B-220295, JAN 10, 1986, 86-1 CPD 26

B-220295: Jan 10, 1986

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CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - TECHNICAL ACCEPTABILITY - ADMINISTRATIVE DETERMINATION DIGEST: THE DETERMINATION OF THE RELATIVE MERITS OF AN OFFEROR'S TECHNICAL PROPOSAL IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY AND WILL BE QUESTIONED ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS OR THAT THE PROCURING AGENCY OTHERWISE VIOLATED PROCUREMENT STATUTES OR REGULATIONS. PROTEST IS DENIED WHERE THE RECORD SHOWS A REASONABLE BASIS FOR THE PROCURING AGENCY'S EVALUATION OF THE PROTESTER'S TECHNICAL PROPOSAL AS UNACCEPTABLE AND THEREFORE NOT IN THE COMPETITIVE RANGE. THE PROTESTER WAS EXCLUDED FROM THE COMPETITIVE RANGE BECAUSE ITS PROPOSAL WAS DETERMINED TO BE INADEQUATE IN THREE SEPARATE TECHNICAL AREAS.

B-220295, JAN 10, 1986, 86-1 CPD 26

CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - EVALUATION - TECHNICAL ACCEPTABILITY - ADMINISTRATIVE DETERMINATION DIGEST: THE DETERMINATION OF THE RELATIVE MERITS OF AN OFFEROR'S TECHNICAL PROPOSAL IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING AGENCY AND WILL BE QUESTIONED ONLY UPON A CLEAR SHOWING OF UNREASONABLENESS OR THAT THE PROCURING AGENCY OTHERWISE VIOLATED PROCUREMENT STATUTES OR REGULATIONS. PROTEST IS DENIED WHERE THE RECORD SHOWS A REASONABLE BASIS FOR THE PROCURING AGENCY'S EVALUATION OF THE PROTESTER'S TECHNICAL PROPOSAL AS UNACCEPTABLE AND THEREFORE NOT IN THE COMPETITIVE RANGE.

HEALTH MANAGEMENT ASSOCIATES OF AMERICA, INC.:

HEALTH MANAGEMENT ASSOCIATES OF AMERICA, INC. (HMAA), PROTESTS THE DEPARTMENT OF COMMERCE'S DECISION TO EXCLUDE ITS PROPOSAL FROM THE COMPETITIVE RANGE AND ANY AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. 50-SAAA-6-01060. THE RFP SOUGHT OFFERS FOR A FIRM FIXED-PRICE CONTRACT PLUS REIMBURSABLE ITEMS, WITH TWO 1-YEAR OPTIONS, TO PROVIDE COMPLETE OCCUPATIONAL HEALTH CARE SERVICES FOR THE DEPARTMENT OF COMMERCE EMPLOYEES AT 10 HEALTH UNITS IN THE WASHINGTON, D.C., METROPOLITAN AREA. THE PROTESTER WAS EXCLUDED FROM THE COMPETITIVE RANGE BECAUSE ITS PROPOSAL WAS DETERMINED TO BE INADEQUATE IN THREE SEPARATE TECHNICAL AREAS. HMAA CHALLENGES THE REASONABLENESS OF THE TECHNICAL EVALUATION.

WE DENY THE PROTEST.

THE SOLICITATION CONTAINED TWO STATEMENTS OF WORK: ONE FOR NINE SEPARATE HEALTH UNITS AND ANOTHER FOR THE BUREAU OF ECONOMIC ANALYSIS HEALTH UNIT WHOSE NEEDS DIFFERED FROM THE OTHER NINE UNITS. THE SOLICITATION LISTED IN DESCENDING ORDER OF IMPORTANCE THE FOLLOWING FACTORS THAT WOULD BE USED TO EVALUATE ALL PROPOSALS:

1. STAFFING PLAN 30 POINTS

2. MANAGEMENT CAPABILITY 30 POINTS

3.COST 20 POINTS

4. EXPERIENCE 20 POINTS

TOTAL 100 POINTS

OFFERORS WERE ADVISED THAT AWARD WOULD BE "INFLUENCED BY THE PROPOSAL WHICH OFFERS THE GREATEST VALUE TO THE GOVERNMENT IN TERMS OF PERFORMANCE" RATHER THAN LOWEST PRICE.

WITH RESPECT TO THE CONTENT OF THE TECHNICAL PROPOSALS (ALL NONCOST CONSIDERATIONS-- WORTH 80 POINTS) THE SOLICITATION REQUIRED EACH OFFEROR'S PROPOSAL TO INCLUDE:

"(1) A DISCUSSION OF THE OFFEROR'S EXPERIENCE AND SUCCESS IN THE PERFORMANCE OF SERVICES SIMILAR TO THOSE REQUESTED IN THIS CONTRACT. THIS SHOULD INCLUDE A LIST OF CONTRACTS FOR SIMILAR SERVICES (GOVERNMENT- INDUSTRY) IN THE FOLLOWING FORMAT:

(I) CONTRACT NO.

(II) DOLLAR VALUE

(III) USER

(IV) DESCRIPTION OF SERVICES

(V) PERIOD OF PERFORMANCE

"(2) THE RESUMES OF ALL INDIVIDUALS PROPOSED FOR WORK UNDER THIS CONTRACT. ANY PERSONNEL NOT NOW FULL TIME EMPLOYEES OF THE OFFEROR MUST BE SO INDICATED. IN EACH CASE A COMMITMENT FROM THE INDIVIDUAL OFFERED MUST BE SUBMITTED CERTIFYING THAT HE WILL BE AVAILABLE WITHIN TWO (2) WEEKS AFTER AWARD OF CONTRACT.

"(3) A SPECIFIC DELINEATION OF HOW THE TIME AND SKILLS OF THE PROPOSED INDIVIDUALS WILL BE USED UNDER THE TERMS OF THIS CONTRACT. THE DISPOSITION OF THEIR TIME BETWEEN THIS CONTRACT AND OTHER WORK SHALL BE SPECIFICALLY DELINEATED.

"(4) A BRIEF DELINEATION OF THE METHODOLOGIES THAT THE OFFEROR CONSIDERS TO OFFER THE MOST POTENTIAL FOR THE SOLUTION OF THE PROBLEM. THIS SHOULD BE SUPPLEMENTED WITH A DISCUSSION OF THE OFFEROR'S SPECIAL COMPETENCE IN PURSUING THESE APPROACHES.

"(5) A LIST OF CORPORATE FACILITIES, LOCATIONS AND CURRENT STAFFING."

NINE FIRMS SUBMITTED OFFERS IN RESPONSE TO THE RFP AND THEIR TECHNICAL PROPOSALS WERE REFERRED TO A TECHNICAL EVALUATION COMMITTEE TO DETERMINE THE PROPOSALS' TECHNICAL MERIT. THE COMMITTEE FOUND HMAA'S PROPOSAL AS WELL AS THE PROPOSALS OF FOUR OTHER OFFERORS TO BE TECHNICALLY UNACCEPTABLE. THE CONTRACTING OFFICER THEREFORE DECIDED TO EXCLUDE THE PROTESTER FROM THE COMPETITIVE RANGE FOR NEGOTIATION.

COMMERCE'S REPORT ON THE PROTEST STATED THAT THE EVALUATION WAS PERFORMED IN ACCORDANCE WITH THE STATED EVALUATION CRITERIA AND THAT HMAA SUBMITTED AN UNACCEPTABLE PROPOSAL WHICH IN SOME AREAS WAS MERELY A "REPEAT OF VERBIAGE" IN THE RFP WHILE IN OTHER AREAS THE PROTESTER STATED THAT IT WOULD COMPLY WITH THE REQUIREMENTS BUT PROVIDED LITTLE DETAIL SHOWING HOW IT WOULD DO SO. COMMERCE FOUND HMAA'S PROPOSAL TO HAVE THREE BASIC DEFICIENCIES AND, AS A CONSEQUENCE, THE PROTESTER'S PROPOSAL RECEIVED ONLY 25 OF THE 80 POSSIBLE TECHNICAL POINTS-- SUBSTANTIALLY BELOW THE TECHNICAL SCORES OF THE PROPOSALS DETERMINED TO BE IN THE COMPETITIVE RANGE.

IN ITS RESPONSE TO THE AGENCY REPORT, HMAA RESPONDED TO EACH OF THE DEFICIENCIES FOUND BY COMMERCE, ARGUING THAT THE ALLEGED DEFICIENCIES WERE NOT DEFICIENCIES AT ALL- THAT ITS PROPOSAL WAS ACCEPTABLE IN THOSE AREAS. HMAA ARGUES THAT ITS PROPOSAL WAS SUBJECT TO "ARBITRARY AND SELECTIVE REVIEW" AND COMMERCE SHOULD HAVE INCLUDED ITS PROPOSAL IN THE COMPETITIVE RANGE.

THE EVALUATION OF TECHNICAL PROPOSALS AND THE RESULTING DETERMINATION OF WHETHER AN OFFEROR IS IN THE COMPETITIVE RANGE IS A MATTER WITHIN THE DISCRETION OF THE PROCURING AGENCY SINCE IT IS RESPONSIBLE FOR DEFINING ITS NEEDS AND THE BEST METHOD FOR ACCOMMODATING THEM. ADVANCED ELECTRO- MAGNETICS, INC., B-208271, APR. 5, 1983, 83-1 CPD PARA. 360 AT 4. REVIEWING AN AGENCY'S TECHNICAL EVALUATION, WE WILL NOT INDEPENDENTLY DETERMINE THE RELATIVE MERIT OF AN OFFEROR'S TECHNICAL PROPOSAL BUT WILL ONLY EXAMINE THE AGENCY'S EVALUATION TO INSURE THAT IT HAD A REASONABLE BASIS. ID., SEE ALSO SETAC, INC., 62 COMP.GEN. 577 (1983), 83-2 CPD PARA. 121 AT 13. MOREOVER, THE PROTESTER HAS THE BURDEN OF SHOWING THAT THE AGENCY'S EVALUATION WAS NOT REASONABLE. SEE COHERENT LASER SYSTEMS, INC., B-204701, JUNE 2, 1982, 82-1 CPD PARA. 517 AT 5.

WE FIND THAT THE TECHNICAL EVALUATION OF HMAA'S PROPOSAL AND ITS EXCLUSION FROM THE COMPETITIVE RANGE WAS REASONABLE. WE HAVE EXAMINED THE ENTIRE RECORD OF THE TECHNICAL EVALUATION IN CAMERA-- AT THE CONTRACTING AGENCY'S REQUEST-- AND FIND THAT THE EVALUATION WAS PERFORMED IN ACCORDANCE WITH THE EVALUATION CRITERIA SET FORTH IN THE RFP.

THE RFP STATES THAT OFFERORS SHOULD SUBMIT A STAFFING PLAN WHICH SHOULD INCLUDE: RESUMES FOR ALL FULL AND PART-TIME INDIVIDUALS WHO WILL PROVIDE SERVICES UNDER THIS CONTRACT; A SPECIFIC DELINEATION OF HOW THE TIME AND SKILLS OF THE STAFF MEMBERS WOULD BE UTILIZED AT THE 10 HEALTH UNITS; CERTIFICATION OF AVAILABILITY FROM EACH EMPLOYEE AND A LIST OF THE OFFEROR'S CURRENT STAFF. COMMERCE FOUND THE PROTESTER'S PROPOSAL DEFICIENT IN THIS AREA, CITING THE EVALUATION COMMITTEE'S FINDING WHICH QUESTIONED THE ABILITY OF HMAA TO PROVIDE THE 17.5 NURSES IT HAD PROPOSED FOR THE 10 UNITS, NOTING THAT THE PROTESTER HAD SUBMITTED ONLY THREE RESUMES FOR "NAMELESS" NURSES AND PROPOSED TO FILL THE ADDITIONAL NURSING SLOTS BY OFFERING EMPLOYMENT TO NURSES PRESENTLY WORKING FOR THE CURRENT HEALTH UNIT CONTRACTOR. THE AGENCY POINTS OUT THAT HMAA DID NOT SUBMIT A COMMITMENT FROM ANY OF THESE NURSES THAT THEY WOULD ACCEPT ITS OFFER OF EMPLOYMENT. THE AGENCY FURTHER NOTES THAT HMAA DID NOT DELINEATE IN ITS PROPOSAL HOW THE TIME AND SKILLS OF ITS PHYSICIAN WOULD BE ALLOCATED AMONG NINE OF THE 10 HEALTH UNITS. ACCORDINGLY, HMAA WAS GIVEN ONLY 7 OUT OF A POSSIBLE 30 TECHNICAL POINTS IN THE STAFFING CATEGORY.

HMAA DOES NOT DISPUTE THE RFP REQUIREMENTS UNDER THIS CRITERION EXCEPT TO CHALLENGE ANY OBLIGATION TO SPECIFY HOW THE PHYSICIAN'S TIME AND SKILLS WOULD BE ALLOCATED BETWEEN NINE OF THE 10 UNITS. WITH RESPECT TO ITS STAFFING PLAN FOR NURSES, HMAA CONTENDS THAT THE RESUMES OF THE THREE UNNAMED NURSES CONTAINED IN ITS PROPOSAL ARE INDICATIVE OF THE "CALIBRE OF INDIVIDUAL WHO WILL BE UTILIZED IN THE STAFFING" OF EACH HEALTH UNIT. FURTHER, THE PROTESTER RECITES THE PROBLEMS IT ENCOUNTERED IN ATTEMPTING TO CONTACT THE NURSES WORKING UNDER THE CURRENT CONTRACT REGARDING POSSIBLE EMPLOYMENT WITH HMAA IF IT WERE AWARDED THIS CONTRACT AS AN IMPEDIMENT TO ITS ABILITY TO OFFER EMPLOYMENT COMMITMENTS FROM ANY OF THE NURSES. THE SOLICITATION, HOWEVER, SPECIFICALLY REQUIRES RESUMES AND EMPLOYMENT COMMITMENTS FROM EMPLOYEES TO BE USED BY AN OFFEROR AND DELINEATION OF HOW THE TIME AND SKILLS OF EMPLOYEES WILL BE USED. THEREFORE CANNOT FIND UNREASONABLE COMMERCE'S DETERMINATION THAT HMAA'S PROPOSAL DID NOT PROPOSE AN ADEQUATE STAFFING PLAN THAT WOULD MEET THE NEEDS OF THE HEALTH UNITS.

THE SOLICITATION ALSO REQUIRED PROPOSALS TO DEMONSTRATE MANAGEMENT CAPABILITY TO COORDINATE HEALTH SERVICES AT MULTIPLE LOCATIONS AND TO SCHEDULE PHYSICIAN'S TIME AT ALL LOCATIONS EFFECTIVELY. THE AGENCY FOUND THAT HMAA'S PROPOSAL DID NOT ADEQUATELY DESCRIBE HOW THE HEALTH UNITS WOULD BE MANAGED NOR SHOW THE SIGNIFICANT MANAGEMENT EXPERIENCE WHICH HMAA CLAIMS IT HAS. ALTHOUGH HMAA PROVIDED RESUMES FOR ITS PRINCIPAL OFFICERS TO SHOW THEIR AREAS OF EXPERIENCE, THE PROPOSAL DID NOT DIRECTLY DISCUSS THE APPROACH TO BE TAKEN IN THE COORDINATION AND SCHEDULING OF SERVICES. HMAA RECEIVED 10 OF 30 POSSIBLE POINTS FOR THIS CRITERION.

THE SOLICITATION FURTHER REQUIRED OFFERORS TO STATE PREVIOUS CORPORATE EXPERIENCE AS WELL AS KEY STAFF MEMBERS' EXPERIENCE RELATING TO INDUSTRIAL OR OCCUPATIONAL HEALTH SERVICES. THE EVALUATION COMMITTEE FOUND THAT HMAA'S PROPOSAL LISTED NO PAST CORPORATE EXPERIENCE IN PROVIDING SIMILAR SERVICES AND THAT ITS PRINCIPAL OFFICERS' EXPERIENCE HAD LITTLE RELATIONSHIP TO THE SERVICES REQUIRED FOR THE PROPOSED CONTRACT. CONSEQUENTLY, THE PROTESTER RECEIVED ONLY 8 OF 20 POSSIBLE POINTS FOR EXPERIENCE. THE PROTESTER CONTENDS THAT IT WAS ENTITLED TO A HIGHER SCORE BECAUSE THE COMBINED EXPERIENCE OF ITS CORPORATE OFFICERS CLEARLY EVIDENCES PRIOR MANAGEMENT EXPERIENCE FOR OCCUPATIONAL HEALTH CLINICS IN VARIOUS STATES. HMAA ADMITS THAT IT HAS "NO PRIOR CORPORATE EXPERIENCE" BUT ARGUES THAT THE "ABILITY OF THE CORPORATION TO PERFORM IS NO GREATER OR LESSER THAN THE ABILITY OF THE INDIVIDUALS HEADING AND SUPPORTING THE CORPORATION." ADDITIONALLY, THE PROTESTER CHALLENGES THE EVALUATION COMMITTEE'S FINDING THAT "THE KEY STAFF MEMBERS, THE NURSES" HAD LIMITED OCCUPATIONAL HEALTH EXPERIENCE, STATING THAT THE RESUMES FOR THE THREE UNNAMED NURSES SHOW THAT EACH HAD MORE THAN THE MINIMUM 1-YEAR EXPERIENCE IN THIS FIELD.

A TECHNICAL EVALUATION MUST BE BASED ON INFORMATION SUBMITTED WITH THE PROPOSAL. NO MATTER HOW CAPABLE AN OFFEROR MAY BE, IF IT DOES NOT SUBMIT AN ADEQUATELY WRITTEN PROPOSAL, IT WILL NOT BE CONSIDERED IN THE COMPETITIVE RANGE OR IN LINE FOR DISCUSSIONS IN A NEGOTIATED PROCUREMENT. BASIC TECHNOLOGY INC., B-214489, JULY 13, 1984, 84-2 CPD PARA. 45 AT 3. SINCE THE PROPOSAL CONTAINED ONLY A REPRESENTATIVE SAMPLE OF THE RESUMES FOR TYPICAL NURSES TO BE USED-- UNNAMED REPRESENTATIVES AT THAT; PRESENTED NO CORPORATE EXPERIENCE; AND DID NOT DISCUSS HOW THE HEALTH UNITS' MANAGEMENT WOULD BE COORDINATED, WE CANNOT FIND THAT THIS ASPECT OF COMMERCE'S EVALUATION WAS UNREASONABLE.

IN SHORT, WE FIND THE EVALUATION OF HMAA'S PROPOSAL TO HAVE BEEN REASONABLE. THEREFORE, THE PROTEST IS DENIED.