Matter of: Hospital Klean, Inc. File: B-249391.4 Date: February 3, 1993

B-249391.4: Feb 3, 1993

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Technically acceptable offeror where award on that basis was consistent with solicitation's evaluation criteria. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Third lowest offeror is not an interested party to protest the award to a small disadvantaged business concern because the protester would not be in line for award even if the protest were upheld. Technically acceptable offeror where award on that basis was consistent with solicitation's evaluation criteria. 2. Third lowest offeror is not an interested party to protest the award to a small disadvantaged business concern because the protester would not be in line for award even if the protest were upheld.

Matter of: Hospital Klean, Inc. File: B-249391.4 Date: February 3, 1993

PROCUREMENT Competitive Negotiation Contract awards Administrative discretion Cost/technical tradeoffs Cost savings Agency properly awarded contract to lowest priced, technically acceptable offeror where award on that basis was consistent with solicitation's evaluation criteria. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Third lowest offeror is not an interested party to protest the award to a small disadvantaged business concern because the protester would not be in line for award even if the protest were upheld.

Attorneys

DIGEST

DECISION Hospital Klean, Inc. protests the award of a contract to National Maintenance, Inc. under request for proposals (RFP) No. F33600-92 -R-0078, issued by the Department of the Air Force for hospital aseptic management system (HAMS) services for the San Antonio Area Medical Facilities. Hospital Klean contends that the agency failed to evaluate proposals in accordance with the stated criteria, improperly made award to a small disadvantaged business (SDB) concern, and failed to provide preaward notice of the identity and location of the selected SDB firm.

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

The solicitation, issued on February 3, 1992, contemplated the award of a fixed-priced contract for a base year with four 1-year options for services required to maintain a "total clean" environment in all areas of the facilities, including surgery, labor and delivery, and other critical care areas.

The solicitation provided at clause M-705 that "[a]ll proposals timely received will be evaluated and an award will be made to the lowest priced, technically acceptable, responsible offeror complying with the terms of the [r]equest for [p]roposals." The RFP further stated that each proposal would be evaluated on the following factors, listed "in descending order of importance":

A. Staffing B. Quality and Program/Work Procedures/Scheduling C. Training D. Supplies and Equipment E. Corporate Management Support

The RFP also included by reference the clause set forth at Defense Federal Acquisition Regulation Supplement Sec. 252.219-7006, entitled "Notice of Evaluation Preference for Small Disadvantaged Business Concerns," which states that after all other evaluation factors are applied, each offer from other than an SDB will be further evaluated by adding a factor of 10 percent to its price.

Eight firms submitted initial proposals by the May 8 closing date. After the initial evaluation, the agency determined that all eight proposals were technically acceptable and within the competitive range. Following discussions and a request for best and final offers (BAFO), the agency awarded the contract on September 11 to National Maintenance, Inc. National was determined to be the low, technically, acceptable offeror after the SDB 10-percent factor was added to the lower price of SCH EnterCorp, a large business. Hospital Klean was third low.

Hospital Klean first objects to the award to National on the ground that the agency failed to evaluate proposals in accordance with the stated evaluation criteria. Hospital Klean states that because the RFP listed technical factors "in descending order of importance," it believed a relative assessment of the technical merit of the proposals was to be made and award based upon a technical/price tradeoff. The protester notes that the RFP does not state that the listed technical factors will be used only to determine technical acceptability, and argues that the agency "by not adhering to the stated award criteria, converted an RFP seeking relative technical merit to one that does not."

While the RFP could have been clearer, we think that the evaluation conducted by the agency--which involved the determination of the technical acceptability of each proposal and the award of a contract on the basis of low price--follows the most reasonable reading of the RFP evaluation scheme and was therefore proper. The RFP specifically states that "award will be made to the lowest-priced, technically acceptable, responsible offeror" and then lists the technical evaluation criteria which were to be used to determine technical acceptability. It is true that the listing of the technical factors in descending order of importance is consistent with the evaluation of the relative technical merit of proposals. Nevertheless, where, as here, the lead paragraph of the evaluation scheme specifically states that the award will be made to the lowest priced, technically acceptable offeror, we think the most reasonable reading of the RFP is that award is to be made on that basis. We do not believe that it is reasonable to transform this RFP to one based on a relative evaluation and a cost/technical tradeoff because of the single paragraph cited by the protester. Moreover, if the protester was confused by the wording of the evaluation scheme, it was required to protest prior to the time for submission of initial proposals. Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(1).

We have, for the reasons set forth above, concluded that the evaluation was conducted properly. The record shows that, pursuant to the evaluation, Hospital Klean's offer was the second-low acceptable offer submitted by a non-SDB firm and the third low of all the acceptable offers received. Under these circumstances, Hospital Klean is not an interested party to raise issues regarding the SDB evaluation which resulted in the award to National.

Under the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3551- 3556 (1988), only an "interested party" may maintain a protest before our Office. An interested party is defined as an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. 4 C.F.R. Sec. 21.0(a). A protester is not an interested party where it would not be in line for contract award if its protest were sustained. ECS Composites, Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD Para. 7.

Here, as discussed above, there is an intervening offeror, SCH, between the protester and the awardee. Because SCH, a non-SDB firm, was determined to be technically acceptable and offered a price lower than Hospital Klean's (and neither Hospital Klean nor any other offeror has challenged SCH's acceptability), SCH, not Hospital Klean, would be in line for award should National be determined ineligible for award because of a flaw in the SDB evaluation process. Hospital Klean therefore lacks the direct economic interest required to maintain the SDB issues of this protest.

The protest is denied in part and dismissed in part.