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"OTHER FACTORS" REFER TO NONCOST OR TECHNICAL CONSIDERATIONS WHICH ARE CONSIDERED IN ADDITION TO PRICE IN DETERMINING THE SUCCESSFUL OFFEROR. THE DETERMINATION TO SPLIT AN AWARD GENERALLY IS BASED ON THE AGENCY'S NEEDS. THE VA DETERMINED THAT IT WAS NOT ADVANTAGEOUS TO AWARD THIS CONTRACT TO YOUR COMPANY EVEN THOUGH YOUR COMPANY SUBMITTED THE LOWEST OVERALL PRICE FOR THE SERVICES. THE VA REJECTED THE SUGGESTION THAT BECAUSE YOUR COMPANY WAS THE "LOW BIDDER" FOR THE TULSA FACILITY AND BECAUSE THE INCUMBENT WAS LOW FOR THE MUSKOGEE CLINIC. YOU OBJECT SPECIFICALLY TO THE VA'S STATEMENT TO SENATOR NICKLES THAT THE AGENCY IS AUTHORIZED UNDER THE PROVISIONS OF 38 U.S.C. IT IS NOT NECESSARY TO RESOLVE THIS MATTER SINCE THE INFORMATION YOU HAVE PROVIDED THIS OFFICE SHOWS CLEARLY THAT THE VA CONDUCTED A COMPETITIVE PROCUREMENT.

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B-221715, FEB 11, 1986, OFFICE OF GENERAL COUNSEL

CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - EVALUATION CRITERIA - PRICE CONSIDERATION - RELATIVE IMPORTANCE DIGEST: 1. NEGOTIATED SOLICITATION ADVISED OFFERORS THAT AWARD WOULD BE MADE ON THE BASIS OF PRICE AND "OTHER FACTORS." GENERALLY, IN A NEGOTIATED PROCUREMENT, "OTHER FACTORS" REFER TO NONCOST OR TECHNICAL CONSIDERATIONS WHICH ARE CONSIDERED IN ADDITION TO PRICE IN DETERMINING THE SUCCESSFUL OFFEROR. CONTRACTS - NEGOTIATION - REQUESTS FOR PROPOSALS - AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC. - AWARD BASIS 2. THE DETERMINATION TO SPLIT AN AWARD GENERALLY IS BASED ON THE AGENCY'S NEEDS. HOWEVER, THE SOLICITATION SHOULD ADVISE OFFERORS THAT THE AWARD MAY BE MADE TO ONE CONTRACTOR FOR THE ENTIRE REQUIREMENT OR THAT THE REQUIREMENT MAY BE DIVIDED AMONG SEVERAL CONTRACTORS.

EAR, NOSE & THROAT CONSULTANTS, INC.: 2325 SOUTH HARVARD, SUITE 207 TULSA, OKLAHOMA 74114

ATTENTION: WILLIAM D. POIRIER, M.D.

WE REFER TO YOUR LETTER DATED JANUARY 16, 1986, IN WHICH YOU QUESTION THE PROPRIETY OF A VETERANS ADMINISTRATION (VA) AWARD OF A CONTRACT FOR SCARCE MEDICAL SPECIALIST SERVICES (EAR, NOSE AND THROAT MEDICAL SERVICES) FOR THE AGENCY'S TULSA AND MUSKOGEE, OKLAHOMA, CLINICS.

THE VA JUSTIFIED ITS ACTIONS UNDER THIS PROCUREMENT TO SENATOR DON NICKLES IN RESPONSE TO SENATOR NICKLES' LETTER TO THE VA WRITTEN ON YOUR BEHALF.

THE VA DETERMINED THAT IT WAS NOT ADVANTAGEOUS TO AWARD THIS CONTRACT TO YOUR COMPANY EVEN THOUGH YOUR COMPANY SUBMITTED THE LOWEST OVERALL PRICE FOR THE SERVICES. THE VA AWARDED THE CONTRACT TO THE INCUMBENT CONTRACTOR ESSENTIALLY BASED ON ITS FINDING THAT IT WOULD BE DISRUPTIVE OF OPERATIONS AND PATIENT CARE TO BRING IN A NEW CONTRACTOR AT THIS TIME, FURTHER, THE VA REJECTED THE SUGGESTION THAT BECAUSE YOUR COMPANY WAS THE "LOW BIDDER" FOR THE TULSA FACILITY AND BECAUSE THE INCUMBENT WAS LOW FOR THE MUSKOGEE CLINIC, SEPARATE CONTRACTS SHOULD BE AWARDED FOR EACH FACILITY. THE VA DETERMINED THAT IN ORDER TO INSURE CONTINUITY IN PATIENT CARE, THE SAME CONTRACTOR SHOULD HANDLE BOTH CLINICS SINCE A PATIENT COULD RECEIVE CARE AT BOTH FACILITIES.

YOU OBJECT SPECIFICALLY TO THE VA'S STATEMENT TO SENATOR NICKLES THAT THE AGENCY IS AUTHORIZED UNDER THE PROVISIONS OF 38 U.S.C. SEC. 4117 (1982) TO AWARD A CONTRACT FOR THIS TYPE OF SERVICE WITHOUT COMPETITION. IT IS NOT NECESSARY TO RESOLVE THIS MATTER SINCE THE INFORMATION YOU HAVE PROVIDED THIS OFFICE SHOWS CLEARLY THAT THE VA CONDUCTED A COMPETITIVE PROCUREMENT. GENERALLY, AN AGENCY MAY ONLY CONDUCT A SOLE-SOURCE PROCUREMENT WHERE AUTHORIZED BY LAW. WE NOTE THAT THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 41 U.S.C.A. SEC. 251, ET SEQ. (WEST SUPP. 1985), ESTABLISHES THE PROCEDURES AND JUSTIFICATION FOR PROCURING ON A SOLE-SOURCE BASIS. THE PROVISIONS OF CICA, 31 U.S.C.A. SEC. 3551, ET SEQ. (WEST SUPP. 1985), AND OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1985), ALSO PROVIDE PROCEDURES WHICH PERMIT AN INTERESTED PARTY TO A PROCUREMENT TO PROTEST IF IT BELIEVES AN AGENCY IMPROPERLY AWARDED A CONTRACT ON A NONCOMPETITIVE BASIS. IN THIS CONNECTION, ENCLOSED IS A COPY OF A PUBLICATION OF OUR OFFICE WHICH MAY BE HELPFUL IN THE FUTURE.

YOU ALSO QUESTION WHETHER THE VA UNDER "COMPETITIVE BIDDING" PROCEDURES COULD PROPERLY AWARD THE CONTRACT TO OTHER THAN THE LOW BIDDER.

THE VA INDICATES THAT A NEGOTIATED SOLICITATION WAS USED HERE WHICH ADVISED OFFERORS THAT AWARD WOULD BE MADE ON THE BASIS OF PRICE AND OTHER FACTORS. GENERALLY, IN A NEGOTIATED PROCUREMENT, "OTHER FACTORS" REFER TO NONCOST OR TECHNICAL CONSIDERATIONS WHICH ARE CONSIDERED IN ADDITION TO PRICE IN DETERMINING THE SUCCESSFUL OFFEROR. THUS, IN A NEGOTIATED PROCUREMENT, AWARD TYPICALLY IS NOT MADE SOLELY ON THE BASIS OF PRICE. SEE E.G. R.P. SITA, INC., B-217028, JAN. 22, 1985, 85-1 CPD PARA. 83. HERE, THE VA EXPLAINED THAT PATIENT CARE AND CONCERN OVER THE DISRUPTION OF OPERATIONS WERE NONCOST FACTORS CONSIDERED IN MAKING THIS AWARD.

CONCERNING YOUR QUESTION WHETHER IT WAS PROPER FOR THE VA NOT TO AWARD SEPARATE CONTRACTS FOR EACH FACILITY, THE DETERMINATION TO SPLIT AN AWARD IS BASED ON THE AGENCY'S NEEDS. SEE COULTER ELECTRONICS, INC., B-216800, APR. 23, 1985, 85-1 CPD PARA. 463. THE SOLICITATION, HOWEVER, SHOULD ADVISE OFFERORS THAT AWARD MAY BE MADE TO ONE CONTRACTOR FOR THE ENTIRE REQUIREMENT OR THAT THE REQUIREMENT MAY BE DIVIDED AMONG SEPARATE CONTRACTORS. THE VA INDICATES THAT THE SOLICITATION AT ISSUE, IN FACT, DID ADVISE OFFERORS THAT AWARD COULD BE MADE ON EITHER BASIS.

FINALLY, WITH REGARD TO YOUR REQUEST FOR GUIDELINES ON COMPETITIVE BIDDING, THE RULES GOVERNING FEDERAL PROCUREMENTS ARE CONTAINED IN THE FEDERAL ACQUISITION REGULATION, VOLUME 48 OF THE CODE OF FEDERAL REGULATIONS. YOU MIGHT ALSO WANT TO ASK THE VA FOR ANY GUIDELINES IT MAY HAVE ISSUED CONCERNING THE PROCUREMENT OF SCARCE MEDICAL SPECIALIST SERVICES.

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