Matter of: NP Medical Group, Inc. File: B-254522 Date: November 19, 1993
B-254522: Nov 19, 1993
Training of their proposed medical assistants unfairly favored the incumbent contractor is untimely where the requirement was apparent on the face of the solicitation and the objection was first filed after the closing time for receipt of initial proposals. PROCUREMENT Competitive Negotiation Offers Technical acceptability Negative determination Propriety Protest that it was improper for agency to find protester's proposal technically unacceptable due to the protester's failure to submit required information about its proposed medical assistants. Is denied because an agency's actions under other procurements do not affect the propriety of its actions under a different procurement. PROCUREMENT Bid Protests Allegation Abandonment PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Contention that it was improper for the agency to exclude the protester's proposal from the competitive range.
Matter of: NP Medical Group, Inc. File: B-254522 Date: November 19, 1993
PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties Protest that solicitation requirement that offerors submit specific information in their proposals concerning availability, past experience, and training of their proposed medical assistants unfairly favored the incumbent contractor is untimely where the requirement was apparent on the face of the solicitation and the objection was first filed after the closing time for receipt of initial proposals. PROCUREMENT Competitive Negotiation Offers Technical acceptability Negative determination Propriety Protest that it was improper for agency to find protester's proposal technically unacceptable due to the protester's failure to submit required information about its proposed medical assistants, based on the protester's contention that in prior procurements for similar services the agency has not required submission of such information, is denied because an agency's actions under other procurements do not affect the propriety of its actions under a different procurement. PROCUREMENT Bid Protests Allegation Abandonment PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Contention that it was improper for the agency to exclude the protester's proposal from the competitive range, based on its failure to submit required information about its proposed medical assistants, in light of other alleged technical strengths in the proposal, is dismissed as an untimely piecemeal allegation when it could have been included in initial protest filing but was not raised until the protester's comments on the agency report, approximately 1 month after the protester was informed about the reason supporting the agency's rejection of its proposal.
We deny the protest in part and dismiss it in part.
The RFP, issued on March 19, 1993, contemplated the award of a firm, fixed-price contract to the low-priced, technically acceptable offeror. Section L of the solicitation contained instructions regarding the preparation of the business and technical proposals. Business proposals were required to contain, among other things, the offeror's proposed price and a signed and dated Health Care Worker Certificate of Availability for each proposed medical assistant.
Section L.1(b) specifically advised offerors that their technical proposals should include, among other things, the following documentation:
1a. Proof of successful completion of a medical assistant training course within the preceding 12 months; or
b. Proof of a current, unrestricted license to practice as a Licensed Vocational Nurse/Licensed Practical Nurse in at least one state, the District of Columbia, Puerto Rico, Guam, or the U.S. Virgin Islands; or
c. Proof of certification as a hospital corpsman and at least 18 months experience as a hospital corpsman obtained within the preceding 36 months.
2. Letters of recommendation from 3 former employers, to include at least one recommendation from a practicing physician or registered nurse, attesting to the health care worker's clinical skills.
The RFP called for evaluation of the technical proposal to determine acceptability and advised offerors that any proposal that failed to include required information might be determined to be "incomplete and [might] not warrant further consideration."
The Navy received 14 proposals, including NP's, by the May 14 closing date. After initially reviewing the proposals, the agency discovered that NP's business and technical proposals failed to contain required information. For example, NP's business proposal did not contain Health Care Worker Certificates of Availability for each of its proposed assistants, and NP's technical proposal did not contain recommendations submitted on behalf of its proposed medical assistants or documentation indicating that the assistants met the training and experience requirements set forth in the solicitation. Rather, NP's technical proposal contained only a brief synopsis of the principals of the corporation, none of whom would perform the services required by the RFP, and a generic position description parroting the RFP requirements for medical assistants. As a result, the Navy concluded that it could not assess whether the backgrounds, work experience, and clinical skills of NP's proposed medical assistants satisfied the RFP's requirements; by letter dated August 10, the Navy informed NP that its proposal had been found technically unacceptable. This protest followed.
NP contends that the rejection of its proposal as technically unacceptable based on its failure to furnish required information about its proposed medical assistants was improper. The protester argues that the agency's reliance on its failure to supply the required information is misplaced and should not have been the decisive factor in determining whether its proposal was acceptable because the Navy has awarded the firm three contracts for similar services in the past without requiring the submission of such credentials for proposed personnel. Finally, the protester contends that the requirement to supply these credentials prior to award results in an unfair advantage to the incumbent contractor.
To the extent that the protester alleges that the RFP should not have required offerors to submit pre-award documentation regarding the experience and training of its proposed medical assistants, the allegation is untimely. Since the RFP plainly stated that the business and the technical proposals should contain specific experience and training information and recommendations for each proposed medical assistant, the protester should have raised its objection to these requirements prior to the time set for receipt of proposals. 4 C.F.R. Sec. 21.2(a)(1) (1993); Kenneth L. Latham, B-245137, Dec. 18, 1991, 91-2 CPD Para. 559.
With regard to the rejection of the protester's proposal, we will review an evaluation to ensure that it was reasonable and consistent with the solicitation and applicable procurement laws and regulations. Discount Machinery & Equip., Inc., B-249321, July 22, 1992, 92-2 CPD Para. 44. Offers that are technically unacceptable as submitted and would require major revision to become acceptable are not required to be included in the competitive range for discussion purposes. Id.
Here, the record establishes, and the protester essentially concedes, that the protester failed to submit any information addressing the experience and training of its proposed medical assistants. Since the RFP required offerors to submit a business proposal showing the availability of proposed personnel and a technical proposal adequate on its face to demonstrate that the proposed medical assistants met the agency's minimum personnel qualifications, it was clearly NP's responsibility to submit business and technical proposals that were adequately written. Marvin Eng'g Co., Inc., B-214889, July 3, 1984, 84-2 CPD Para. 15. A contracting agency has no obligation to include a proposal in the competitive range and give the offeror an opportunity to furnish missing information where, as here, the offeror submits an initial proposal that is technically unacceptable due to the omission of material information. Union Natural Gas Co., B-231461, Sept. 13, 1988, 88-2 CPD Para. 231. Absent such information, the agency had no way of determining the acceptability of the offeror's proposed personnel.
The protester's reliance on the fact that the Navy has awarded contracts to it in the past without requiring submission of credentials for its proposed medical assistants prior to award is misplaced. Each procurement action is a separate transaction and the action taken under one is not relevant to the propriety of the action taken under another procurement for the purposes of a bid protest. Westbrook Indus., Inc., B-248854, Sept. 28, 1992, 92-2 CPD Para. 213. The fact that the agency in unrelated procurements did not require evidence of relevant experience and training does not affect the protester's obligation to furnish this information in this case.
In its comments on the agency report, the protester for the first time argues that the agency's rejection of its proposal was unreasonable because the agency did not take into account technical strengths present in its proposal. In support of its position, the protester claims that the agency ignored the fact that it provides emergency physicians for the hospital closest to the Naval Medical Clinic and that its onsite medical director--through supervision--would ensure that its proposed medical assistants possessed the necessary qualifications.
The protest system established by the Competition in Contracting Act of 1984 and implemented by our Regulations is designed to provide for expeditious resolution of protests with only minimal disruption to the procurement process. See 31 U.S.C. Sec. 3554 (1988). That system cannot tolerate piecemeal protest filings that further disrupt the process. See Source AV, Inc., B-244755, Sept. 10, 1991, 91-2 CPD Para. 237. Accordingly, a protest must raise all available protest arguments in its initial protest filing. Id.
NP did not meet this requirement. NP concedes in its initial protest that its rejection letter, dated August 10, advised the firm that its proposal was rejected due to its failure to supply information with respect to its proposed medical assistants; it also concedes that shortly after receipt of that letter a Navy employee confirmed that its proposal was rejected because the firm failed to submit credentials for all of its proposed medical assistants. Since the protester knew or should have been aware of its bases to support its argument concerning the alleged improper rejection of its proposal at the time it initially challenged the agency's actions, NP was required to raise this additional ground at that time; it may not raise some grounds about the alleged improper evaluation at one time and reserve other grounds for a later date. The fact that the allegations concern the evaluation of its proposal does not eliminate the prohibition against piecemeal protesting.
In any event, as discussed above, the agency properly rejected NP's proposal based on the lack of critical information concerning the qualifications of its medical assistants. Nothing in NP's proposal remedied this material omission.
The protest is denied in part and dismissed in part.
1. While the protest was pending at our Office, the agency evaluated the best and final offers submitted by the 10 offerors in the competitive range and ultimately made award to MedTemps Inc. on October 15.