B-311385, Phoebe Putney Memorial Hospital, June 19, 2008
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
1. Protest that agency purportedly performed inadequate cost realism analysis is denied where no such analysis was required because solicitation contemplated award of fixed‑price, rather than cost-reimbursement, contract and did not provide for any realism analysis.
2. Protest challenging scores assigned protester’s and awardee’s proposals under technical evaluation factors is denied where protester was not competitively prejudiced; even if protester’s proposal received maximum possible technical score and awardee’s score were reduced in accordance with protester’s allegations, awardee would remain in line for award when price scores are considered.
Phoebe Putney Memorial Hospital (PPMH) protests the award of a contract
to Sterling Medical Associates, Inc. under request for proposals (RFP) No.
VA-247-07-RP-0122, issued by the Department of Veterans Affairs (VA) for
primary care and mental health services for veterans. Phoebe asserts that VA misevaluated its and
provided for a best value award of an indefinite‑quantity/ indefinite‑delivery
fixed-price contract based on four evaluation factors (in descending order of
importance): experience and staffing
(comprised of six subfactors), coordination and continuity of care (six
subfactors), past performance (five subfactors), and price. RFP at 67.
The solicitation provided that the factors, including price, would be
numerically scored, id. at 66, and that the award would be “based on a
scoring system ….”
responded to the RFP, including PPMH and
PPMH’s proposal received 75.44 (out of 77 possible) technical
points and 8.95 points for price, for a total score of 84.39 points. Price Negotiation Memorandum (PNM) at 2.
PPMH protests that
VA failed to perform an adequate price evaluation of
This argument is without merit. As noted, the RFP contemplated the award of a
fixed-price contract. There is no
requirement that a realism analysis be performed when award of a fixed-price
contract is contemplated. McDonnell
Douglas Corp., B‑259694.2, B-259694.3,
June 16, 1995, 95-2 CPD para. 51 at 9. This
reflects the fact that it is unobjectionable for a firm to submit a below-cost
proposal for a fixed-price
contract, since fixed-price
contracts generally are not subject to adjustment during performance and the
contractor, not the agency, bears the financial risk of increases in the cost
PPMH challenges the award decision on a number of bases: (1) the award decision was improper because it was based on the point scores reported to the SSA by the SSEB, and the scoring summary on which the decision was based contains some inflated scores for Sterling--PPMH notes, for example, that while one evaluator awarded Sterling’s proposal 23 points under the experience and staffing factor, none of the scores for this factor on the summary sheet is lower than 25.25 points; (2) one member of the SSEB improperly deducted 4 points from PPMH’s technical score with no explanation; and (3) VA unreasonably failed to assign PPMH’s proposal a significant strength under the accessibility subfactor for offering radiology services at a site directly across the street from its primary care center (Sterling, in contrast, offered to perform the services two miles away from its primary care center).
We will not
sustain a protest unless the protester demonstrates a reasonable possibility
that it was prejudiced by the agency’s actions, that is, unless the protester
demonstrates that, but for the agency’s actions, it would have had a
substantial chance of receiving the award.
As noted above,
the RFP provided that the evaluation factors would be point scored and that the
award decision would be based on the scoring system. Consistent with the RFP, in making the award
decision, the SSA combined the technical and point scores to determine the
awardee (although the record shows that she also considered the substantive
differences among the technical proposals of the three offerors, PNM adden. at
1). PNM at 2; PNM adden. at 3. As noted above, PPMH had an overall score of
84.39 based on technical and price scores of 75.44 and 8.95, respectively, while
Under the accessibility
subfactor (under the coordination and continuity of care factor), the RFP
indicated that the agency would conduct a site visit to evaluate accessibility. PPMH complains that the VA did not conduct a
site visit of
Again, where there
is no basis for finding competitive prejudice to the protester, we will not
sustain a protest challenging the waiver of a solicitation requirement. United Def. LP, B-286925 et al.,
PPMH suffered no
prejudice as a result of VA’s decision to waive the site visit. VA waived the requirement for all offerors,
including PPMH, and PPMH does not argue, and there is no reason to believe, that
it could have altered its proposal to its competitive advantage if it had known
of the waiver. We also note that the
record supports the agency’s position that it had sufficient information to
evaluate accessibility without the site visits.
In this regard, while PPMH speculates that the agency may have
The protest is denied.
Gary L. Kepplinger
 PPMH asserts that, while the agency purportedly based the award decision on price because the proposals were judged to be technically equal, in fact, the SSEB determined that the proposals were technically acceptable, not that they were equal. However, the record shows that, while the SSEB referred to the proposals as technically acceptable, the SSA determined that the proposals were technically equal based on her review of the proposals’ substantive differences and the point scores.
PPMH argues that the evaluation was
unreasonable because different evaluators assigned proposals different scores under
the same factor. This argument is
without merit. There is nothing unusual
or improper in evaluators reaching different conclusions and assigning
different scores when evaluating a proposal, since both subjective and
objective judgments are involved. The
mere presence of such apparent inconsistencies does not give rise to a valid
protest basis. See Novel
Pharmaceutical, Inc., B-255374,
In the comments filed on April 18 in response to the agency report, the
protester argued for the first time that the agency improperly failed to assign
its proposal significant strengths for five additional elements of its
proposal. However, PPMH knew from its
March 13 debriefing the strengths assigned to its proposal. Accordingly, these challenges to the
evaluation, filed more than 10 days after the debriefing, are untimely. See Bid Protest Regulations, 4 C.F.R.
sect. 21.2(a)(2) (2008); Sealift, Inc., B-298588,
VA acknowledges that there are in fact some discrepancies between the point
scores listed on the individual evaluators’ score sheets and the summary score
sheet. We have recomputed