Matter of: CardioMetrix File: B-254561 Date: December 27, 1993
B-254561: Dec 27, 1993
PROCUREMENT Competitive Negotiation Requests for proposals Terms Ambiguity allegation Interpretation Protest that solicitation is defective because it does not provide sufficient information to allow offerors to compete on an equal basis is denied where the information provided reasonably describes the services required and is sufficient to permit offerors. Award is to be made to the low-priced. CardioMetrix's protest that the RFP should have been set aside for small business is based solely on its belief that the incumbent contractor is also a self-certified small business concern. CardioMetrix essentially alleges that since it was likely that NCUA would receive offers from at least two small business firms with the capability to perform the contract (that is.
Matter of: CardioMetrix File: B-254561 Date: December 27, 1993
PROCUREMENT Competitive Negotiation Requests for proposals Terms Ambiguity allegation Interpretation Protest that solicitation is defective because it does not provide sufficient information to allow offerors to compete on an equal basis is denied where the information provided reasonably describes the services required and is sufficient to permit offerors, using their expertise, to adequately estimate the cost of providing the required services.
We deny the protest.
NCUA issued the RFP on July 20, 1993, with an August 19 closing date for receipt of offers. The RFP contemplates the award of a fixed-price, indefinite-quantity contract for a base year and three 1-year options. It requires the successful contractor to provide employee health examinations as set forth in Section C of the RFP, the performance work statement (PWS). The PWS describes the health examinations available to the various NCUA employee groups, the frequency with which those health examinations should occur (for example, annually, bi-annually or tri- annually), and the various tests which the health examinations should include. The PWS listed the approximate number of NCUA employees eligible to elect the health examinations but did not include any historical data on the number of examinations and tests previously performed on its employees. The RFP requires offerors to propose a fixed unit price for stated categories of physical examinations; award is to be made to the low-priced, technically acceptable offeror.
By letter dated August 17, CardioMetrix requested that NCUA correct alleged defects in the RFP. These alleged defects included: (1) the failure to set aside the procurement; (2) the lack of historical data on the annual number of examinations and diagnostic tests; (3) the failure to define "duty station"; and (4) the method of price evaluation. By letter dated August 18, the contracting officer responded to each of CardioMetrix's complaints. That same day, however, CardioMetrix filed its protest with our Office asserting the identical grounds of protest.
CardioMetrix's protest that the RFP should have been set aside for small business is based solely on its belief that the incumbent contractor is also a self-certified small business concern. CardioMetrix essentially alleges that since it was likely that NCUA would receive offers from at least two small business firms with the capability to perform the contract (that is, from CardioMetrix and the incumbent), the solicitation should have been set aside for exclusive small business participation. However, the previous contract for these services was not acquired on the basis of a small business set-aside and the incumbent, Executive Health Group, Inc. (EHG) is, in fact, a large business. Thus, the record before us does not establish that NCUA was required to set aside its requirement.
CardioMetrix next complains that the solicitation is defective because NCUA has failed to provide the best available data to allow offerors to compete on an equal basis. The protester specifically asserts that the RFP does not provide offerors with any historical data regarding the annual number of examinations and diagnostic tests NCUA employees have elected to use. The protester also alleges that the RFP should define an employee's "duty station" as that term is used in the solicitation and should establish the maximum allowable distance between the employee's duty station and the contractor's facility. According to the protester, without this information it must price its proposal based on certain "worst case" assumptions and its prices will not be competitive with EHG which has access to this information because of its incumbent status.
In its response, NCUA explained that participation in the health program is voluntary and it cannot predict which employees will participate as the age and composition of the staff changes from year to year. NCUA further stated that it does not maintain records regarding the type of examinations or the various tests employees have elected to take and thus cannot provide that type of historical data. NCUA also stated that the term "duty station" in the RFP referred to the employee's home which is generally located within a day's drive of a credit union, and that the employees were scattered throughout the country. NCUA further advised that the services to be provided should be available "within a fair and reasonable distance for the locality." With regard to the evaluation of price proposals, NCUA explained how the price factor points listed in the solicitation will be assigned.
CardioMetrix's comments on the agency report do not respond to NCUA's rebuttal; instead, the protester seeks a decision on the basis of the record before us.
Generally, the procuring agency must provide sufficient detail in a solicitation to permit competition on a relatively equal basis. C3, Inc., B-241983.2, Mar. 13, 1991, 91-1 CPD Para. 279. There is no requirement that a solicitation be so detailed as to remove every uncertainty from the minds of prospective offerors and to eliminate every performance risk for the contractor. T&S Prods., B-244986, Oct. 29, 1991, 91-2 CPD Para. 398.
CardioMetrix has not demonstrated that the solicitation was inadequate. First, while historical data was not provided, the RFP contains the approximate number of employees eligible to elect a particular examination/test package. Since proposals were to be evaluated and the contractor reimbursed on the basis of fixed prices per examination package, we see no reason why offerors, knowing what procedures and tests make up each package and further knowing potentially how many of each examination package it might have to provide throughout the country, could not reasonably determine appropriate pricing for each package. In this regard, we point out that historical data, if available, would be potentially useful only as a guide--there would be no guarantee that the new contractor would have the same experience as the predecessor contractor, and thus an offeror, even with historical data, would still have to take that risk into account in determining its pricing.
As for the term "duty station," we think NCUA provided a reasonable explanation of that term and of what it required in connection therewith so that offerors could fashion an appropriate approach to meeting NCUA's needs. Similarly, NCUA clarified how price would be evaluated.
On this record, we conclude that the RFP is not defective as it reasonably describes the required services and provides adequate information to permit potential offerors, using their expertise, to take into account any uncertainties or risks in preparing their offers. See AAA Eng'g & Drafting, Inc., B-236034, Oct. 31, 1989, 89-2 CPD Para. 404.
The protest is denied.
1. NCUA is an independent agency within the executive branch, 12 U.S.C. Sec. 1752a(a) (1988), and is thereby subject to our bid protest jurisdiction. See Schreiner, Legge & Co., B-244680, Nov. 6, 1991, 91-2 CPD Para. 432; see also Computer Support Sys., Inc., 69 Comp.Gen. 644 (1990), 90-2 CPD Para. 94.