B-225388, DEC 24, 1986, 86-2 CPD 716

B-225388, DEC 24, 1986, 86-2 CPD 716

PROCUREMENT - COMPETITIVE NEGOTIATION - OFFERS - PRICE OMISSION - LINE ITEMS - ALLEGATION SUBSTANTIATION DIGEST: 1. ALLEGATION THAT AWARDEE FAILED TO CONSIDER A LINE ITEM IN PRICING ITS PROPOSAL IS WITHOUT MERIT WHERE AWARDEE PRICED ALL REQUIRED ITEMS AND THE LINE ITEM IN QUESTION WAS A FIXED AMOUNT WHICH WAS ADDED TO ALL OFFERORS' PRICES. PROCUREMENT - BID PROTEST - ALLEGATION SUBSTANTIATION - BURDEN OF PROOF 2. ALLEGATION THAT AWARDEE WAS AFFORDED THE OPPORTUNITY TO REVIEW THE PROTESTER'S PROPOSAL IS REGARDED AS MERE SPECULATION WHERE NO EVIDENCE IS SUBMITTED TO SUPPORT THE ALLEGATION.

ELECTRONICS IN MEDICINE, INC.:

ELECTRONICS IN MEDICINE, INC. (EIM), PROTESTS THE AWARD OF A CONTRACT TO THE GENERAL ELECTRIC CO. (GE) UNDER REQUEST FOR PROPOSALS (RFP) NO. F41800 -86-R-4160 ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR THE MAINTENANCE OF GOVERNMENT-OWNED MEDICAL EQUIPMENT. EIM ALLEGES THAT THE COMPETITION WAS NOT CONDUCTED ON AN EQUAL BASIS AND THAT GE IMPROPERLY WAS PROVIDED AN OPPORTUNITY TO REVIEW EIM'S PROPOSAL.

WE DENY THE PROTEST.

THE RFP WAS ISSUED ON JULY 16, AND THE AIR FORCE RECEIVED PROPOSALS FROM GE AND EIM BY THE AMENDED CLOSING DATE OF SEPTEMBER 2. THE AIR FORCE INITIATED DISCUSSIONS WITH BOTH GE AND EIM ON SEPTEMBER 8, AND BEST AND FINAL OFFERS (BAFOS) WERE DUE BY SEPTEMBER.

GE'S BAFO WAS EVALUATED AT AN OVERALL PRICE OF $1,799,718 AND EIM'S WAS EVALUATED AT $1,943,511. UNDER THE RFP, AWARD WAS TO BE MADE TO THE LOWEST PRICED, TECHNICALLY ACCEPTABLE OFFEROR AND, AS A RESULT, THE AIR FORCE AWARDED THE CONTRACT TO GE OCTOBER 8.

EIM ALLEGES THAT GE FAILED TO TAKE INTO ACCOUNT LINE ITEM 10 OF THE RFP IN SUBMITTING ITS OFFER. LINE ITEM 0010 WAS A FIXED $160,000 AMOUNT, TO BE ADDED TO EACH OFFEROR'S PRICE REPRESENTING REPLACEMENT PARTS FOR ITEMS 0001-0008. IN ADDITION, EIM ALLEGES THAT GE WAS PROVIDED AN OPPORTUNITY TO EXAMINE EIM'S PROPOSAL ON OR ABOUT AUGUST 22.

OUR REVIEW OF GE'S PROPOSAL SHOWS THAT GE PRICED ALL CONTRACT REQUIREMENTS, TOOK NO EXCEPTION TO ANY REQUIREMENT, AND IS THEREFORE BOUND BY THE GOVERNMENT'S ACCEPTANCE OF THE OFFER TO PERFORM IN ACCORDANCE WITH THE RFP. ELECTRONICS SYSTEMS, USA, B-224472, OCT. 8, 1986, 86-2 CPD PARA. ***. IN FACT, GE HAS SUBMITTED COMMENTS TO OUR OFFICE WHICH SHOW THAT ITS UNDERSTANDING OF THE REQUIREMENTS COINCIDES WITH WHAT THE NAVY INTENDED. TO THE EXTENT EIM IS SUGGESTING THAT THE $160,000 MAY NOT HAVE BEEN ADDED TO GE'S PRICE PROPOSAL, THE RECORD SHOWS THAT THE $160,000 IN FACT WAS ADDED TO BOTH THE PROPOSALS.

WITH RESPECT TO EIM'S ALLEGATION THAT GE WAS AFFORDED AN OPPORTUNITY TO REVIEW ITS PROPOSAL, THE AIR FORCE DENIES THAT THIS EVER OCCURRED. EIM HAS PRESENTED NO EVIDENCE TO SUPPORT ITS CLAIM AND, THEREFORE, THE ALLEGATION IS PROPERLY REGARDED AS MERE SPECULATION. PAR STEEL PRODUCTS CO., INC., B-221966.2, MAY 30, 1986, 86-1 CPD PARA. 512.

FINALLY, WE NOTE THAT EIM INDICATES THE AIR FORCE ADVISED THE FIRM THAT IT WAS NOT THE LOW BIDDER PRIOR TO AWARD AND CONTENDS THAT THIS LEAVES OPEN THE QUESTION AS TO WHETHER THERE WERE ADDITIONAL BREACHES OF CONFIDENCE. THE AIR FORCE ACKNOWLEDGES THAT IN RESPONSE TO AN EIM INQUIRY, EIM WAS ADVISED THAT IT WAS NOT THE LOW BIDDER. THIS OCCURRED AFTER THE EVALUATION WAS COMPLETED AND GE WAS DETERMINED TO BE THE LOW BIDDER BUT PRIOR TO THE TIME THAT THE ACTUAL AWARD LETTER WAS SIGNED. FAIL TO SEE, HOWEVER, HOW THIS ACTION WAS PREJUDICIAL TO EIM OR HOW IT SHOWS THAT THERE WERE OTHER IRREGULARITIES IN THE SELECTION PROCESS.

THE PROTEST IS DENIED.