Matter of: Life Oxygen & Health Services, Inc. File: B-282243 Date: June 18, 1999

Matter of: Life Oxygen & Health Services, Inc. File: B-282243 Date: June 18, 1999

DIGEST

Attorneys

DECISION

Life Oxygen & Health Services, Inc. protests the award of a contract to Rotech Medical Corporation, also known as Resp-A-Care, Inc., under request for proposals (RFP) No. 249-01-99, issued by the Department of Veterans Affairs (VA) for home oxygen services at seven VA medical centers located in Tennessee, West Virginia, and Kentucky. Life Oxygen principally challenges the evaluation of its and the awardee's proposals.

We deny the protest.

The RFP, issued on October 20, 1998, contemplated the award of a fixed-price contract for a base year, with four 1-year options, to furnish all rental, delivery, supplies, oxygen, and related services. RFP at 3. Award was to be made to the responsible firm whose offer conforms to the solicitation and is most advantageous to the government, based on the following (with available points out of 100 total): (1) prior experience and demonstrated capability (30 points); (2) quality assurance (30 points); (3) past performance (20 points); and (4) cost (20 points). RFP at 51; Contracting Officer's Statement at 1. With regard to past performance, offerors' proposals were to be evaluated on the basis of past performance questionnaires from the references listed in each offeror's proposal. RFP at 50; Agency Report at 2. The RFP required offerors to provide no more or less than three references for verification of past performance. RFP at 50.

Among the proposals received by the amended December 30 closing date were Life Oxygen's and Resp-A-Care's; both were included in the competitive range. Agency Report at 2. Following written discussions on the technical proposals, the agency requested and received best and final offers (BAFO). The agency then held price discussions and requested and received revised BAFOs. The technical evaluation team (TET) evaluated the revised BAFOs as follows:

Technical Price score

Life Oxygen 87.7 $9,087,516.00

Resp-A-Care 90.5 12,547,084.32

Agency Report encl. 17, Price Negotiation Memorandum, at 2, 3. Based on the prices and technical scores, the VA made award to Resp-A-Care. Id. at 2.

PAST PERFORMANCE

Life Oxygen's proposal received 13.7 of the 20 available points under the past performance factor. Life Oxygen maintains that it should have received a higher score in light of the favorable past performance questionnaire submitted by the [deleted] of Mariner Health Care, one of the references listed in Life Oxygen's proposal. Agency Report encl. 12, Life Oxygen's BAFO Evaluation, at 3; Protest at 1; Comments at 2.

In reviewing an agency's evaluation of proposals, we will not reevaluate the proposals; rather, we will examine the record only to ensure that the evaluation was reasonable and in accordance with the stated evaluation scheme. Development Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD Para. 54 at 4.

The evaluation in this area was reasonable. The questionnaire to which the protester refers covered a contract under which Life Oxygen provided durable medical equipment (DME), a requirement which (the agency advised our Office during a conference call) is not as involved as an oxygen supply contract such as the one here. Agency Report at 3 n.4, 5 n.9. The agency reports that it received two questionnaires signed by Mariner's [deleted], one for DME and one for oxygen supply,
and because the solicitation called for precisely three questionnaires
to be considered and consideration of both Mariner questionnaires
would have led to a total of four, it considered the questionnaire
which covered work by Life Oxygen on a home oxygen services contract
and did not consider the questionnaire related to the firm's work on a
DME contract. Agency Report at 5. On Mariner's questionnaire covering
the oxygen services work, Life Oxygen was assigned only the second of
three possible ratings for each of the questions and, with regard to
whether the reference would recommend Life Oxygen for future contracts
and would use them again for their current contract, the reference
indicated only "maybe." Agency Report encl. 9, Questionnaires for Life
Oxygen, at 3, 4. There is nothing unreasonable in the agency's
decision to consider the reference regarding a similar contract and
not to consider the same reference's write-up of a less similar
contract (where the solicitation called for consideration of only
three of the four references that the agency had received); the logic
of doing so is obvious. Similarly, we find nothing unreasonable in
the agency's downgrading Life Oxygen based on the neutral responses in
the questionnaire and the reference's concerns reflected in its
questionnaire indicating only that it might contract with Life Oxygen
in the future.

Life Oxygen questions the agency's assertion that it relied on a
second questionnaire from Mariner, claiming that Mariner's [deleted]
completed only one questionnaire, and that the response was very
favorable. Life Oxygen relies in this regard on a March 31, 1999
letter provided by Mariner at the protester's request, in which the
[deleted] states that [deleted] "received one (1) inquiry as to
contractor performance," on a contract Life Oxygen performed for the
past 5 years "to provide oxygen supplies, E-Tank O2, Liquid O2,
respiratory supplies, concentrators and clinical services seven (7)
days a week by a credentialed therapist," and that [deleted] wrote
"definitely" next to the question concerning whether [deleted] would
recommend Life Oxygen for future contracts and would use them again
for the current contract. Comments at 2; Letter from Mariner to Life
Oxygen (Mar. 31, 1999).

While the source of the confusion regarding Mariner's questionnaires
is unclear, the record in fact contains two signed questionnaires from
the [deleted] of Mariner for work performed by Life Oxygen on two
separate contracts, as discussed above--one favorable, concerning the
DME contract, and one less favorable, for home oxygen services. Agency
Report encl. 9, Questionnaires for Life Oxygen, at 3, 4, 7, 8. During
the course of this protest, the VA specifically requested Mariner's
[deleted] to clarify whether [deleted] completed the unfavorable
questionnaire concerning the protester's home oxygen services
contract. By letter of April 20, the [deleted] responded that "while
it appears to be my signature on page 2 of the questionnaire I could
not say for certain one way or the other if it is." Letter from
Mariner to the VA (Apr. 20, 1999). Since the signature on the
questionnaire appears to be the [deleted], the [deleted] does not deny
that it is [deleted] signature, and there was nothing else in the
questionnaire bringing into question its authenticity, there is no
basis for us to question the agency's reliance on this questionnaire
in the evaluation.

QUALITY ASSURANCE

Life Oxygen argues that the agency unreasonably increased
Resp-A-Care's revised BAFO score by two points under the quality
assurance factor, since one of the evaluators noted during the
evaluation that the firm's performance under a prior DME contract with
the VA went "downhill" after it lost a key employee. Protest at 2;
Comments at 2. Life Oxygen maintains that this indicates poor quality
assurance.

The evaluation in this area was reasonable. The agency initially
downgraded Resp-A-Care's initial technical proposal and BAFO under the
quality assurance factor, where the firm received 28 of 30 available
points, because the firm failed to provide evidence of timely
monitoring of each new patient, and a performance improvement (PI)
plan that included JCAHO functions. Agency Report encl. 2,
Resp-A-Care's Evaluation, at 2; Agency Report encl. 14, Resp-A-Care's
BAFO Evaluation, at 3. Following discussions during which these
concerns were raised, the firm submitted a revised BAFO addressing
these concerns. Agency Report encl. 5, Resp-A-Care's Revised
BAFO. Specifically, Resp-A-Care included in its revised BAFO the
methods for timely monitoring of each new patient, such as when the
initial assessment for each new home oxygen patient would be
completed, by whom the assessments would be performed, and the type of
assessment forms that would be used. Id. at 2, 3. In addition,
Resp-A-Care's PI plan included some JCAHO functions, such as
maintaining an updated patient list, which reflects the various needs
of different patients in times of emergencies or possible service
interruptions. Id. at 3. The fact that one evaluator made a negative
comment about Resp-A-Care's prior performance did not by itself render
the 2-point increase improper; different evaluators may develop
different opinions in evaluating a proposal. Oceaneering Int'l, Inc.,
B-278126, B-278126.2, Dec. 31, 1997, 98-1 CPD Para. 133 at
10. Notwithstanding this evaluator's expressed concern, the TET
ultimately reached a consensus that the increase was
warranted. Moreover, the record shows that the evaluator ultimately
agreed with the other TET members regarding Resp-A-Care's quality
assurance rating and the source selection. /1/ Contracting Officer's
Statement at 3; Agency Report at 6.

The protest is denied.

Comptroller General
of the United States

1. In its protest, the protester raised other arguments, to which the agency responded in its report. In commenting on that report, the protester did not attempt to rebut the agency's responses. Accordingly, we consider it to have abandoned those bases of protest. Arjay Elecs. Corp., B-243080, July 1, 1991, 91-2 CPD Para. 3 at 1 n.1. In addition, in its comments on the agency report, the protester raises additional arguments concerning the evaluation of its proposal and the adequacy of discussions. Under our Bid Protest Regulations, protests such as this must be filed no later than 10 days after the protest bases were known or should have been known. 4 C.F.R. Sec. 21.2(a)(2) (1999). The agency report, issued on April 9, 1999, contained the information on which these arguments are based. Thus, these arguments had to be raised no later than April 19. Because the protester's comments were not received in our Office until April 26, these arguments are untimely and will not be considered. Outdoor Venture Corp., B-279777, July 17, 1998, 98-2 CPD Para. 27 at 3 n.1.