B-176077(3), JAN 26, 1973

B-176077(3), JAN 26, 1973

BID PROTEST - TECHNICAL EVALUATORS - CONTAMINATED SAMPLES DECISION DENYING THE PROTEST OF BENDINER & SCHLESINGER, INC. (B&S), AGAINST THE AWARD OF CONTRACTS UNDER AN RFP ISSUED BY THE U.S. ARMY MEDICAL RESEARCH AND DEVELOPMENT COMMAND, WASHINGTON, D.C., FOR LABORATORY URINALYSIS SCREENING. SINCE THE RECORD DOES NOT CONTAIN ANY SPECIFIC INDICATION THAT B&S'S TESTING PROCEDURES WERE ADVERSELY AFFECTED BY THE PRESENCE OF PARAFFIN IN THE SAMPLES, AND SINCE THE CONTRACTING OFFICER STATES THAT THIS PRESENCE WOULD NOT AFFECT B&S'S TEST RESULTS, GAO CANNOT CONCLUDE THE TEST RESULTS WERE INVALID OR THAT B&S WAS UNFAIRLY PREJUDICED BY THE USE OF THESE RESULTS IN THE RFP'S EVALUATION. ALSO, THE SELECTION OF TECHNICAL EVALUATORS IS AN ADMINISTRATIVE MATTER OF THE PROCURING AGENCY AND IS NOT SUBJECT TO CHALLENGE ABSENT A SHOWING OF PREJUDICE, BAD FAITH, OR CONFLICT OF INTEREST.

TO BENDINER & SCHLESINGER, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1972, PROTESTING AGAINST THE AWARD OF CONTRACTS UNDER REQUEST FOR PROPOSALS (RFP) DADA17 72 -R-0602, TO OTHER FIRMS BY THE UNITED STATES ARMY MEDICAL RESEARCH AND DEVELOPMENT COMMAND, WASHINGTON, D.C.

THE SOLICITATION WAS FOR LABORATORY URINALYSIS SCREENING IN CONNECTION WITH THE DEPARTMENT OF DEFENSE DRUG ABUSE PROGRAM. SECTION D OF THE RFP PROVIDED FOR AN INITIAL EVALUATION OF WRITTEN PROPOSALS ON THE BASIS OF ANSWERS TO TECHNICAL QUESTIONS SET FORTH IN THAT SECTION, FOLLOWED BY AN EVALUATION OF REASONABLENESS OF PRICE. THE THIRD PHASE OF THE EVALUATION INVOLVED THE SUBMISSION OF QUALITY CONTROL SPECIMEN SAMPLES TO THOSE OFFERORS WITHIN THE COMPETITIVE RANGE FOR LABORATORY PROCESSING. ELEVEN OF THE 27 OFFERORS SUBMITTING PROPOSALS WERE SELECTED FOR LABORATORY TESTING, AND TWO OF THOSE, WASHINGTON REFERENCE LABORATORY, INC. (WRL), AND BIOCHEMICAL PROCEDURES, ACHIEVED AN ACCURACY RATING OF OVER 90 PERCENT. CONTRACTS WERE SUBSEQUENTLY AWARDED TO THOSE TWO FIRMS FOR $2.31 AND $2.19 PER SPECIMEN PROCESSED, RESPECTIVELY. YOUR PROTEST AND THOSE OF FIVE OTHER UNSUCCESSFUL OFFERORS WERE THEN FILED WITH THIS OFFICE.

YOU CHALLENGE THE EVALUATION OF THE SPECIMEN TESTING THAT WAS CONDUCTED, CLAIMING THAT THE SAMPLES WERE CONTAMINATED WITH PARAFFIN AND THAT THE BARBITURATE SAMPLES WERE IMPROPERLY PREPARED. YOU ALSO ASSERT THAT WRL'S PAST PERFORMANCE SHOULD HAVE PRECLUDED AWARD TO THAT FIRM, AND ALLEGE THAT THE AWARD PRICE OF $2.31 WAS DISADVANTAGEOUS TO THE GOVERNMENT IN LIGHT OF YOUR PROPOSED PRICE OF $1.75 PER SAMPLE. IN ADDITION, YOU OBJECT TO THE USE OF PERSONNEL FROM THE WALTER REED ARMY INSTITUTE OF RESEARCH (WRAIR) FOR BOTH PREPARING THE TEST SPECIMENS AND INSPECTING OFFEROR'S LABORATORY FACILITIES.

THE QUESTION OF CONTAMINATED SAMPLES AROSE FROM THE ARMY'S USE OF A PARAFFIN WAX SEALANT ON THE SPECIMEN CONTAINERS TO PREVENT LEAKAGE DURING TRANSIT. YOU STATE THAT PARAFFIN WAS PRESENT IN THE SPECIMENS AND THAT PARAFFIN INTERFERES WITH CHROMATOGRAPHIC PROCEDURES, DISTORTING THE TEST RESULTS AND MAKING THEM UNRELIABLE.

YOU CLAIM THAT YOU NOTED YOUR OBJECTION TO THE PARAFFIN AT THE TIME THE SAMPLES WERE SUBMITTED TO YOU FOR TESTING. THE CONTRACTING OFFICER DENIES THAT YOU OBJECTED TO THE USE OF PARAFFIN, OTHER THAN TO COMMENT THAT IT MADE OPENING THE BOTTLES DIFFICULT. HE ALSO STATES THAT PARAFFIN COULD INTERFERE ONLY WITH GAS-LIQUID CHROMATOGRAPHY PROCEDURES, BUT NOT WITH YOUR SCREENING PROCESS AND, "IF, FOR ARGUMENT'S SAKE, THE SAMPLES CONTAINED PARAFFIN, THE SCREENING PROCESS BY BENDINER & SCHLESINGER WOULD NOT HAVE BEEN IMPAIRED." HE ALSO POINTS OUT THAT THE ALLEGED PARAFFIN CONTAMINATION APPARENTLY DID NOT INTERFERE WITH YOUR ABILITY TO SCREEN AND CONFIRM AMPHETAMINES AND BARBITURATES AT SPECIFIED CONCENTRATIONS. THEREFORE, HE ATTRIBUTES YOUR LOW SCORE TO A LACK OF SENSITIVITY IN YOUR SCREENING PROCEDURES. IN LIGHT OF THIS EXPLANATION, AND THE ABSENCE FROM THE RECORD OF ANY SPECIFIC INDICATION THAT YOUR TESTING PROCEDURES WERE ADVERSELY AFFECTED BY THE PRESENCE OF PARAFFIN, WE CANNOT CONCLUDE THAT THE TEST RESULTS WERE INVALID OR THAT YOU WERE UNFAIRLY PREJUDICED BY THE USE OF THOSE RESULTS IN THE EVALUATION.

WE ARE NOT AWARE OF ANY IMPROPRIETY OR LACK OF OBJECTIVITY CAUSED BY THE USE OF WRAIR PERSONNEL TO PREPARE THE TEST SPECIMENS AND ALSO TO INSPECT AND EVALUATE LABORATORY FACILITIES AND PROCEDURES. THE SELECTION OF TECHNICAL EVALUATORS IS AN ADMINISTRATIVE MATTER FOR THE PROCURING AGENCY, AND IS NOT SUBJECT TO CHALLENGE ABSENT A SHOWING OF PREJUDICE, BAD FAITH, OR CONFLICT OF INTEREST. NO SUCH SHOWING HAS BEEN MADE HERE. THE RECORD REVEALS THAT WRAIR PERSONNEL PREPARED AND ADMINISTERED THE QUALITY CONTROL SPECIMENS, EVALUATED THE TEST RESULTS, INSPECTED FACILITIES, AND FURNISHED THE BOARD OF AWARDS WITH THE RESULTS OF THEIR ACTIVITIES. THE BOARD CAREFULLY CONSIDERED THESE RESULTS AND MADE RECOMMENDATIONS FOR AWARD TO THE CONTRACTING OFFICER. THE CONTRACTING OFFICER'S PROPOSAL TO MAKE AWARDS IN ACCORDANCE WITH THE BOARD'S RECOMMENDATIONS WAS THEN APPROVED BY THE HEAD OF THE PROCURING ACTIVITY.

WE HAVE THOROUGHLY REVIEWED YOUR OTHER CONTENTIONS AND FIND THAT THEY DO NOT PROVIDE A BASIS FOR OUR OFFICE TO OBJECT TO THE AWARDS. WE ARE ENCLOSING A COPY OF OUR LETTER OF TODAY TO COUNSEL FOR B&W STAT LABORATORY, INCORPORATED, IN WHICH WE DISCUSS AT LENGTH THE OTHER CONTENTIONS THAT YOU MAKE.

WITH REGARD TO YOUR RECOMMENDATION THAT THE CONTRACTORS NOT BE REQUIRED TO PROCESS MORE THAN 1,500 SPECIMENS PER DAY, THE CONTRACTING OFFICER ADVISES THAT THE DAILY AVERAGE OF SPECIMENS TO BE TESTED UNDER THE CONTRACTS WILL BE ABOUT 1,500.