B-215399, B-215399.2, DEC 26, 1984, 84-2 CPD 700

B-215399,B-215399.2: Dec 26, 1984

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PROTEST OF EXCLUSION OF A PROPOSAL FROM THE COMPETITIVE RANGE IS DENIED WHERE THE PROTESTER HAS NOT SHOWN THAT THE TECHNICAL EVALUATION FINDING ITS PROPOSAL UNACCEPTABLE WAS UNREASONABLE. PROTEST IS SUSTAINED WHERE THE PROTESTER'S PROPOSAL WAS REJECTED BECAUSE DOCUMENTS IN ITS REQUIRED MICROFICHE SAMPLE WERE FILMED OUT OF SEQUENCE. EVIDENCE SUGGESTS THAT IT IS MORE LIKELY THAT THE DOCUMENTS WERE FILMED IN THE ORDER THEY WERE IN WHEN THE PROTESTER RECEIVED THEM. THE PROCUREMENT WAS FOR MICROFILMING MEDICAL RECORDS. BOTH ADI AND CIM WERE ELIMINATED FROM THE COMPETITIVE RANGE AFTER THEIR PROPOSALS WERE FOUND TECHNICALLY UNACCEPTABLE. CIM'S TECHNICAL SCORE WAS 112 AND REMAC'S (THE THIRD OFFEROR AND EVENTUAL AWARDEE) WAS 219.

B-215399, B-215399.2, DEC 26, 1984, 84-2 CPD 700

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - COMPETITIVE RANGE EXCLUSION - REASONABLENESS 1. PROTEST OF EXCLUSION OF A PROPOSAL FROM THE COMPETITIVE RANGE IS DENIED WHERE THE PROTESTER HAS NOT SHOWN THAT THE TECHNICAL EVALUATION FINDING ITS PROPOSAL UNACCEPTABLE WAS UNREASONABLE. CONTRACTS - PROTESTS - SUSTAINED - EVALUATION OF PROPOSALS - ERRONEOUS 2. PROTEST IS SUSTAINED WHERE THE PROTESTER'S PROPOSAL WAS REJECTED BECAUSE DOCUMENTS IN ITS REQUIRED MICROFICHE SAMPLE WERE FILMED OUT OF SEQUENCE, BUT EVIDENCE SUGGESTS THAT IT IS MORE LIKELY THAT THE DOCUMENTS WERE FILMED IN THE ORDER THEY WERE IN WHEN THE PROTESTER RECEIVED THEM, AND THE REJECTION OF THE PROTESTER'S PROPOSAL LEFT ONLY ONE MORE EXPENSIVE, PROPOSAL IN THE COMPETITIVE RANGE.

AUTOMATED DATATRON, INC.; CALIFORNIA IMAGE MEDIA, INC.:

AUTOMATED DATATRON, INC. (ADI) AND CALIFORNIA IMAGE MEDIA, INC. (CIM) PROTEST THE REJECTION OF THEIR PROPOSALS BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS) UNDER REQUEST FOR PROPOSALS (RFP) NO. 263-84-P (83)- 0033. THE PROCUREMENT WAS FOR MICROFILMING MEDICAL RECORDS. WE DENY ADI'S PROTEST AND SUSTAIN CIM'S PROTEST.

HHS RECEIVED THREE PROPOSALS IN RESPONSE TO THE RFP. BOTH ADI AND CIM WERE ELIMINATED FROM THE COMPETITIVE RANGE AFTER THEIR PROPOSALS WERE FOUND TECHNICALLY UNACCEPTABLE. ADI RECEIVED A TECHNICAL SCORE OF 38 OUT OF A POSSIBLE 250 POINTS. CIM'S TECHNICAL SCORE WAS 112 AND REMAC'S (THE THIRD OFFEROR AND EVENTUAL AWARDEE) WAS 219.

ADI PROTEST

ADI CONTENDS THAT HHS HAS NO RATIONAL BASIS FOR ELIMINATING ITS PROPOSAL FROM THE COMPETITIVE RANGE. THE PROTESTER ARGUES THAT ITS PROPOSAL WAS CLEAR AND COMPLETE, AND THAT ANY DEFICIENCIES WHICH DID EXIST WERE NOT SO MATERIAL THAT THEY PRECLUDED THE POSSIBILITY OF UPGRADING THE PROPOSAL TO A COMPETITIVE LEVEL THROUGH DISCUSSIONS. HHS DISAGREES AND ARGUES THAT ADI'S PROPOSAL CONTAINED SERIOUS DEFICIENCIES WHICH RENDERED IT UNACCEPTABLE.

THE EVALUATION OF PROPOSALS AND DETERMINATION OF WHETHER AN OFFEROR IS IN THE COMPETITIVE RANGE ARE MATTERS WITHIN THE DISCRETION OF THE CONTRACTING AGENCY SINCE IT IS RESPONSIBLE FOR DEFINING ITS NEEDS AND THE BEST METHOD OF ACCOMPLISHING THEM. ESSEX ELECTRO ENGINEERS, INC.; ACL-FILCO CORP., B-211053.2 ET AL., JAN. 17, 1984, 84-1 CPD PARA. 74. GENERALLY, OFFER THAT ARE TECHNICALLY UNACCEPTABLE AS SUBMITTED AND WHICH WOULD REQUIRE MAJOR REVISIONS TO BECOME ACCEPTABLE MAY BE EXCLUDED FROM THE COMPETITIVE RANGE. ID. FURTHER, WHERE A PROPOSAL IS FOUND TO BE TECHNICALLY UNACCEPTABLE AND THEREFORE OUTSIDE THE COMPETITIVE RANGE, THE AGENCY HAS NO DUTY TO HOLD DISCUSSIONS WITH THE OFFEROR. ZUNI CULTURAL RESOURCE ENTERPRISE, B-208824, JAN. 17, 1983, 83-1 CPD PARA. 45.

IN REVIEWING AN AGENCY'S TECHNICAL EVALUATION, WE DO NOT INDEPENDENTLY EVALUATE PROPOSALS AND MAKE OUR OWN DETERMINATION AS TO THEIR ACCEPTABILITY, BUT WE EXAMINE THE AGENCY'S EVALUATION TO ENSURE THAT IT HAD A REASONABLE BASIS. SYSCON CORP., B-208882, MAR. 31, 83-1 CPD PARA. 335. WE HAVE EXAMINED THE ENTIRE RECORD OF THE TECHNICAL EVALUATION OF ADI'S PROPOSAL AND FIND THAT THE EVALUATION AND COMPETITIVE RANGE DETERMINATION WERE REASONABLE.

THE MOST SIGNIFICANT DEFICIENCY FOUND IN ADI'S PROPOSAL WAS IN ITS SAMPLE MICROFICHE. ADI RECEIVED A SCORE OF ZERO OUT OF A POSSIBLE 100 POINTS FOR THIS EVALUATION FACTOR.

THE RFP REQUIRED THAT EACH OFFEROR PREPARE A SAMPLE MICROFICHE FROM MEDICAL RECORDS MADE AVAILABLE BY THE AGENCY. THE SOLICITATION STATED THAT THE SAMPLE WOULD BE EXAMINED AS TO ALL SPECIFICATION REQUIREMENTS, INCLUDING TARGETS, IMAGE CLARITY AND LEGIBILITY, AND CLEANLINESS. THE RFP ALSO WARNED:

"ANY PROPOSAL WHOSE ACCOMPANYING FILM SAMPLE FAILS TO MEET THE SPECIFICATIONS FOR RESOLUTION, DENSITY, UNIFORMITY OF DENSITY, ARCHIVAL QUALITY, ETC., DESCRIBED IN THE TECHNICAL SPECIFICATIONS ... WILL NOT BE CONSIDERED FOR FURTHER EVALUATION AND CONTRACT AWARD."

THE TECHNICAL EVALUATION COMMITTEE FOUND ADI'S SAMPLE UNACCEPTABLE BECAUSE IT CONTAINED NUMEROUS FINGERPRINTS, WAS NOT IN THE REQUIRED FORMAT, AND IN PART WAS NOT READILY "EYE READABLE." ALTHOUGH ADI CHARACTERIZES THESE DEFICIENCIES AS MINOR, THE AGENCY EMPHASIZES THAT THE DEFECTS FOUND IN THE SAMPLE WOULD BE CAUSE FOR REJECTION UNDER THE INSPECTION AND ACCEPTANCE PROVISIONS OF THE RFP. THE AGENCY ALSO NOTES THAT, CONTRARY TO THE PROTESTER'S CONTENTION, FINGERPRINTS ARE A SIGNIFICANT DEFECT BECAUSE OIL FROM THE SKIN CAUSE FILM TO DETERIORATE.

BASED ON THE RECORD BEFORE US, WE FIND THE EVALUATION OF ADI'S FILM SAMPLE REASONABLE. THE SAMPLE DID NOT MEET THE TECHNICAL SPECIFICATIONS IS SEVERAL RESPECTS, AND IT IS CLEAR THAT EACH OF THE THREE EVALUATORS CONSIDERED THE DEVIATIONS SIGNIFICANT. FOR EXAMPLE, ONE EVALUATOR NOTED THAT THE FILM AS SUBMITTED ESSENTIALLY WAS UNUSABLE. IN ADDITION, ADI HAS OFFERED NO SUPPORT FOR ITS BARE ASSERTION THAT THE DEFICIENCIES FOUND IN ITS SAMPLE ARE MINOR. ACCORDINGLY, WE FOND NO MERIT TO ITS CONTENTION.

IN ADDITION TO THE DEFICIENCIES FOUND IN ADI'S SAMPLE MICROFICHE, THE EVALUATORS FOUND THAT ADI'S ENTIRE WORK PLAN WAS VERY WEAK AND DID NOT PROVIDE AN ADEQUATE RESPONSE TO SEVERAL RFP REQUIREMENTS. THESE INCLUDED TARGET PLACEMENT, PREPARATION OF TRANSLUCENT DOCUMENTS, FILMING REQUIREMENTS, REJECTS AND REMAKES, INSPECTION, EMERGENCY RETRIEVAL, TECHNICAL FILM SPECIFICATIONS, AND SECURITY. WE HAVE EXAMINED ADI'S PROPOSAL, AS WELL AS REMAC'S WINNING PROPOSAL, AND FIND NO BASIS TO QUESTION THE EVALUATORS' CONCLUSIONS IN THIS RESPECT.

OUR REVIEW OF ADI'S PROPOSAL SHOW THAT THE OFFER GENERALLY LACKED DETAIL CONCERNING HOW ADI WOULD MEET SPECIFIC RFP REQUIREMENTS. MANY OF THE REQUIREMENTS NOTED BY THE EVALUATORS WERE NOT ADDRESSED AT ALL. OTHERS, SUCH AS FILMING AND INSPECTION, WERE DISCUSSED BUT THE DISCUSSION WAS BRIEF AND GENERAL. IN CONTRAST, REMAC'S PROPOSAL CONTAINED SIGNIFICANTLY MORE DETAIL.

BASED ON THE ABOVE DISCUSSION, WE CONCLUDE THAT THE EVALUATION OF ADI'S PROPOSAL WAS REASONABLE. WE ALSO CONCLUDE THAT IN VIEW OF THE MANY DEFICIENCIES FOUND IN THE PROPOSAL, THE DECISION TO ELIMINATE ADI FROM THE COMPETITIVE RANGE WAS PROPER. ADI'S PROTEST IS DENIED.

CIM PROTEST

CIM PROTESTS THE ELIMINATION OF ITS PROPOSAL FROM THE COMPETITIVE RANGE. ALTHOUGH CIM RAISES SEVERAL OBJECTIONS TO THE EVALUATION OF ITS PROPOSAL, WE ARE LIMITING OUR DISCUSSION TO THOSE ISSUES WE CONSIDER DISPOSITIVE.

THE TECHNICAL EVALUATION COMMITTEE FOUND THE PROPOSAL UNACCEPTABLE BECAUSE A PORTION OF THE MEDICAL RECORD FILE SUPPLIED BY HHS WAS FILMED OUT OF SEQUENCE IN CIM'S SAMPLE MICROFICHE. A COPY OF AN ELECTROCARDIOGRAM TRACING APPEARED AS THE FIRST DOCUMENT IN THE RADIOLOGY SECTION, INSTEAD OF IN THE ELECTROCARDIOGRAM SECTION, WHICH IMMEDIATELY PRECEDED THE RADIOLOGY SECTION. THE TWO SECTIONS WERE SEPARATED BY A DIVIDER, AND THE ELECTROCARDIOGRAM TRACING IN QUESTION SHOULD HAVE APPEARED IMMEDIATELY BEFORE THE DIVIDER RATHER THAT AFTER IT. THE EVALUATORS CHARACTERIZED THIS AS A GROSS TECHNICAL ERROR, AND AWARDED CIM 0 OUT OF A POSSIBLE 100 POINTS FOR THE SAMPLE.

CIM CONTENDS THAT IT FILMED THE DOCUMENTS IN THE ORDER THEY WERE IN WHEN RECEIVED. IT STATES THAT IT TOOK EVERY POSSIBLE PRECAUTION TO PREVENT DOCUMENTS FROM BEING FILMED OUT OF SEQUENCE BECAUSE HHS HAD REJECTED A CIM PROPOSAL UNDER A PREVIOUS SOLICITATION FOR THAT REASON. /1/ THESE PRECAUTIONS INCLUDED HIRING A MEDICAL CONSULTANT TO REVIEW THE MEDICAL RECORD FILE AND PREPARE A REPORT ON ITS CONTENTS BEFORE THE FILE WAS DISASSEMBLED FOR FILMING. THE REPORT SHOWS THAT THE FIRST PAGE OF THE RADIOLOGY SECTION WAS AN ELECTROCARDIOGRAM TRACING.

HHS CONTENDS THAT THE MEDICAL RECORD FILE COULD NOT HAVE BEEN OUT OF SEQUENCE WHEN CIM RECEIVED IT. HHS STATES THAT IT MAKES AND RETAINS A PHOTOCOPY OF THE MEDICAL RECORD FILE DISTRIBUTED TO EACH OFFEROR, WHICH IT CAREFULLY CHECKS AGAINST THE ORIGINAL TO BE SURE THE FILES MATCH EXACTLY BEFORE THE ORIGINAL IS RELEASED FOR FILMING. IN THIS CASE, THE PHOTOCOPY RETAINED BY THE AGENCY SHOWS ALL RECORDS IN THEIR PROPER ORDER, THAT IS, THE ELECTROCARDIOGRAM TRACING WHICH APPEARS IN THE RADIOLOGY SECTION OF CIM'S SAMPLE MICROFICHE IS IN THE ELECTROCARDIOGRAM SECTION OF THE RECORD RETAINED BY THE AGENCY. HOWEVER, IN THE ORIGINAL RECORD FILE RETURNED TO HHS BY CIM (ALL OFFERORS WERE REQUIRED TO RETURN THE FILES), THE ELECTROCARDIOGRAM TRACING IS OUT OF SEQUENCE. HHS ASSERTS THAT THIS SHOWS THE FILE WAS IN ORDER WHEN RECEIVED BY CIM, BUT WAS FILMED AND REASSEMBLED OUT OF SEQUENCE.

HHS ALSO NOTES THAT THE ELECTROCARDIOGRAM REPORT WHICH SHOULD PRECEDE THE THE MISPLACED ELECTROCARDIOGRAM TRACING WAS NUMBERED "E1" AND THE TRACING "E2." HHS CONTENDS THAT CIM PUT THESE NUMBERS ON THE DOCUMENTS TO INDICATE THE ORDER FOR FILMING BUT THEN OBVIOUSLY DID NOT FOLLOW THEM, FURTHER, HHS ASSERTS THAT IF CIM WAS AWARE FROM THE MEDICAL CONSULTANT'S REPORT THAT AN ELECTROCARDIOGRAM TRACING APPEARED IN THE RADIOLOGY SECTION WHERE IT DID NOT BELONG, CIM SHOULD HAVE QUESTIONED HHS ABOUT IT.

CIM ARGUES THE HHS MUST HAVE REASSEMBLED THE ORIGINAL MEDICAL RECORD FILE IMPROPERLY AFTER IT MADE THE COPY TO BE MAINTAINED BY THE AGENCY, AND CONTENDS THAT IT IS NOT POSSIBLE THAT CIM FILMED THE FILE OUT OF SEQUENCE. THE FIRM STATES THAT IT CHECKED AND RECHECKED THE FILE ORDER BEFORE AND AFTER THE FILMING PROCESS AND CITES THE MEDICAL CONSULTANT'S REPORT AS PROOF THAT THE FILE WAS FILMED IN THE ORDER RECEIVED. CIM ALSO STATES THAT IT DID CONTACT HHS ABOUT ONE PERCEIVED IRREGULARITY IN THE FILE (THE PRESENCE OF MEDICAL RECORDS FOR MORE THAN ONE PATIENT) AND WAS TOLD THAT THIS WAS DONE INTENTIONALLY SO THAT A GOOD CROSS SECTION OF FORMS COULD BE PROVIDED, AND THAT CIM SHOULD FILM THE RECORDS AS RECEIVED. CIM STATES THAT IT DID EXACTLY AS DIRECTED.

OBVIOUSLY, THE RECORD IN THIS CASE CONTAINS SOME CONFLICTING EVIDENCE. NEVERTHELESS, BASED ON THE MEDICAL CONSULTANT'S REPORT PREPARED BEFORE THE FILE WAS DISASSEMBLED FOR FILMING, WE FIND IT LIKELY THAT CIM INDEED FILMED THE RECORDS IN THE ORDER RECEIVED. HHS HAS NOT QUESTIONED THE VALIDITY OF THIS REPORT AND WE NOTE THAT IT IS DATED PRIOR TO THE DEADLINE FOR PROPOSAL SUBMISSION. FURTHER, THERE IS NOTHING IN THE RECORD TO SUGGEST THAT THE REPORT IS NOT CREDIBLE. THUS, WHILE HHS MAY IN GOOD FAITH BELIEVE THAT THE ELECTROCARDIOGRAM COULD NOT HAVE BEEN OUT OF SEQUENCE WHEN RECEIVED BY CIM, IN OUR VIEW THE MEDICAL CONSULTANT'S REPORT TIPS THE WEIGHT OF THE EVIDENCE IN THE PROTESTER'S FAVOR.

IN THAT CONNECTION, WE ARE NOT CONVINCED THAT THE NUMBERS ON THE BACK OF THE ELECTROCARDIOGRAM REPORT AND TRACING INDICATE THAT THE TRACING WAS FILMED OUT OF SEQUENCE. HHS STATES THAT CIM DID NOT NUMBER THE FILE DIVIDERS. THUS, ALTHOUGH THE ELECTROCARDIOGRAM REPORT NUMBERED E1 IS SEPARATED BY A DIVIDER FROM THE CORRESPONDING TRACING NUMBERED E2, THERE IS NO REASON TO BELIEVE THAT THE DIVIDER WAS NOT LOCATED BETWEEN THE REPORT AND TRACING WHEN CIM RECEIVED THEM. WE ALSO ARE NOT PERSUADED THAT IT WAS CIM'S DUTY TO INQUIRE ABOUT THE APPARENT MISPLACEMENT OF THE ELECTROCARDIOGRAM TRACING IN THE RADIOLOGY SECTION OF THE FILE. HAVING INQUIRED ONCE ABOUT ANOTHER IRREGULARITY AND TOLD TO FILM THE RECORDS AS RECEIVED, WE THINK CIM WAS REASONABLE IN ITS ASSUMPTION THAT NO FURTHER INQUIRY WAS NECESSARY.

IN ANY EVENT, WE THINK THE ELIMINATION OF CIM FROM THE COMPETITIVE RANGE BECAUSE OF A DEFICIENCY IN ITS SAMPLE MICROFICHE WAS NOT JUSTIFIED. RECOGNIZE THAT THE RFP WARNED THAT ANY SAMPLE THAT DID NOT MEET THE TECHNICAL SPECIFICATIONS FOR "RESOLUTION, DENSITY, UNIFORMITY OF DENSITY, ARCHIVAL QUALITY, ETC." WOULD NOT BE FURTHER CONSIDERED, AND THAT THE TECHNICAL SPECIFICATIONS REQUIRED ALL PAGES TO BE IN SEQUENCE. NEVERTHELESS, WE CANNOT AGREE THAT THIS DEFICIENCY JUSTIFIED A DETERMINATION THAT CIM'S TECHNICAL PROPOSAL WAS UNACCEPTABLE SIMPLY BECAUSE A DIVIDER APPEARED TO BE OUT OF SEQUENCE, PARTICULARLY SINCE CIM'S PROPOSED COSTS WERE LOWER THAN REMAC'S AND CIM'S ELIMINATION WOULD, AND DID, RESULT IN A COMPETITIVE RANGE OF ONE. /2/ SEE FALCON SYSTEMS, INC., B-213661, JUNE 22, 1984, 84-1 CPD PARA. 658. AS WE SAID IN COMTEN- COMRESS, B-183379, JUNE 30, 1975, 75-1 CPD PARA. 400, IN VIEW OF THE REQUIREMENT TO MAXIMIZE COMPETITION FOR GOVERNMENT CONTRACTS AND WHERE THERE OTHERWISE WOULD BE A SINGLE OFFEROR IN THE COMPETITIVE RANGE:

"IF THERE IS A CLOSE QUESTION OF ACCEPTABILITY; IF THERE IS AN OPPORTUNITY FOR SIGNIFICANT COST SAVINGS; IF THE INADEQUACIES OF THE SOLICITATION CONTRIBUTED TO THE TECHNICAL DEFICIENCY OF THE PROPOSAL; IF THE INFORMATIONAL DEFICIENCY COULD BE REASONABLY CORRECTED BY RELATIVELY LIMITED DISCUSSIONS, THEN INCLUSION OF THE PROPOSAL IN THE COMPETITIVE RANGE AND DISCUSSIONS ARE IN ORDER."

ACCORDINGLY, ON THIS RECORD, WE FIND THAT CIM'S PROTEST HAS MERIT.

DUE TO THE EXTENT OF CONTRACT PERFORMANCE, WE ARE NOT RECOMMENDING CONTRACT TERMINATION IN THIS CASE. THE CONTRACT WAS AWARDED ALMOST 7 MONTHS AGO AND INCLUDED A 4-MONTH "SHAKEDOWN" OR TRIAL PERIOD FOR ORIENTING CONTRACTOR EMPLOYEES AND TESTING ADHERENCE TO SPECIFICATIONS. WE THEREFORE DO NOT CONSIDER CONTRACT TERMINATION AN APPROPRIATE REMEDY AT THIS TIME. WE ARE RECOMMENDING, HOWEVER, THAT HHS NOT EXERCISE THE OPTION TO RENEW REMAC'S CONTRACT, BUT INSTEAD RECOMPETE THE REQUIREMENT AT THE END OF THE INITIAL CONTRACT TERM.

CIM'S PROTEST IS SUSTAINED.

/1/ CIM STATE THAT IT FELT CERTAIN AT THAT TIME THAT THE DOCUMENTS HAD BEEN FILMED PROPERLY, BUT DID NOT PROTEST BECAUSE THE SOLICITATION WAS CANCELED.

/2/ WE NOTE THAT THIS IS A VERY DIFFERENT SITUATION FROM THAT OF ADI, WHOSE SAMPLE MICROFICHE WAS FOUND TO CONTAIN SEVERAL SERIOUS DEFICIENCIES WHICH RENDERED IT UNUSABLE.