Sunrise Medical HHG, Inc.
Highlights
Sunrise Medical HHG, Inc. protests the award of a contract to Invacare Corp. under request for proposals (RFP) No. VA-797-NC-06-RP-0001, issued by the Department of Veterans Affairs (VA) for provision of manual wheelchairs. Sunrise contends that the VA unreasonably evaluated offerors' technical and past performance proposals, and that the agency improperly refused to accept the protester's submission of a late proposal modification that lowered its price.
B-310230, Sunrise Medical HHG, Inc., December 12, 2007
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release.
Decision
Matter of: Sunrise Medical HHG, Inc.
Leigh T. Hansson, Esq., Gregory S. Jacobs, Esq., and Steven D. Tibbets, Esq., Reed Smith LLP, for the protester.
Edward O. Patton, Esq., Mansour, Gavin, Gerlack & Manos Co., LPA, for Invacare Corp., an intervenor.
Melbourne A. Noel, Esq., Department of Veterans Affairs, for the agency.
Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest is denied where the agency's evaluation of offerors' technical proposals and past performance were either reasonable or did not prejudice the protester.
2. Protest is denied where agency reasonably did not accept protester's late proposal submission because protester was not the otherwise successful offeror.
DECISION
Sunrise Medical HHG, Inc. protests the award of a contract to Invacare Corp. under request for proposals (RFP) No. VA-797-NC-06-RP-0001, issued by the Department of Veterans Affairs (VA) for provision of manual wheelchairs.
BACKGROUND
The RFP sought proposals to provide manual wheelchairs and accessories for the VA's Prosthetic Clinical Management Program. The RFP anticipated award of a contract with a 1-year base term, and four 1-year options. Offerors were advised that award would be made to the responsible offeror whose proposal was most advantageous to the Government, price and other factors considered. RFP at 46. The RFP identified four factors for consideration in the award decision, which were listed in decreasing order of importance as follows: technical, price, quality/past performance, and small disadvantaged business (SDB) participation.
The agency received five proposals by the
On
As relevant to the protest, the VA evaluated the offerors' test data demonstrating their compliance with standards promulgated by ANSI/RESNA, a national testing standards organization. The VA rated the Sunrise LXE model test data under the AMSI/RESNA subfactor as poor, based on the following evaluation:
Testing appears performed and passed. The 11 year old testing report was unsigned. All testing performed was done by Sunrise QA personnel (In-house vs. independent lab) which is acceptable but preferred method of testing would be by independent lab which would have resulted in a higher score. 11 year old report calls into question whether the current durability of the LXE can be meaningfully authenticated by model built this far in the past.
AR, Tab 9B, Price Negotiation Memorandum, at 9.
The agency rated the Sunrise Q2 model test data under the AMSI/RESNA subfactor as acceptable, based on the following evaluation:
Testing appears performed and passed. Six year old unsigned report was submitted. Based on serial numbers, chairs were tested before drum and curb drop fatigue tests were passed. All testing performed was done by Sunrise QA personnel (In-house vs. independent lab) which is acceptable but preferred method of testing would be by independent lab which would have resulted in a higher score.
The agency rated the Invacare Patriot Plus model test data under the AMSI/RESNA subfactor as good, based on the following evaluation:
Testing appears performed and passed. 1 1/2 year old testing report with signature was submitted. All testing performed was done by Invacare QA personnel (In-house vs. independent lab) which is acceptable but preferred method of testing would be by independent lab which would have resulted in a higher score but because the report was signed Invacare received a rating higher than acceptable.
Also, as relevant to the protest, offerors were required to submit 10 past performance references, representing an offeror's highest sales of wheelchairs to VA medical centers for the prior 36 months. RFP at 40. Invacare submitted 10 past performance references, and the CO sent surveys to all of the references. AR, Tab 9B, Price Negotiation Memorandum, at 20. Despite three requests to complete the surveys, the CO did not receive any responses from Invacare's references.
The VA's final evaluation of the offerors' proposals was as follows:
| | INVACARE | |
TECHNICAL | ACCEPTABLE | ACCEPTABLE | GOOD |
-- Quality Design and Workmanship | Acceptable | Acceptable | Good |
-- Performance | Good | Acceptable | Good |
-- Portability | Acceptable | Acceptable | Acceptable |
-- ANSI/RESNA Testing | Acceptable | Poor | Good |
-- Warranty | Good | Good | Acceptable |
QUALITY/PAST PERFORMANCE | VERY GOOD | VERY GOOD | EXCELLENT |
SDB PARTICIPATION | ACCEPTABLE | ACCEPTABLE | EXCELLENT |
PRICE | $17,778,402 | $14,535,189 | $14,196,220 |
AR, Tab 9B, Price Negotiation Memorandum, at 5, 14, 16, 18, 23.[1]
Additionally, the CO noted in her responsibility determination that a Dunn and Bradstreet (D&B) report regarding Invacare identified 8 pending lawsuits against Invacare, and that 4 of these are employee actions and 4 for product liability.
Based on the evaluation of the offerors' proposals, the CO, who was also the source selection authority, selected Invacare's proposal for award.
The agency advised
DISCUSSION
As a general matter, the evaluation of an offeror's proposal is a matter within the agency's discretion, since the agency is responsible for defining its needs and the best method for accommodating them. U.S. Textiles, Inc., B-289685.3,
Past Performance Evaluation
There is no legal requirement, however, that an agency consider all references in evaluating an offeror's past performance. ITS Servs., Inc., B-298941, B-298941.2,
Here, the VA attempted to contact all 10 references at least three times. AR, Tab 9B, Price Negotiation Memorandum, at 20. On this record, we conclude that the agency made a reasonable effort to contact Invacare's references, and that the number of surveys received did not preclude the agency from rating Invacare's past performance as excellent, based on survey information provided by the references that responded.
Second,
The evaluation of past performance, including the agency's determination of the relevance and scope of an offeror's performance history to be considered, is a matter of agency discretion that we will not find improper unless unreasonable, or inconsistent with the solicitation criteria or procurement statute or regulation. Standard Comms., Inc., B-296972,
Late Proposal Submission
(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is late and will not be considered . . .
(ii) However, a late modification of an otherwise successful offer, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.
FAR sect. 52.212-1(f).[6]
The protester contends that because its late proposal submission lowered its price below that proposed by Invacare,
Under negotiated procurements, the FAR provides generally that a proposal received after the time set for receipt shall not be considered. FAR sect. 15.208(b)(1). Our Office has long held that the late proposal rule alleviates confusion, ensures equal treatment of offerors, and prevents one offeror from obtaining a competitive advantage as a result of being permitted to submit a proposal later than the deadline set for all competitors. Tishman Constr. Corp., B-292097,
With regard to the protester's arguments, an offeror cannot make itself the otherwise successful offeror by submitting a late proposal modification; instead the offeror must already be the offeror in line for award prior to the time the late proposal modification is submitted. Phyllis M. Chestang, B-298394.3,
Here, the agency evaluated the timely-submitted proposals and selected Invacare, and not
ANSI/RESNA Test Data
First,
To succeed in its protest, the protester must demonstrate not only that the agency failed to evaluate proposals in accordance with the solicitation and applicable regulations, but also that the failure could have materially affected the outcome of the competition. McDonald Bradley, B-270126,
The second and third arguments raised by Sunrise are that the agency unreasonably found weaknesses in Sunrise's test data based on the age of the test reports, and because the test reports were not signed. The VA and the intervenor argue, however, that both of these arguments are untimely because although the debriefing provided by the agency disclosed these issues, the protester did not raise them until it filed supplemental protest grounds in its comments on the agency report. In this regard,
The written debriefing provided by the agency clearly identified the two grounds of protest that the protester raised for the first time in its comments on the agency report, as follows:
[Q2] The weakness and/or deficiencies found under the factor of ANSI/RESNA: Six year old unsigned report was submitted. Based on serial numbers, chairs were tested before drum and curb drop fatigue tests were passed. All testing preformed was done by Sunrise QA personnel (In-house vs. independent lab) which is acceptable but preferred method of testing would be by independent lab which would have resulted in a higher score. Sunrise
[LXE] The weakness and/or deficiencies found under the factor of ANSI/RESNA: 11 year old testing report was submitted. All testing performed was done by Sunrise QA personnel (In-house vs. independent lab) which is acceptable but preferred method of testing would be by independent lab. 11 year old report calls into question whether the current durability of the LXE can be meaningfully authenticated by model tested this far in the past. Sunrise
AR, Tab 5,
Our Bid Protest Regulations require protests based on other than solicitation improprieties to be filed within 10 days of when the protester knew or should have known its bases of protest. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(2). Where a protester initially files a timely protest, and later supplements it with independent grounds of protest, the later-raised allegations must independently satisfy the timeliness requirements, since our Regulations do not contemplate the unwarranted piecemeal presentation or development of protest issues. University Research Co., LLC, B-294358.8 et al.,
Furthermore, even if we were to agree with the protester that the signature and test date issues were meritorious, the record does not demonstrate that
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] The agency used an evaluation scheme of exceptional, good, acceptable, and poor.
[2] The protester also argued in its protest that the VA improperly determined that the
[3] Although the protester raised this argument as a supplemental protest ground in its comments on the agency report, we consider it timely filed to the extent that it challenges the way in which the VA chose to evaluate information regarding Invacare, i.e., the decision to consider the product liability suits in the context of responsibility, rather than past performance.
[4] The protester notes the solicitation stated that the VA may use information from the public domain in the evaluation of offerors' past performance. RFP at 47. This statement, however, does not require the agency to do so, nor does it change the agency's discretion to consider the relevance of past performance information.
[5]
[6] The clause at FAR sect. 52.212-1(f)(2)(ii) contains nearly identical language to the late proposal provisions at FAR sect. 15.208, which is applicable to negotiated procurements. Although the cases cited herein primarily address the provision in FAR part 15, we consider the two FAR provisions to be interchangeable for purposes of this protest allegation.
[7]
[8] In its response to these allegations, the agency also notes that its criticism of the age of the Sunrise LXE 11-year-old test data was based on the fact that the ANSI/RESNA test standards were revised in 1998, thereby calling into question the validity of the tests conducted under the earlier test standards.