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PROTEST ALLEGATIONS THAT NEGOTIATION WAS NOT THD PROPER MEANS FOR ACQUIRING AGENCY'S NEEDS AND THAT PROCUREMENT SHOULD HAVE BEEN AT LEAST PARTIALLY SET ASIDE FOR SMALL BUSINESS ARE UNTIMELY UNDER GAO BID PROTEST PROCEDURES (4 C.F.R. 20.2(B)(1)). BECAUSE ALLEGED DEFECTS WERE APPARENT FROM RFP BUT WERE NOT RAISED UNTIL AFTER DATE SET FOR RECEIPT OF INITIAL PROPOSALS. 2. ARGUMENT THAT "PRICE" AND "COST OF OPERATIONS" WERE NOT CONSIDERED IN RELATION TO ONE ANOTHER IN EVALUATING OFFERORS' PROPOSALS IS WITHOUT MERIT WHERE THE SOLICITATION SPECIFIED BOTH AS EVALUATION CRITERIA WITH DISCERNIBLE RELATIVE VALUES ASSIGNED TO EACH. 3. ARGUMENT THAT PROTESTER'S "PRICE" PLUS "COST OF OPERATIONS" WAS LOWER THAN AWARDEE'S AND THAT.

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B-186563, DECEMBER 8, 1976

1. PROTEST ALLEGATIONS THAT NEGOTIATION WAS NOT THD PROPER MEANS FOR ACQUIRING AGENCY'S NEEDS AND THAT PROCUREMENT SHOULD HAVE BEEN AT LEAST PARTIALLY SET ASIDE FOR SMALL BUSINESS ARE UNTIMELY UNDER GAO BID PROTEST PROCEDURES (4 C.F.R. 20.2(B)(1)), BECAUSE ALLEGED DEFECTS WERE APPARENT FROM RFP BUT WERE NOT RAISED UNTIL AFTER DATE SET FOR RECEIPT OF INITIAL PROPOSALS. 2. ARGUMENT THAT "PRICE" AND "COST OF OPERATIONS" WERE NOT CONSIDERED IN RELATION TO ONE ANOTHER IN EVALUATING OFFERORS' PROPOSALS IS WITHOUT MERIT WHERE THE SOLICITATION SPECIFIED BOTH AS EVALUATION CRITERIA WITH DISCERNIBLE RELATIVE VALUES ASSIGNED TO EACH. 3. ARGUMENT THAT PROTESTER'S "PRICE" PLUS "COST OF OPERATIONS" WAS LOWER THAN AWARDEE'S AND THAT, THEREFORE, PROTESTER SHOULD HAVE RECEIVED THE AWARD, IS WITHOUT MERIT, BECAUSE THESE TWO FACTORS CONSTITUTED APPROXIMATELY 44 PERCENT OF THE EVALUATION CRITERIA IN A NEGOTIATED PROCUREMENT WHEREIN "PRICE" PLUS "COST OF OPERATION" CLEARLY WERE NOT CONTROLLING. 4. DEDUCTION OF POINTS UNDER "COST OF OPERATIONS" CRITERION OF EVALUATION SCHEME WHERE RECORD WAS NOT CLEAR AS TO THE RATIONALE FOR THE PRECISE NUMBER OF POINTS DEDUCTED IS NOT SO ARBITRARY AS TO BE OBJECTIONABLE, BECAUSE RECORD INDICATES THAT A SUBSTANTIAL NUMBER OF POINTS REASONABLY COULD HAVE BEEN DEDUCTED. 5. ARGUMENT THAT "COST OF OPERATION" CRITERION ESTABLISHED TO EVALUATE COST OF OPERATING INOCULATION SYSTEM IS IN VIOLATION OF OMB CIRCULAR A-109 IS WITHOUT MERIT, BECAUSE THE CIRCULAR APPLIES TO THE ACQUISITION OF "MAJOR SYSTEMS" AND NOT TO CONTRACTS FOR SUPPLIES OF THE TYPE HERE INVOLVED. 6. PROTEST ALLEGING THAT AN EVALUATION CRITERION WAS WEIGHTED TOO LOW IS UNTIMELY WHERE RELATIVE WEIGHT OF THE CRITERION WAS KNOWN PRIOR TO THE DATE SET FOR RECEIPT OF INITIAL PROPOSALS AND PROTEST ON SUCH GROUNDS NOT RECEIVED UNTIL AFTER THAT DATE. 7. PROTEST ALLEGING THAT AGENCY VIOLATED FPR SEC. 1-3.102(E) IS WITHOUT MERIT, BECAUSE AGENCY IS NOT REQUIRED TO PERFORM PRICE AND COST ANALYSES ON NECESSARY EQUIPMENT NOT TO BE SUPPLIED BY THE CONTRACTOR UNDER NEGOTIATED PROCUREMENT. 8. PROTEST ALLEGING THAT AGENCY VIOLATED FPR SEC. 1-3,102(F) REQUIRING CONSIDERATION OF SUBCONTRACTS IS DENIED WHERE AGENCY LEAVES CONSIDERATIONS OF POWER SUPPLY CONTRACTS TO USERS OF EQUIPMENT TO BE PURCHASED. 9. PROTEST ALLEGING THAT AGENCY VIOLATED FPR SEC. 1-3.102(J) REQUIRING THAT AGENCIES CONSIDER THE SIZE OF THE BUSINESS CONCERN WHEN NEGOTIATING FOR A CONTRACT IS DENIED WHERE ONLY ALLEGATION IS THAT AGENCY FAILED TO CONSIDER FAVORABLY THE SIZE OF A SMALL BUSINESS.

MED-E-JET CORPORATION:

MED-E-JET CORPORATION (MEJ) PROTESTS THE AWARD OF A CONTRACT FOR UP TO 2000 PORTABLE VACCINE INJECTORS ("JET INJECTION SYSTEMS") FOR VERNITRON MEDICAL PRODUCTS, INC. (VERNITRON) UNDER REQUEST FOR PROPOSALS NO. 76-28(N) ISSUED BY THE CENTER FOR DISEASE CONTROL (CDC) DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ATLANTA, GEORGIA. THE INJECTORS WERE PURCHASED FOR THE NATIONAL INFLUENZA IMMUNIZATION PROGRAM AGAINST SWINE FLU.

MEJ'S PRIMARY GROUND FOR PROTEST IS THAT CDC IMPROPERLY EVALUATED ITS TECHNICAL AND PRICE PROPOSALS. IN ADDITION, MEJ HAS ASSERTED THAT (1) NEGOTIATION WAS NOT A PROPER METHOD FOR SATISFYING CDC'S NEEDS, AND (2) THE PROCUREMENT SHOULD HAVE BEEN SET ASIDE, AT LEAST IN PART, FOR SMALL BUSINESSES. MEJ WAS AWARE FROM THE RFP THAT THE PROCUREMENT WAS BEING CONDUCTED UNDER NEGOTIATED PROCEDURES AND THAT NO PART OF THE PROCUREMENT HAD BEEN SET-ASIDE FOR EXCLUSIVE SMALL BUSINESS AWARD. YET, SO FAR AS THE RECORD SHOWS, MEJ DID NOT PROTEST THE USE OF NEGOTIATION OR THE FAILURE TO SET ASIDE THE PROCUREMENT UNTIL AFTER IT HAD SUBMITTED ITS PROPOSAL AND THE AWARD SELECTION HAD BEEN MADE. IT IS CLEAR THAT THESE ISSUES HAVE BEEN UNTIMELY RAISED UNDER OUR BID PROTEST PROCEDURES (4 C.F.R. 20.2(B)(1)), AND, THEREFORE, THEY WILL NOT BE CONSIDERED ON THE MERITS.

TURNING TO MEJ'S FIRST TIMELY GROUND OF PROTEST, THE RECORD SHOWS THAT CDC SOLICITED PROPOSALS FOR THE SUPPLYING OF JET INJECTOR SYSTEMS TO BE USED IN A MASS INOCULATION PROGRAM THROUGHOUT THE UNITED STATES. OFFERORS WERE INFORMED THAT THE SYSTEM WOULD BE SUBJECT TO CONTINUOUS DAILY USE AND MUST BE PORTABLE SO THAT ONE INDIVIDUAL COULD CONVENIENTLY SET UP, DISASSEMBLE, AND TRANSPORT EACH SYSTEM FROM ONE SITE TO ANOTHER. OFFERORS WERE FURTHER INSTRUCTED TO SUPPLY DESCRIPTIVE INFORMATION AS TO HOW THE OFFERED SYSTEM COMPARED WITH LISTED TECHNICAL REQUIREMENTS. SPECIFICALLY, THE RFP REQUIRED THAT THE TECHNICAL PROPOSALS:

" * * * INCLUDE THE WEIGHT AND GENERAL SIZE OF THE INJECTOR, THE MODE OF OPERATION OF THE SYSTEM, POWER SOURCE WEIGHT OF THE SYSTEM AS PACKAGED IN THE CARRYING CASE, AND PHYSICAL DIMENSIONS OF THE PACKAGED SYSTEM. ANY ACCESSORIES OR AUXILIARY EQUIPMENT NOT NORMALLY SUPPLIED WITH THE INJECTOR SYSTEM SHOULD BE IDENTIFIED AND A DESCRIPTION PRESENTED AS TO ITS RELATIONSHIP WITH THE SYSTEM. COSTS OF AUXILIARY POWER SOURCE * * * REQUIRED FOR OPERATION BUT NOT INCLUDED WITH THE SYSTEM SHOULD BE IDENTIFIED AND DISCUSSED BY THE PROPOSER. * * * IF THE INJECTOR SYSTEM IS DEPENDENT UPON AN EXTERNAL SOURCE OF POWER, INDICATE THE NUMBER OF INOCULATIONS WHICH CAN BE DISPENSED BEFORE REPLACEMENT OF THE POWER SOURCE IS REQUIRED".

THE RFP, ISSUED APRIL 7, 1976, CALLED FOR 2000 JET INJECTOR SYSTEMS (INCLUDING 600 OPTION UNITS) TO BE DELIVERED BY AUGUST 31, 1976, AND SPECIFIED THAT PROPOSALS WOULD BE EVALUATED AGAINST THE FOLLOWING WEIGHTED CRITERIA:

1. PRODUCTION AND DELIVERY 30 POINTS

2. COST OF OPERATION IN GIVING CONTINUOUS INJECTIONS IN A MASS INOCULATION CAMPAIGN 30 POINTS

3. PORTABILITY 20 POINTS

4. PRIOR PERFORMANCE IN MASS IMMUNICATION PROGRAM 15 POINTS

5. EASE OF OPERATION IN GIVING CONTINUOUS INJECTIONS IN A MASS INOCULATION CAMPAIGN 5 POINTS

TECHNICAL SCORE 100 POINTS

PRICE WAS ASSIGNED 25 POINTS AND CONVERTED INTO A WEIGHTED RATE AS FOLLOWS:

PROPOSERS PRICE SCORE LOWEST PRICE (PROPOSER WITHIN ACCEPTABLE RANGE OVER OFFEROR'S PRICE X 25

PROPOSER'S FINAL SCORE PROPOSER'S TECHNICAL SCORE PROPOSER'S PRICE SCORE

FOUR PROPOSALS WERE RECEIVED BY APRIL 21, 1976, IN RESPONSE TO THE RFP, AND TWO WERE FOUND TO BE UNACCEPTABLE FOR BEING UNABLE TO MEET THE LISTED MINIMUM TECHNICAL CHARACTERISTICS. THE TWO REMAINING PROPOSALS (THE PROTESTER'S AND VERNITRON'S) WERE EVALUATED AGAINST THE EVALUATION CRITERIA SET OUT IN THE RFP.

VERNITRON PROPOSED ITS "PED-O-JET" (FOOT OPERATED) SYSTEM. ITS TOTAL NET PRICE FOR 2000 SYSTEMS WAS EVALUATED AS $1,861,561.35. IT RECEIVED 94 OUF OF 100 POSSIBLE TECHNICAL POINTS ON THE BASIS THAT ITS SYSTEM MET ALL TECHNICAL REQUIREMENTS, THE COSTS OF OPERATION CONSISTED ONLY OF THE INITIAL COST OF THE UNIT PLUS MAINTENANCE, AND IT HAD PERFORMED SATISFACTORILY IN PRIOR MASS IMMUNIZATION PROGRAMS. THE PED O-JET LOST 5 (OF 20) POINTS FOR PORTABILITY BASED ON A WEIGHT OF 13 POUNDS AND A 1.4 CUBIC FEET CARRYING CASE, AND 1 POINT (OF 5 POINTS) FOR EASE OF OPERATION, BECAUSE A HYDRAULIC PUMP MUST BE ACTIVATED BY THE FOOT FOR EACH INJECTION.

MEJ'S PROPOSED SYSTEM, THE "MED-E-JET", IS DEPENDENT UPON COMPRESSED CO2 GAS AS A SOURCE OF POWER. ITS TOTAL EVALUATED PRICE WAS $1,232,311.50, OR ABOUT $630,000 LESS THAN VERNITRON'S TOTAL NET PRICE FOR THE 2000 UNITS. HOWEVER CDC'S EVALUATORS DETERMINED THAT MEJ'S PROPOSAL WAS NOT WITHIN THE COMPETITIVE RANGE BECAUSE OF:

"MAJOR SHORTCOMINGS WHICH WERE INHERENT IN MEJ'S SYSTEM RELATED TO THE CO2 POWER SOURCE. THE NECESSITY FOR EXTERNAL TANKS AND AN EXPENDABLE POWER SUPPLY DETRACTED FROM THE PORTABILITY AND COST OF OPERATION CRITERIA."

THE EVALUATORS AWARDED MEJ'S PROPOSAL ONLY 5 OF 30 POINTS FOR COST OF OPERATION AND 5 OF 20 POINTS FOR PORTABILITY. IN TOTAL, MEJ RECEIVED ONLY 52 OF 100 TECHNICAL POINTS, MOSTLY BECAUSE IT RECEIVED LOW RATINGS FOR COST OF OPERATIONS AND PORTABILITY. ALTHOUGH MEJ RECEIVED THE TOTAL 25 POINTS FOR PRICE, ITS PROPOSAL WAS EXCLUDED FROM THE COMPETITIVE RANGE.

AS THE CONTRACTING OFFICER EXPLAINED TO MEJ, ITS PROPOSED SYSTEM WAS DETERMINED TO BE COSTLY TO OPERATE. IDENTIFIABLE COSTS (TANKS AND CO2 GAS) WERE CALCULATED BOTH ON USING 5-POUND AND 20-POUND TANKS AND ON THE BASIS OF 160 MILLION AND 100 MILLION INJECTIONS, AND THESE COSTS RANGED FROM $209,000 (USING THE 20-POUND TANK FOR 100 MILLION INJECTIONS) TO $470,000 (USING THE 5-POUND TANK FOR 160 MILLION INJECTIONS). ADDITION, THE EVALUATORS CONSIDERED THAT CERTAIN EXTRA COSTS WOULD RESULT FROM THE USE OF CO2. THESE INCLUDED (1) SHIPPING COSTS (SHIPPING THE TANKS FROM ONE POINT TO ANOTHER FOR REFILLING ETC.), (2) STORAGE, (3) MANPOWER COSTS RELOCATED TO LOCATING CO2 SOURCES AND TO REFILLING THE TANKS, (4) COST OF DOWNTIME WHEN FILLED TANKS ARE NOT AVAILABLE TO MAINTAIN OPERATION OF THE SYSTEM, AND (5) OTHER INTANGIBLE COSTS RESULTING FROM USING CO2.

IN THE AREA OF PORTABILITY THE EVALUATORS FOUND DIFFICULTIES BECAUSE OF THE GAS AND TANKS ASSOCIATED WITH MEJ'S SYSTEM. THE EVALUATORS DETERMINED THAT FOR MASS CLINICS EITHER A 20-POUND CONTAINER OR A 50 POUND CONTAINER OF C02 WOULD BE REQUIRED. IN THE VIEW OF THE EVALUATORS, THE SIZE AND WEIGHT OF BOTH OF THESE CONTAINERS REDUCED ITS SHORT HAUL PORTABILITY CONSIDERABLY AND, AS A PRACTICAL MATTER, PROHIBITED TRANSPORTING THIS EQUIPMENT FROM CITY TO CITY BY COMMON CARRIER BECAUSE OF WEIGHT AND SAFETY PROBLEMS.

MEJ CONTENDS THAT CDC IMPROPERLY ASSUMED SIGNIFICANT COSTS WERE ASSOCIATED WITH ACQUIRING AND HANDLING THE CO2 PROPELLANT CONTAINERS. FACT, ARGUES MEJ, THERE ARE CO2 GAS TANKS AVAILABLE IN VIRTUALLY EVERY LOCALE IN WHICH INOCULATIONS MIGHT BE ADMINISTERED THUS REQUIRING NO TRANSPORTATION BETWEEN POPULATION CENTERS; THE TANKS NEED NOT HAVE SIGNIFICANT STORAGE COSTS - THEY CAN BE STORED OUT OF DOORS; AND THE "DOWNTIME" IN REPLACING TANKS IS ONLY THE TIME IT TAKES TO CHANGE FROM ONE TANK TO ANOTHER - APPROXIMATELY 15 SECONDS. AS CDC POINTS OUT, HOWEVER, WHILE TANKS MAY BE LOCATED NEAR ALL PLACES EVENTUALLY SELECTED AS INOCULATION POINTS, THE COST FOR TRANSPORTING THE TANKS WOULD, REALISTICALLY, BE IN THE AREA OF $100,000-$400,000 DEPENDING UPON THE MIX OF 5-POUND AND 20-POUND TANKS USED. MOREOVER, CDC NOTES THAT ACQUIRING AND FILLING THE TANKS IS NOT SO SIMPLE AS MEJ ASSERTS, I.E., PURCHASE ORDERS MUST BE PROCESSED FOR THE PURCHASE OR RENTAL OF THE CO2 TANKS, RECORDS KEPT, INVOICES PAID, ETC., ALL OF WHICH INCUR ADMINISTRATIVE COSTS.

REGARDING DOWNTIME, CDC NOTES THAT MEJ MISCONSTRUED WHAT WAS MEANT BY "DOWNTIME" WHICH CDC STATES RELATES TO THOSE SITUATIONS WHERE FOR ONE REASON OR ANOTHER REPLACEMENT TANKS WERE NOT AVAILABLE. ALSO, CDC NOTES THAT MEJ'S ASSUMPTION THAT CO2 TANKS ARE ONLY TO BE USED AT FIXED INOCULATION CENTERS WITHIN SPECIFIED GEOGRAPHICAL OR POLITICAL BOUNDARIES, IS INCORRECT. CDC NOTES THAT THE PURPOSE OF THE IMMUNIZATION PROGRAM IS TO TAKE THE VACCINE "TO THE PEOPLE", I.E., ANY PLACE WHERE THERE ARE LARGE GATHERINGS OF PEOPLE. THIS FURTHER COMPLICATES THE ADMINISTRATIVE AND LOGISTICAL PROBLEMS ASSOCIATED WITH ACQUIRING AND HANDLING THE CO2 CONTAINERS, INASMUCH AS THE INOCULATION SITES WILL BE CONSTANTLY SHIFTING WITHIN AND BETWEEN CITIES AND SURROUNDING RURAL AREAS.

IN A NEGOTIATED PROCUREMENT, EVALUATION OF PROPOSALS TO DETERMINE THE MOST ADVANTAGEOUS OFFER TO THE GOVERNMENT SHOULD BE CONFINED TO MATTERS THAT ARE NOT SUBJECT TO SPECULATION AS TO WHETHER THEY WILL OCCUR OR NOT AND SHOULD BE QUANTIFIABLE. SEE, CONTINENTAL CABLEVISION OF NEW HAMPSHIRE, INC. AND SATELLITE SYSTEMS CORPORATION, B-178542, JULY 19, 1974, 74-2 CPD 45 AND CASES CITED THEREIN. MEJ CONCEDES THAT, TO SOME EXTENT, ALL OF THE COSTS ALLUDED TO BY CDC IN ITS JUSTIFICATION FOR ASCRIBING LOW MARKS TO MEJ'S "COST OF OPERATION" WILL OCCUR. MEJ ASSERTS, HOWEVER, THAT ALTHOUGH SUCH COSTS MIGHT BE INCURRED, CDC FAILED TO QUANTIFY THEM, THUS INVALIDATING ANY JUDGMENT AS TO THEIR IMPORTANCE. CDC CONTENDS, IN ESSENCE, THAT THE COSTS ASSOCIATED WITH THE USE OF CO2 WERE KNOWN TO EXIST BUT WERE NOT QUANTIFIABLE, BECAUSE OF THE MYRIAD CIRCUMSTANCES IN WHICH COSTS WOULD BE GENERATED AND CONSIDERING THE FLEXIBILITY AND MOBILITY REQUIRED OF THE SYSTEMS IN A NATIONAL IMMUNIZATION PROGRAM.

CDC HAS NOT ARTICULATED ITS BASIS FOR DEDUCTION 25 POINTS AS OPPOSED TO ANY OTHER NUMBER OF POINTS FROM MEJ'S "COST OF OPERATION." HOWEVER, WE CANNOT SAY THAT THE POINT DEDUCTION WAS SO ARBITRARY AS TO CONSTITUTE AN ABUSE OF DISCRETION, SEE, TELCOM INCORPORATED, B-184340, JANUARY 12, 1976, 76-1 CPD 17, BECAUSE THE RECORD DOES JUSTIFY A SUBSTANTIAL POINT DEDUCTION, FOR THE "COST OF OPERATION" CRITERION. WE WILL NOT OBJECT TO THE SCORING OF MEJ'S PROPOSAL ON THIS CRITERION.

MEJ ALSO ARGUES THAT THE COST OF OPERATION CRITERION, EVEN IF FAIRLY APPLIED, VIOLATES OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR A-109 IN THAT IT DOES NOT TAKE INTO ACCOUNT THE "LIFE CYCLE COST" OF THE SYSTEM. CIRCULAR A-109 ESTABLISHES POLICIES FOR THE ACQUISITION OF "MAJOR SYSTEMS." WE VIEW THE INSTANT PROCUREMENT AS SIMPLY ONE FOR SUPPLIES AND NOT FOR A "MAJOR SYSTEM", AND FOR THAT REASON WE DO NOT REGARD CIRCULAR A- 109 AS RELEVANT TO THE PROTEST.

WITH REGARD TO THE "PORTABILITY" CRITERION MEJ CONTENDS THAT THE EVALUATORS PLACED UNDUE EMPHASIS ON THE WEIGHT AND BULK OF THE MEJ UNIT WITHOUT FIRST DEFINING AT WHAT WEIGHT A GIVEN INOCULATOR BECOMES MORE OR LESS PORTABLE. WE NOTE, HOWEVER, THAT UNDER THE TECHNICAL PROPOSAL INSTRUCTIONS OFFERORS WERE NOTIFIED THAT (1) THE UNIT MUST BE "PORTABLE AND COMPACT"; (2) A CARRYING CASE MUST BE PROVIDED WHICH WILL ACCOMMODATE THE INJECTOR AND ALL NECESSARY ACCESSORIES FOR THE INJECTOR'S OPERATION; AND (3) THE UNIT MUST BE PORTABLE TO THE EXTENT THAT "IT CAN BE CONVENIENTLY SET-UP AND DISASSEMBLED BY ONE INDIVIDUAL AND TRANSPORTED FROM ONE SITE TO ANOTHER." THUS, GIVEN THE NECESSARILY SUBJECTIVE NATURE OF SUCH A DETERMINATION, WE CANNOT SAY THAT, UNDER THE "VACCINE TO THE PEOPLE" CONCEPT OF OPERATION, ASCRIBING 5 OUT OF 20 POINTS TO MEJ'S SYSTEM ON THE BASIS OF AN ESTIMATED 40 TO 70 ADDITIONAL POUNDS OF EQUIPMENT PER 5 1/2 POUND INOCULATOR WAS UNREASONABLE.

UNDER THE "PRIOR PERFORMANCE IN A MASS IMMUNICATION PROGRAM" CRITERION, MEJ RECEIVED 10 OUT OF 15 POSSIBLE POINTS. MEJ CONTENDS THAT CDC IMPROPERLY EXCLUDED FROM CONSIDERATION THE MOST CURRENT EVALUATIONS OF MEJ'S PERFORMANCE. HOWEVER, MEJ HAS FAILED TO SHOW THAT EVALUATION OF THE MORE RECENT USES OF ITS EQUIPMENT WOULD HAVE BEEN FAVORABLE TO MEJ OR THAT SUCH EVALUATIONS WERE OR COULD HAVE BEEN AVAILABLE TO CDC PRIOR TO OR DURING THE EVALUATION PROCESS. HENCE, CDC'S NOT CONSIDERING THE MORE RECENT PERFORMANCE OF MEJ'S EQUIPMENT DOES NOT APPEAR TO HAVE PREJUDICED MEJ IN ANY WAY.

IN THE "EASE OF OPERATION" CRITERION MEJ SCORED 5 OUT OF 5 POSSIBLE POINTS. IT ARGUES THAT 5 POINTS IS ENTIRELY TOO LOW A SCORE TO GIVE SUCH AN IMPORTANT CRITERION. THE EVALUATION WEIGHTS, HOWEVER, WERE APPARENT ON THE FACE OF THE SOLICITATION; THEREFORE, ANY PROTEST ON THOSE GROUNDS IS UNTIMELY UNLESS FILED PRIOR TO THE TIME SET FOR RECEIPT OF INITIAL PROPOSALS (4 C.F.R. 20.2(B)(1)).

UNDER THE "PRICE" CRITERION, MEJ CONTENDS THAT THE RELATIVE IMPORTANCE OF PRICE WAS IMPROPERLY LOW. THE RELATIVE IMPORTANCE OF PRICE IN THE TOTAL EVALUATION SCHEME, LIKE THAT OF "EASE OF OPERATION," WAS APPARENT TO MEJ FROM THE FACE OF THE SOLICITATION. THEREFORE, THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED INSOFAR AS IT CONCERNS THE SOLICITATION'S STATEMENT OF THE RELATIVE IMPORTANCE OF PRICE.

MEJ HAS ALSO CONTENDED THAT IN ITS NEGOTIATIONS, CDC FAILED TO GIVE DUE ATTENTION TO SUBSECTIONS (E), (F), AND (J) OF FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-3.102. REGARDING FACTOR (E) REQUIRING "DISCRIMINATING USE OF PRICE AND COST ANALYSIS," MEJ STATES THAT SUCH AN ANALYSIS WAS OBVIOUSLY NOT EMPLOYED BECAUSE, HAD IT BEEN, CDC WOULD HAVE BEEN ABLE TO QUANTIFY THE COSTS OF HANDLING THE CO2 TANKS INCLUDED IN SHIPPING, STORAGE, MANPOWER IN LOCATING SOURCES, AND SYSTEM DOWNTIME DUE TO UNAVAILABILITY OF THE TANKS. MEJ, IN MAKING THIS ASSERTION, SHOWS A MISUNDERSTANDING OF THE SCOPE OF INQUIRY INVOLVED IN COST AND PRICE ANALYSIS. "PRICE ANALYSIS", AS DEFINED IN FPR SEC. 1-3.807-2(B), IS A COMPARATIVE ANALYSIS OF THE OFFEROR'S FIXED PRICE WITH THAT OF OTHER OFFEROR'S PRICES FOR THE SAME ITEM, CATALOG PRICES, PREVIOUS PRICES BY THE NAMED OFFEROR FOR THE SAME PRODUCT, AND OTHER APPROPRIATE YARDSTICKS. THE COMPARISON IS USED TO DETERMINE WHETHER AN OFFEROR'S PRICE IS "REASONABLE." "COST" ANALYSIS, IS USED AS STATED IN FPR SEC. 1-3.807-2(C) IN CONJUNCTION WITH AN OFFEROR'S COST OR PRICING DATA TO INSURE THAT PRICING IS REASONABLE WHERE NO COMPARATIVE PRICING DATA EXISTS OR WHERE COSTS ARE TO BE REIMBURSED UNDER THE CONTRACT. THE "COSTS" AND "PRICES" ALLUDED TO IN THE PROTEST AS EVIDENCING THE FAILURE TO FOLLOW 1-3.102(E) RELATE TO "COST" AND "PRICES" POTENTIALLY INCIDENT TO A CONTRACT WITH MEJ BUT NOT WITH MEJ'S CONTRACT PER SE. MOREOVER, THE RECORD CLEARLY SHOWS THAT, AS REGARDS THE USE OF "PRICE ANALYSIS," BOTH VERNITRON'S AND MEJ'S PROPOSALS WERE REASONABLY EVALUATED UNDER THD PROPER CRITERIA.

REGARDING CDC'S COMPLIANCE WITH FPR SEC. 1-3.102(F) "INVESTIGATION OF PRICE ASPECTS OF ANY IMPORTANT SUBCONTRACT", MEJ ASSERTS THAT CO2 GAS "SHOULD HAVE BEEN THE SUBJECT OF AN IMPORTANT SUBCONTRACT." HOWEVER, FROM THE RECORD IF APPEARS THAT CDC PREFERRED TO ALLOW THE USERS TO CONTRACT FOR CO2 GAS SUPPLIES OF MEJ'S INJECTOR WERE ACCEPTED. HENCE, NO SUBCONTRACT WOULD HAVE BEEN REQUIRED.

FINALLY, MEJ CONTENDS THAT THERE WAS NO EVIDENCE THAT MEJ'S STATUS AS A SMALL BUSINESS WAS GIVEN FAVORABLE CONSIDERATION UNDER FPR SEC. 1 3.102(J) WHICH REQUIRES THAT AGENCIES CONSIDER THE SIZE OF THE BUSINESS CONCERN WHEN NEGOTIATING THE CONTRACT. THIS IS, OF COURSE, A DIFFERENT CONSIDERATION FROM THE QUESTION AS TO WHETHER CERTAIN SIZE BUSINESSES SHALL BE FAVORED. SEE GENERALLY, FPR SEC. 1-1.7, SMALL BUSINESS CONCERNS. CONSEQUENTLY, LACK OF EVIDENCE OF "FAVORABLE" CONSIDERATION UNDER SEC. 1-3.102(J) IS NOT EVIDENCE THAT THE SIZE OF MEJ'S CONCERN WAS NOT CONSIDERED.

ACCORDINGLY, THE PROTEST IS DENIED.

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