B-245678, Dec 16, 1991

B-245678, Dec 16, 1991

DIGEST: 1. Protest against alleged defect in solicitation that is corrected by agency after protest is academic. 2. GAO will not consider contention raised in final comments that requirement for list of parts suppliers would not provide evidence of parts availability, since it should have been raised in initial protest. 3. Air Force reasonably determined that it required a single maintenance contractor for CT scanner, a complex piece of medical diagnostic equipment, who would have access to and be able to support the scanner software as well as the hardware, including upgrades.

Attorneys

MEDIQ Equipment and Maintenance Services, Inc.:

MEDIQ Equipment and Maintenance Services, Inc., protests certain requirements in request for proposals (RFP) No. F33601-91-R-9108 issued by the Department of the Air Force. The RFP is for the maintenance of a CT scanner system at the Air Force Medical Center, Wright-Patterson Air Force Base, Ohio. MEDIQ asserts that the RFP unduly restricts competition, and contests some of its informational requirements.

We dismiss the protest in part and deny it in part.

A CT scanner is a diagnostic system intended to produce cross sectional images of the body through computer reconstruction of X-ray transmission data from the same axial plane taken at different angles. /1/ In effect, a CT scanner uses a computer to reconstruct pictures of "slices" of a patient from X-rays taken at various angles around the patient's body. The Medical Center acquired a General Electric Corporation (GE) Model CT 9800 scanner in 1986. GE provided the maintenance for the scanner from 1986 through most of 1990, initially through the factory warranty and, after expiration of the warranty, through a noncompetitive contract awarded by the Air Force to GE Medical Services.

The Air Force decided to compete the maintenance for fiscal year 1991; MEDIQ won this contract. The contract covered fiscal year 1991 and had options for 4 additional years. Rather than exercising the option in MEDIQ's contract for fiscal year 1992, however, the Air Force issued a new solicitation with a revised statement of work and informational requirements different from those under which MEDIQ competed for its contract. The Air Force states that it needed to revise the statement of work and RFP to more closely conform to its actual needs.

The current RFP requires that the contractor provide full maintenance, including software and hardware upgrades. To demonstrate the ability to do this, the RFP requires that offerors provide evidence of their ability to provide both hardware and software upgrades and enhancements. MEDIQ challenges a number of the these requirements.

Initially, we note that several of MEDIQ's specific objections to the RFP either have been resolved in amendments to the RFP that have been issued or will be resolved in an amendment to be issued. For example, MEDIQ contends that a requirement for the contractor to provide "only new parts" should be replaced with a requirement for "new or parts remanufactured to manufacturer's specifications." Similarly, MEDIQ contests a requirement that services be provided by factory trained employees; MEDIQ contends that training equivalent to factory training should be sufficient. The Air Force has amended the RFP to incorporate these changes, as well as others proposed by MEDIQ. Because these questions have been resolved, we will not consider them.

In its initial protest, MEDIQ challenged a requirement to provide a list of "all vendors" from which the prospective contractor would acquire replacement parts on the basis that it was not possible to identify with certainty all of the vendors from which MEDIQ might acquire supplies. The Air Force, in its report, responded to this objection with the comment that the requirement was being changed to require a list of only primary sources. The Air Force explained that it needed this list to assure the availability of adequate spare parts. In its comments on that report, MEDIQ essentially ignores the Air Force's proposed change and reiterates its objection to the "all vendors" requirement, and further argues that the list would only provide evidence of sources for parts, not parts availability. MEDIQ contends that the Air Force should rely instead on uptime as the measure of performance of the service provider.

MEDIQ has provided no evidence that the proposed change to a requirement for a list of only primary suppliers would not resolve MEDIQ's initial assertion that it would not be possible to list "all vendors" from which MEDIQ might acquire spare parts. Since MEDIQ did not respond to the change, we view its initial contention as academic and will not consider it further. See Professional Carpet Service, B-243942, Sept. 10, 1991, 91-2 CPD Para. 236.

We also will not consider MEDIQ's belated contention that the requirement for a list of parts vendors would not provide evidence of parts availability and should be replaced by an uptime measure. Our Bid Protest Regulations do not contemplate piecemeal presentation of arguments or information relating to a protest. J&J Maintenance, Inc., B-240799.2, B-240802.2, Feb. 27, 1991, 91-1 CPD Para. 223. The time to raise an objection to the vendor list requirement on the basis stated in MEDIQ's final comments was in MEDIQ's initial protest, when the issue could have been addressed by the Air Force and resolved by our Office without undue disruption or delay to the procurement. Because MEDIQ could have raised this contention in its initial protest, but delayed raising the issue until its final comments, we will not consider its merits. See, e.g., G&A General Contractors, B-244094, Aug. 27, 1991, 91-2 CPD Para. 204; Source AV Inc., B-244755.2, B-244755.3, Sept. 10, 1991, 91-2 CPD Para. 237.

MEDIQ states that the manufacturer is responsible for the correction of safety-related defects in the scanner. MEDIQ asserts that the Air Force, by requiring the contractor to be responsible for all hardware and software upgrades, including those intended to remedy safety related defects, thus improperly combined sole-source and competitive requirements in the RFP. /2/

/1/ See 21 C.F.R. Sec. 892.1750 (1991); CT is an abbreviation for computed tomography.

/2/ CT scanners are radiological equipment regulated by the Food and Drug Administration. See, e.g., 21 C.F.R. Subchapter J (1991). The FDA requires manufacturers of regulated equipment to remedy, without charge, defects or failures to meet federal standards, or replace the equipment or refund the purchase price to the purchaser. See 21 C.F.R. Parts 1003- 1004.