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B-225752.2, JUN 24, 1987, 87-1 CPD 628

B-225752.2 Jun 24, 1987
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A PROTESTER COMPLAINING THAT AN AGENCY IMPROPERLY AWARDED A CONTRACT UNDER A REQUEST FOR PROPOSALS (RFP) IS NOT AN INTERESTED PARTY FOR PURPOSES OF MAINTAINING A PROTEST AT THE GENERAL ACCOUNTING OFFICE MERELY BECAUSE IT HAD RESPONDED WITH AN OFFER FOR THE SAME PRODUCT TO A SEPARATE BROAD AGENCY ANNOUNCEMENT SINCE THE PROTESTER NEVER RESPONDED TO THE RFP IT WAS PROTESTING. MERE DISAGREEMENT WITH AGENCY EVALUATION IS INSUFFICIENT TO CARRY PROTESTER'S BURDEN OF PROOF. THE SOLICITATION WAS ISSUED BY THE UNITED STATES ARMY MEDICAL RESEARCH ACQUISITION ACTIVITY (ARMY) FOR DEVELOPMENT OF A NONINVASIVE NBC WARFARE PATIENT VITAL SIGNS MONITOR. WE DISMISSED THE PROTEST BECAUSE THE PROTESTER WAS NOT AN OFFEROR UNDER THE RFP.

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B-225752.2, JUN 24, 1987, 87-1 CPD 628

PROCUREMENT - BID PROTESTS - GAO PROCEDURES - INTERESTED PARTIES DIGEST: 1. A PROTESTER COMPLAINING THAT AN AGENCY IMPROPERLY AWARDED A CONTRACT UNDER A REQUEST FOR PROPOSALS (RFP) IS NOT AN INTERESTED PARTY FOR PURPOSES OF MAINTAINING A PROTEST AT THE GENERAL ACCOUNTING OFFICE MERELY BECAUSE IT HAD RESPONDED WITH AN OFFER FOR THE SAME PRODUCT TO A SEPARATE BROAD AGENCY ANNOUNCEMENT SINCE THE PROTESTER NEVER RESPONDED TO THE RFP IT WAS PROTESTING. PROCUREMENT - BID PROTESTS - ALLEGATION SUBSTANTIATION - BURDEN OF PROOF 2. MERE DISAGREEMENT WITH AGENCY EVALUATION IS INSUFFICIENT TO CARRY PROTESTER'S BURDEN OF PROOF.

THE COMEDICA CORPORATION-- RECONSIDERATION:

THE COMEDICA CORPORATION FORMERLY STERIDOC CORPORATION REQUESTS RECONSIDERATION OF OUR DECISION IN STERIDOC CORPORATION, B-225752, APR. 29, 1987, 87-1 CPD PARA. ***, IN WHICH WE DISMISSED IN PART AND DENIED IN PART STERIDOC'S PROTEST UNDER REQUEST FOR PROPOSALS (RFP) NO. DAMD17 85-R- 0016, AND UNDER AN ARMY BROAD AGENCY ANNOUNCEMENT (BAA). THE SOLICITATION WAS ISSUED BY THE UNITED STATES ARMY MEDICAL RESEARCH ACQUISITION ACTIVITY (ARMY) FOR DEVELOPMENT OF A NONINVASIVE NBC WARFARE PATIENT VITAL SIGNS MONITOR. WE DENY THE REQUEST FOR RECONSIDERATION.

WE DISMISSED THE PROTEST BECAUSE THE PROTESTER WAS NOT AN OFFEROR UNDER THE RFP, AND THEREFORE WAS NOT AN INTERESTED PARTY UNDER OUR REGULATIONS. SEE 4 C.F.R. SEC. 21.1(A) (1986). COMEDICA ARGUES THAT SINCE IT HAD SUBMITTED A PROPOSAL UNDER THE ARMY'S AUGUST 1986 BAA FOR BASIC RESEARCH IN AREAS OF INTEREST TO THE ARMY MEDICAL RESEARCH AND DEVELOPMENT COMMAND, IT IS ENTITLED TO INTERESTED PARTY STATUS.

THE RFP, ISSUED NOVEMBER 20, 1984, UNDER WHICH COMEDICA DID NOT SUBMIT AN OFFER BUT PROTESTED, AND THE ARMY'S AUGUST 1986 BAA, UNDER WHICH COMEDICA DID SUBMIT A PROPOSAL, WERE TWO DISTINCT REQUESTS MADE BY THE ARMY. THE FACT THAT COMEDICA RESPONDED TO THE BAA DID NOT GIVE IT INTERESTED PARTY STANDING UNDER ANY OTHER SOLICITATION WHICH THE ARMY ISSUED FOR DEVELOPMENT OF THE SAME DEVICE. COMEDICA HAD TO RESPOND TO THE RFP IN QUESTION FOR IT TO BE CONSIDERED AN INTERESTED PARTY ENTITLED TO FILE A PROTEST UNDER OUR REGULATIONS.

WITH REGARD TO THE BAA, IN OUR DECISION, STERIDOC CORPORATION, B-225752, SUPRA, WE FOUND THAT THE PROTESTER HAD FAILED TO REBUT SOME OF THE ARMY'S TECHNICAL REASONS FOR REJECTING THE PROPOSAL COMEDICA HAD SUBMITTED IN RESPONSE TO THE BAA. SPECIFICALLY, WE FOUND THAT THE PROTESTER HAD NOT REBUTTED THE ARMY'S CONTENTION THAT THE MONITOR WAS UNABLE TO DETERMINE BLOOD PRESSURE THROUGH PROTECTIVE CLOTHING. IN ITS REQUEST FOR RECONSIDERATION COMEDICA SIMPLY MAINTAINS THAT IT HAS MET THE ARMY'S REQUIREMENT, STATING, WITHOUT ELABORATION, THAT IT IS WILLING TO DEMONSTRATE THAT ITS MONITOR WILL DETERMINE VITAL SIGNS THROUGH HEAVY OUTER GARMENTS.

WE FIND NOTHING IN COMEDICA'S REQUEST FOR RECONSIDERATION WHICH MEETS ITS BURDEN TO SHOW THAT OUR PRIOR DENIAL OF THIS BASIS OF PROTEST MAY HAVE BEEN LEGALLY OR FACTUALLY INCORRECT. SEE COASTAL INDUSTRIES INC.-- RECONSIDERATION, B-223158.2, JUNE 30, 1986, 86-2 CPD PARA. 20. MERE DISAGREEMENT WITH THE ARMY'S EVALUATION DOES NOT ITSELF RENDER THE EVALUATION UNREASONABLE. ELECTRONIC WARFARE ASSOCIATES, B-224504, B-223938, NOV. 3, 1986, 86-2 CPD PARA. 514.

WE DENY THE REQUEST FOR RECONSIDERATION.

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