFree's technology was an equivalent 
application, and that the firm had submitted the lowest-priced, 
technically acceptable offer for these three regions.  ChemFree was 
awarded the contract at an estimated value of $3,936,022, on June 20, 
1996.  Safety-Kleen's offer was also technically acceptable, but its 
price was $700,000 higher than ChemFree's price.[1]

One month later, the Army's Mobility Technology Center (MTC), the 
PD-680 specification preparing activity, notified the contracting 
activity that it did not consider ChemFree's offered product to be a 
PD-680 replacement.  The contracting activity subsequently received 
letters from several installations to be covered under ChemFree's 
contract expressing their concerns about the firm's product.  Of 
particular relevance here, the Aviation and Troop Command stated that 
it would not use ChemFree's product because it was not approved for 
aviation maintenance use.

By letter to ChemFree dated August 6, the contracting officer directed 
the firm to "satisfy the requirement with PD-680, type II, or 
equivalent solvent at all aviation maintenance activities through-out 
the FORSCOM installations.  These procedures shall be in effect until 
the approval of the ChemFree fluid for use on aircraft parts is 
demonstrated."  

Safety-Kleen filed its initial protest on August 16, primarily arguing 
that the direction in this letter constituted an impermissible 
out-of-scope change to ChemFree's contract.  After receiving the 
agency report on the initial protest, Safety-Kleen filed a 
supplemental protest in which it argued that the Army should have 
found ChemFree's proposal technically unacceptable since the firm did 
not submit EIL insurance certificates for its transportation 
subcontractors.[2] 

DISCUSSION

Alleged Out-of-Scope Contract Modification

As a general rule, our Office will not consider protests challenging 
contract modifications, as they involve matters of contract 
administration that are the responsibility of the contracting agency.  
Bid Protest Regulations, section 21.5(a), 61 Fed. Reg. 39039, 39045 
(1996) (to be codified at 4 C.F.R.  sec.  21.5(a)); American Air Filter 
Co., Inc., 57 Comp. Gen. 285 (1978), 78-1 CPD  para.  136; Central Texas 
College Sys., B-215172, Feb. 7, 1985, 85-1 CPD  para.  153.  One exception 
to this rule exists where, as here, it is alleged that a contract 
modification improperly exceeds the scope of the contract and 
therefore should have been the subject of a new procurement.  Neil R. 
Gross & Co., Inc., 69 Comp. Gen. 292 (1990), 90-1 CPD  para.  212; Everpure, 
Inc., B-226395.4, Oct. 10, 1990, 90-2 CPD  para.  275.  In determining 
whether a modification improperly exceeds the scope of the contract, 
we consider whether there is a material difference between the 
modified contract and the contract originally competed.  CAD Language 
Sys., Inc., 68 Comp. Gen. 376 (1989), 89-1 CPD  para.  364; Clean Giant, 
Inc., B-229885, Mar. 17, 1988, 88-1 CPD  para.  281.  The materiality of a 
modification is determined by examining factors such as whether the 
nature and purpose of the contract has been altered by the 
modification, Clean Giant, Inc., supra, the magnitude of the change in 
relation to the overall effort, CAD Language Sys., Inc., supra, and 
whether the field of competition would be materially changed by the 
contract modification.  Rolm Corp., B-218949, Aug. 22, 1985, 85-2 CPD  para.  
212.  
The Army states that ChemFree has provided 1,054 parts cleaners to the 
FORSCOM facilities covered by its contract.[3]  As noted above, 
ChemFree proposed to utilize bioremediation technology for all 
circulating parts cleaners and adjustable level parts cleaners, and to 
use solvent-based technology for all remaining parts cleaners.  
Pursuant to the contracting officer's August 6 direction, however, 
ChemFree has provided 84 solvent-based technology circulating parts 
cleaners in the place of its proposed bioremediation technology 
circulating parts cleaners.  As Safety-Kleen points out, since 
ChemFree did not offer to provide any solvent-based circulating parts 
cleaners or associated maintenance/servicing, the firm's provision of 
such cleaners and servicing is a change.  

Our review of the record shows that this change is not material.  The 
substitution does not alter the fundamental purpose of the 
contract--to provide parts cleaner recycling services.  Further, while 
ChemFree did not propose to utilize solvent-based technology for its 
circulating parts cleaners, the firm's use of solvent-based technology 
was not a change precipitated by the Army's August 6 letter.  
ChemFree's proposal clearly lays out the division of its operations 
into bioremediation and solvent-based sectors, and explains its plans 
for performing solvent-based technology functions, including the fact 
that it has subcontractors in place to provide the services associated 
with this technology.  Hence, contrary to the protester's view, this 
is not a case where the contracting agency has accepted an offer 
premised upon one approach and subsequently modified the contract to 
obtain a wholly different approach.  See Memorex Corp.--Recon., 
B-200722.2, Apr. 16, 1982, 82-1 CPD  para.  349.  

The actual change here involves substituting a small quantity of one 
type of equipment for another type of equipment, and slightly 
expanding the role of the in-place subcontractors.  This change is 
minimal when viewed in the context of the overall contract effort.  
Only 8 percent of the parts cleaners that have been provided are 
affected, and there have been no other contractual changes.  In 
particular, the pricing remains the same.  Cf. American Air Filter 
Co., Inc., 57 Comp. Gen. 285 (1978), 78-1 CPD  para.  136, aff'd, 57 Comp. 
Gen. 567 (1978), 78-1 CPD  para.  443 (substitution of diesel for gasoline 
engines was a modification outside the scope of the original contract 
where it resulted in significant changes to the original contract, 
including increasing the unit price by 29 percent).  Moreover, in 
consonance with the August 6 letter, the Army asserts that this is a 
temporary change designed to satisfy user concerns while testing is 
performed on ChemFree's product.  The contracting officer states that, 
recognizing that many of the concerns likely stem from lack of 
knowledge about ChemFree's system and initial reluctance to change, 
she believes that at some point in the near future the equipment at 
issue will revert to the proposed bioremediation technology.  
 
Safety-Kleen counters that the magnitude of the change thus far is 
simply the "tip of the iceberg."  The protester contends that more 
parts cleaners will be switched over to the solvent-based technology 
since there is no guarantee that user concerns will be satisfied, and 
that a pricing adjustment is inevitable.[4]  The record does not 
support this contention, which essentially anticipates action in the 
future that might never arise.  Protests that merely anticipate 
improper agency action are speculative and premature.  See General 
Electric Canada, Inc., B-230584, June 1, 1988, 88-1 CPD  para.  512.  
Consequently, we have no basis to consider this contention at this 
time.  Id. 

Finally, there is no evidence--indeed, no allegation--that the 
competition would change as a result of the substitution resulting 
from the August 6 letter, i.e., that more firms would have entered the 
original competition if the change had been incorporated in the 
original solicitation.  See Rolm Corp., supra.  Under the 
circumstances, we have no basis to conclude that the change which 
occurred here was material.[5]

EIL Insurance Certificate Requirement

Section C.1.6.7. of the solicitation, "Spill/Environmental Impairment 
Liability (EIL) Minimum Contractor Responsibility," stated:

     "C.1.6.7.1  The Contractor's minimum environmental Impairment 
     Liability coverage shall be $5 Million per incident and $10 
     Million aggregate.  The Contractor further agrees to supply an 
     Insurance Certificate of not less than this amount with offeror's 
     proposal.

     "C.1.6.7.2  In the event a spill or ground or water pollution 
     results from contractor's transportation, storage, recycling, 
     reclaiming, re-refining or disposal of the generator's 
     contaminated solvents, the contractor agrees to pay all costs and 
     expenses to remedy that pollution or spill related clean-up in 
     excess of the aforementioned minimum Environmental Impairment 
     Liability by the utilization of their own assets."

In connection with the "Licenses, Permits and Certificates" subfactor, 
the solicitation required offerors to submit certain documentation 
with their proposals, including:  "Coverage as a minimum for $5 
million for each incident and $10 million in aggregate."  As discussed 
above, this subfactor was rated on a "pass/fail" basis, and offerors 
were required to receive a "pass" rating to be eligible for award.

Safety-Kleen argues that ChemFree's proposal should have been found 
ineligible for award since the firm did not submit EIL insurance 
certificates for the subcontractors it proposed to transport the 
hazardous waste generated by the solvent-based parts cleaners called 
for under the contract.  

The Army concedes that ChemFree did not submit such EIL insurance 
certificates, but contends that the solicitation did not require such 
certificates for the transporters of the hazardous waste.  The Army 
interprets the solicitation as requiring these certificates only for 
the treatment, storage, and disposal (TSD) facility--the recyclers.  
Since ChemFree submitted EIL certificates for its recyclers, the Army 
considers that the requirement was fully satisfied.  The Army attempts 
to buttress its position by citing to a preproposal question and 
answer on the matter.[6]  

In determining the meaning of particular solicitation provisions, the 
solicitation must be read as a whole and in a manner that gives effect 
to all of its provisions.  Tektronix, Inc., B-244958, B-244958.2, Dec. 
5, 1991, 91-2 CPD  para.  516.  Our review of the provisions in their 
entirety shows that section C.1.6.7.2 in effect defines the scope of 
the EIL insurance coverage to be provided.  That section requires the 
contractor to assume liability in excess of the required minimum EIL 
insurance coverage if a spill or pollution results from the 
contractor's "transportation, storage, recycling, reclaiming, 
re-refining or disposal" of the contaminated solvents.  The clear 
implication is that the contractor's EIL insurance must cover spills 
or pollution resulting from the performance of each of these specific 
tasks whose clean-up costs do not exceed the minimum.  As a result, 
offerors were required to submit proof that their EIL insurance 
covered all of these tasks, including transporation.  

The Army's reliance on the preproposal question and answer to argue 
that EIL insurance was not required is puzzling, as they do not 
support its interpretation.  In answer to ChemFree's question 
concerning the applicability of the various hazardous waste-related 
requirements to an offeror that would not use hazardous materials, the 
Army responded:

     ". . .  In response to permits, license, and insurance 
     requirements that are specifically required due to the fact the 
     offeror WILL handle or transport hazardous waste, then (1) the 
     TSD permit to transport hazardous material does not apply if 
     hazardous material is not transported, (2) EIL insurance to cover 
     the receiving facility of hazardous waste does not apply if the 
     offeror does not transport hazardous material to a receiving 
     facility.  In those instances that permits, licenses, and 
     insurance requirements are to cover liability for transporting 
     hazardous materials and that event does not happen, the 
     requirement would not apply." (Emphasis added.)

The inartful phrasing of this response cannot disguise the fact that 
it does not state, as the Army suggests, that the EIL insurance 
certificate requirement applies only to the receiving facility.  It 
merely states that if the offeror does not intend to transport 
hazardous materials, the EIL insurance requirement does not apply.  
Here, ChemFree did propose to transport hazardous materials, and the 
requirement does apply.

The record shows that ChemFree did not meet this requirement, the 
materiality of which is not disputed by the Army.  In negotiated 
procurements, a proposal that fails to conform to a solicitation's 
material terms and conditions should be considered unacceptable and 
may not form the basis for an award.  Martin Marietta Corp., 69 Comp. 
Gen. 214 (1990), 90-1 CPD  para.  132.  Hence, Safety-Kleen is correct that 
the agency effectively and improperly waived the requirement for 
ChemFree when it found its proposal technically acceptable and awarded 
the firm this contract.

We cannot conclude, however, that the agency's waiver of the 
requirement placed Safety-Kleen at a competitive disadvantage.  
Despite the firm's reference to the cost of EIL insurance, 
Safety-Kleen does not assert that it would not have offered this 
coverage for the transportation aspect of its operations if it had 
known that the agency did not consider it necessary.  Even if it had 
made such an assertion, there is no evidence that its dropping of such 
coverage would have afforded it sufficient savings to overcome the 
price difference here.  Nor is there anything in the record to suggest 
that additional firms would have entered the competition if the agency 
had clearly communicated its less restrictive needs to the 
marketplace.  Tektronix, Inc., supra.

We will not sustain a protest in which an agency relaxed its 
requirements for one offeror absent some evidence in the record that 
the protester was prejudiced.  HHI Corp., B-266041; B-266041.2, Jan. 
25, 1996, 96-1 CPD  para.  21; Tektronix, Inc., supra.  Here, despite its 
reference to a decision which included an extensive discussion of the 
issue of prejudice, AT&T, B-250516.3, Mar. 30, 1993, 93-1 CPD  para.  276, 
aff'd, Dept. of Energy--Recon.; Sprint Communications Co.--Recon., 
B-250516.4; B-250516.5, Aug. 20, 1993, 93-2 CPD  para.  111, Safety-Kleen 
has not even alleged that it was prejudiced in formulating its offer.  
We therefore conclude that the agency's waiver of the requirement here 
did not affect the protester's competitive position and thus provides 
no basis to disturb the award to ChemFree.  Tektronix, Inc., supra.    

The protests are denied.

Comptroller General
of the United States

1. Safety-Kleen, which offered the traditional solvent-based cleaner 
technology, had been the incumbent contractor providing these services 
to all FORSCOM installations.  The firm submitted the only proposal 
for the other seven regions, and was awarded a contract for those 
regions.  The third offeror withdrew its proposal during discussions.

2. Safety-Kleen's supplemental protest also alleged that the Army 
unreasonably found ChemFree's product to be an equivalent application.  
We summarily dismissed this basis of protest as untimely.

3. ChemFree's contract indicates that the firm is to provide a total 
of 1,169 parts cleaners to FORSCOM facilities.

4. ChemFree's pricing for its bioremediation technology is premised 
upon service once a year, but solvent-based technology requires more 
frequent servicing and, presumably, a higher price.

5. Citing our decision in KPMG Peat Marwick, LLP, B-259479.2, May 9, 
1995, 95-2 CPD  para.  13, Safety-Kleen also argues that the August 6 letter 
is evidence of improper post-BAFO discussions since it improperly 
allowed ChemFree to materially modify its proposal.  Our analysis and 
conclusion above that this change is not material applies equally 
here, and we need not consider this matter further. 

6. While the Army also argues that the EIL insurance certificate could 
not have applied to the transporters because federal law does not 
require them to carry such coverage, we are unaware of any prohibition 
on an agency's requiring more than the minimum demanded by law.