TITLE: B-299901.2, Safety Storage, Inc., December 3, 2007
BNUMBER: B-299901.2
DATE: December 3, 2007
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B-299901.2, Safety Storage, Inc., December 3, 2007

   Decision

   Matter of: Safety Storage, Inc.

   File: B-299901.2

   Date: December 3, 2007

   Kenneth Wilkins, Safety Storage, Inc., for the protester.

   Kristen Scibuola, for Containment Consultants, Inc., an intervenor.

   Daniel K. Poling, Esq., and Gwendolyn Hoover, Esq., Defense Logistics
   Agency, for the agency.

   Linda C. Glass, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest alleging awardee's noncompliance with mandatory technical
   requirements is denied where the record shows that the awardee's proposal
   was reasonably evaluated by the agency as meeting the requirements.

   DECISION

   Safety Storage, Inc. protests the award of a contract to Containment
   Consultants, Inc., d.b.a. Ideal Environmental Products (Ideal) under
   request for proposals (RFP) No. SB3100-7071-9501, issued by the Defense
   Logistic Agency for a modular pest control building. Safety contends that
   Ideal's proposed pest control building does not comply with the RFP's
   specifications.

   We deny the protest.

   The RFP was issued on September 5, 2007 as a combined
   synopsis/solicitation for commercial items in accordance with Federal
   Acquisition Regulation (FAR) part 12.6.[1] The RFP was issued as a total
   small business set-aside and set forth the minimum requirements for the
   pest control building. Two of the requirements relevant to this protest
   are that: (1) the modular storage building must be approved by the Factory
   Mutual (FM) System as a relocatable hazardous materials storage unit in
   accordance with Flammable and Combustible Liquid Storage Building Standard
   6049 (RFP at 2); and (2) the building must include a floor
   grating/secondary containment sump system with "a seamless acid/corrosive
   resistant high density polyethylene liner" (RFP at 3).

   The RFP provided for the evaluation of only two non-cost factors:
   technical capability and past performance. RFP at 4. Offerors were advised
   that technical capability would be evaluated on a go/no-go basis, and that
   those offerors whose proposals are found technically acceptable, would be
   reviewed to determine whether the offeror has a satisfactory record of
   past performance. Offerors were required to submit descriptive literature
   and other information that clearly indicated that the proposed pest
   control building satisfied all of the stated minimum technical
   requirements. Id. Award was to be made to the lowest priced, technically
   acceptable offer.

   Only Safety and Ideal submitted proposals in response to the RFP, and
   based on an initial review, the agency concluded that neither proposal was
   acceptable; instead, the agency decided that both proposals were
   "susceptible of being acceptable." Agency Report (AR) Tab 5, Pest Control
   Proposals Evaluation. In this regard, the technical evaluator noted five
   deficiencies in Safety's proposal and one deficiency in Ideal's proposal.

   Discussions were held with both offerors so that the agency could
   identify, and the offerors could address, the evaluated deficiencies in
   their proposals. Of relevance here, Ideal's technical proposal was found
   unacceptable because Ideal did not clearly demonstrate that its offered
   spray-on liner met the criteria of the seamless acid/corrosive resistant
   high-density polyethylene liner required by the specification. In response
   to the agency's concerns, Ideal addressed the matter as follows:

     Ideal Environmental has several spray on coatings which are seamless and
     provide excellent acid/corrosive resistance. If awarded the contract we
     will offer the end user several options to choose from. These coatings
     are not susceptible to cracking and damage from rodents and are easier
     to clean. However if the end user requires a seamless acid/corrosive
     resistant high density polyethylene (HDPE) liner one will be provided
     per the minimum technical requirements stated in the combined
     synopsis/solicitation at no additional cost.

   AR, Tab 8, Ideal's Final Proposal Revision.

   After the evaluation of the offeror's final revised proposals, both Safety
   and Ideal received ratings of "go" for both technical capability and past
   performance. Safety proposed a price of $225,840.46 and Ideal's price was
   $206,000. Since Ideal offered the lowest price, award was made to Ideal on
   September 27. Safety filed this protest with our Office on October 5,
   2007.

   Safety contends that Ideal's proposal should have been rejected as
   technically unacceptable because Ideal offered a coating that was not a
   high-density polyethylene sump liner and because Ideal is not an FM
   approved manufacturer as required by the RFP.[2]

   Our Office reviews challenges to an agency's evaluation of proposals only
   to determine whether the agency acted reasonably and in accord with the
   solicitation's evaluation criteria and applicable procurement statutes and
   regulations. Marine Animal Prods. Int'l, Inc., B-247150.2, July 13, 1992,
   92-2 CPD para. 16 at 5. A protester's mere disagreement with the agency's
   judgment is not sufficient to establish that an agency acted unreasonably.
   Entz Aerodyne, Inc., B-293531, Mar. 9, 2004 CPD para. 70
   at 3.

   With respect to its allegation that Ideal will not provide a pest control
   building with the required high-density polyethylene liner, Safety is
   factually incorrect. As explained above, Ideal, in response to the
   agency's concerns during discussions, specifically stated in its final
   revised proposal that it would comply with the government's requirement
   for a polyethylene liner at no additional cost.

   With respect to FM approval, the RFP required the pest control building to
   be an FM "approved and labeled relocatable hazardous materials storage
   unit in accordance with Flammable and Combustible Liquid Storage Building
   Standard 6049." RFP at 2. The RFP specified that the FM certification
   documentation for the building must be submitted to the government in
   conjunction with drawings/details submission in order to receive
   government approval of drawings; these drawings were not required to be
   submitted until 30 days after award. RFP at 4.

   Our review shows that Ideal did not take exception to the requirement that
   its pest control building be FM approved and labeled, or to the
   requirement that documentation of FM approval was to be provided with the
   detailed drawings to be supplied 30 days after award. In addition, Ideal
   has provided a copy of a May 22, 2007 letter from FM Approvals detailing
   the negotiations between Ideal and FM that should lead to an approval
   decision. As a result, we have no basis to conclude that Ideal did not
   meet the solicitation requirements in this area. Whether Ideal completes
   the approval process in time to comply with its contractual obligation to
   provide evidence of FM approval within 30 days of award is a matter of
   contract administration over which we generally do not exercise bid
   protest jurisdiction; issues of contract administration are within the
   discretion of the contracting agency. Bid Protest Regulations, 4 C.F.R.
   sect. 21.5(a) (2007).

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] The requirement was initially synopsized on April 3, 2007 and an award
   was made to Ideal on June 8, 2007. Safety protested that award to our
   Office on June 20, 2007. We dismissed the protest as untimely. However,
   the agency subsequently decided to cancel the award, revise its
   specifications, and resolicit.

   [2] In its initial protest, Safety alleged that Ideal's pest control
   building failed to satisfy several additional RFP requirements that relate
   to the exhaust vent extensions, stainless steel containment shelves,
   storage tank, and floor grating supports. After review of the agency's
   report submitted in response to the protest, the protester abandoned these
   contentions.