B-229650.6, B-229650.7, Mar 16, 1988, 88-1 CPD 278

B-229650.6, B-229650.7, Mar 16, 1988, 88-1 CPD 278

PROCUREMENT - Competitive Negotiation - Technical Evaluation Boards - Qualification - GAO Review DIGEST: 1. Since the selection of evaluators is essentially within the agency's discretion, the General Accounting Office will not appraise the qualifications of such individuals absent a showing of possible fraud, conflict of interest or actual bias on the part of the evaluators. PROCUREMENT - Competitive Negotiation - Offers - Evaluation Errors - Allegation Substantiation 2. Protest of scoring of proposals is denied where record indicates that the evaluation was reasonable.

Paul G. Koukoulas, Bernard burgin, Ernest S. Cross, Jr., James J. Nolan, Morris W. Steinberg, Walter Welzant, Philip Whittlesey:

Doctors Paul G. Koukoulas, Bernard Burgin, Ernest S. Cross, Jr.; James J. Nolan, Morris W. Steinberg, Walter Welzant, and Philip Whittlesey protest the rejection of their offers under request for proposals (RFP) No. SSA- RFP88-0017, issued by the Social Security Administration (SSA) for medical consultant services in general internal medicine. The doctors object to the scoring of their proposals and to the composition of the technical evaluation panel. We deny the protests in part and dismiss them in part.

The services solicited consisted primarily of reviewing medical disability claims and providing written opinions on the claims. The RFP contemplated the award of multiple indefinite-quantity contracts at a specified hourly rate of compensation. Each contract was to include both the minimum and the maximum number of hours that the physician would be available; the physician would be guaranteed payment for the minimum number of hours and would be obligated to perform up to the maximum number if requested to do so by the government. SSA anticipated that since the maximum allowable number of hours per physician for the base period was 1,000 hours, it would need to make a minimum of 14 awards to cover its estimated requirement of 14,000 hours of services. In the event that the maximum availability of any of the 14 top ranked offerors was less than 1,000 hours, additional contracts would be awarded until the total hours equaled 14,000.

The RFP provided for award to those responsible offerors whose proposals provided the highest technical value to the government. Since the hourly rate of compensation for the services was predetermined, price was not a consideration. The evaluation criteria and their relative weights were as follows:

"Relative Weight

(Maximum Points)

"a. Disability Experience 40

"(1) Past experience of offerors in the review of SSA disability case files and interpretation of regulations and policies in the Social Security (at the Federal and/or State level) disability programs. (NOTE: In order to weigh this factor, the Government reserves the right to use its evaluation of a physician's prior performance in the Social Security program.) (0-40); or

"(2) Experience in the review of evidence and interpretation of regulations and policies in any Federal disability program other than Social Security disability program. (0-20); or

"(3) Experience in the review of evidence and interpretation of regulations and policies in any other disability program (e.g., State Workers Compensation, programs in private industry). (0-10)

"b. Additional Training Above that Required for Minimum Requirements 25

Offerors must provide evidence of additional specific or program pertinent training in appropriate specialty.

"c. Clinical Experience 15

Quality, quantity of offeror's past and current clinical experience in this specialty, in addition to the training required for "Minimum Requirements,"

"d. Availability of Physician 12

"e. Experience in Research and Studies 8

Experience in conducting research and studies relevant to disability programs.

TOTAL 100"

Twenty-eight proposals were received by the closing date of May 22, 1987. Awards were made to the 16 highest ranked offerors on September 28. The protesters' proposals were ranked 17th through 21st, 23rd and 24th. The unsuccessful offerors were notified by letter dated October 20.

Doctors Koukoulas, et al., object to the fact that two of the three members of the technical evaluation panel were not doctors. The protesters contend that the non-doctors were not qualified to evaluate the offerors' qualifications. SSA responds that the panel members were not called upon to evaluate the work of the physicians, but only their training and experience. SSA further indicates that the non-medical panel members are familiar with the disability program, its laws, regulations, and policies, as well as the American Medical Association's requirements for board certification.

The selection of individuals to serve as proposal evaluators is essentially a matter within the discretion of the agency, and we will not appraise the qualifications of such individuals absent a showing of possible fraud, conflict of interest, or actual bias on the part of the evaluators. Training and Management Resources, Inc., B-220965, Mar. 12, 1986, 86-1 CPD Para. 244. While it is clear that the protesters are unhappy with the agency's use of non-doctors in the evaluation process, there is no regulation or law of which we are aware that requires the use of physicians to evaluate proposals for these services. Further, as explained in greater detail below, there is nothing in the record to support a conclusion that the evaluators acted improperly.

The protesters also object to the scoring of their proposals. Specifically, the doctors contend that they were not awarded the number of points that they deserved under the criteria of disability experience and additional training.

Since the evaluation of proposals is the function of the contracting agency, our Office's review of an allegedly improper evaluation is limited to a determination of whether the evaluation was fair and reasonable and consistent with the stated evaluation criteria Delany, Siegel, Zorn & Assocs., B-224578.2, Feb. 10, 1987 87-1 CPD Para. 144. We will question the contracting agency's determination concerning the technical merit of a proposal only upon a clear showing of unreasonableness. Lewis-Shane, CPA, B-221875, June 4, 1986, 86-1 CPD Para. 522.

The record does not support the protesters' allegation that the scoring of their proposals was unreasonable or unfair. Doctors Koukoulas, et al., contend that in view of their length of experience working as consultants in the disability program, which ranged from a minimum of 20 years to a maximum of 27 years, and the fact that none of them had ever been informed that his work was unsatisfactory, their scores for Social Security disability experience, which ranged from 14 to 24 (out of 40), were unduly low. The RFP did not indicate that the length of a physician's service would determine his score under this subcriterion, however. Rather, the solicitation made clear that the agency evaluation of a physician's prior performance in the Social Security Program would be used. Furthermore, the scores received by the protesters under this subcriterion were not substantially different from the scores received by the awardees, with the protesters receiving an average score of 19.1 and the awardees an average score of 21.7. The major difference between the two groups was not that the protesters received lower scores for their Social Security disability program experience; it was instead that none of the protesters received additional points for experience in other disability programs (i.e. under subcriteria (a)(2) and (3)) while a significant number of the awardees did.

We also find no support for the protesters' argument that their scores under the criterion additional training were unfairly low. The protesters question how four of them could have received a score of zero under this criterion given that each physician must certify to the Maryland State License Board that he has obtained at least 60 hours of continued medical education each year in order to have his license renewed.

Our review of the technical panel's evaluation indicates that offerors received points in the category of "additional training" only for postdoctoral training beyond the minimum level of 3 years required by the RFP and for participation in courses specifically relating to the Social Security disability program. None of the four protesters who received a score of zero for the additional training factor indicated in his proposal that he had received more than 3 years of postdoctoral training, and only one of the four mentioned attendance at SSA disability program courses. Furthermore, the doctor who did mention his attendance at SSA disability program courses, Dr. Koukoulas, did so only in general terms (i.e., "participated in numerous studies, programs and seminars for many years since 1968 at the Federal level of the Social Security Disability Program"; the offerors who received points specified the particular courses that they had attended. Moreover, even assuming that Dr. Koukoulas should have received some points for this generalized summary of his training, we note that the evaluators appear to have awarded no more than 3 points to any offeror for SSA Disability Program courses and 3 points would have been insufficient to raise his technical score of 45 into the top 16. The 16th highest technical score was 60.

The protesters further contend that differences between their scores under this RFP and their scores under the previous solicitation for these services warrant investigation. There is nothing in the record to show that the seven protesters in fact received higher scores under the previous solicitation. The agency reports that 23 contracts were awarded under the previous RFP, as compared with 16 under this solicitation. Moreover, the protesters have the obligation of presenting their own cases. We do not conduct investigations for the purpose of establishing the validity of a protester's argument. Interstate Equipment Sales, B-225701, Apr. 20, 1987, 87-1 CPD Para. 427.

The protesters further complain that they were not notified that their proposals had been rejected until 3 weeks after the date of contract award. SSA explains that this delay was due to the illness of the contract specialist and an extremely heavy workload. While the delay was unfortunate, we will not consider this basis of protest since tardiness in notifying unsuccessful offerors is a procedural defect that does not affect the validity of the contract award. Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD Para. 73.

Finally, one of the protesters, Dr. Nolan, alleges that the evaluators discriminated against him on the basis of age in rejecting his proposal. The protester has offered no evidence that he was in fact discriminated against on the basis of age. While it is correct that he, as well as four of the other protesters, are in their late sixties or seventies, it is also true that 8 of the 16 awardees are over 60 years old. Since the protester has failed to meet his burden of affirmatively proving his allegation of discrimination, we deny this basis of protest. Spruill Realty/Construction Co., B-209148.2, Jan. 31, 1983, 83-1 CPD Para. 102.

The protests are dismissed in part and denied in part.