Joerns Healthcare, LLC

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective Order. This version has been approved for public release without redactions.

Decision

Matter of: Joerns Healthcare, LLC

File: B-423455.2; B-423455.3; B-423455.4

Date: September 9, 2025

Aron C. Beezley, Esq., Nathaniel J. Greeson, Esq., Timothy J. Whittle, Esq., and Winni Zhang, Esq., Bradley Arant Boult Cummings LLP, for the protester.
Linh Adams, Esq., and Laura Reass, Esq., Department of Veterans Affairs, for the agency.
Thomas J. Warren, Esq., and Alexander O. Levine, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency reasonably determined that protester's proposal failed to comply with material solicitation requirements, thereby rendering the proposal ineligible for award.

2. Protest alleging unequal treatment in the evaluation of proposals is denied where the protester has not demonstrated that the differences in the evaluation did not stem from differences in the proposals.

DECISION

Joerns Healthcare, LLC, a small business of Charlotte, North Carolina, protests its exclusion from the competitive range after submitting a proposal in response to request for proposals (RFP) No. 36C10G25R0011, issued by the Department of Veteran Affairs (VA), Veterans Health Administration, for in-home hospital beds and accessories. The protester asserts that the agency unreasonably evaluated Joerns's proposal as unacceptable and applied a disparate evaluation standard when eliminating Joerns from the competition. The protester further argues that the agency unreasonably assigned various weaknesses to Joerns's proposal.

We deny the protest.

BACKGROUND

The agency issued the solicitation for this procurement on February 5, 2025, as a competitive small business set-aside in accordance with Federal Acquisition Regulation (FAR) part 12, acquisition of commercial products and commercial services, and the procedures in FAR part 15, contracting by negotiation. Contracting Officer's Statement (COS) at 2; Agency Report (AR), Tab 4.3, RFP at 8, 52.[1] The solicitation sought electric hospital beds and accessories designed for disabled and elderly individuals under VA care outside of a hospital setting. Id. The solicitation contemplated the award of multiple indefinite-delivery, indefinite-quantity contracts--each with a 1-year base period and four 1-year options and a maximum shared ceiling of $260 million. RFP at 1, 8.

The RFP identified three non-price evaluation factors listed in descending order of importance: technical, past performance, and socioeconomic considerations. Id. at 59. The non-price factors, when combined, were significantly more important than price. Id. Contract awards would be made to responsible offerors whose proposals conformed to the solicitation and were the most advantageous to the government, price and other factors considered. Id. at 60.

At issue in this protest, the solicitation specified 26 minimum technical requirements (MTRs) that all proposed bed products must meet to be considered acceptable. RFP at 8, 61-70. For the evaluation of the technical factor, the assessment of compliance with these MTRs was to be conducted in two phases. Id. at 61-62. For phase I, the agency would evaluate product literature accompanying proposed bed products. Id. The solicitation stated that “[s]ubmissions that meet minimum requirements, as demonstrated by review of the technical literature, will be determined to be technically acceptable for documentation review[.]” Id. at 62. For the phase II evaluation, agency evaluators would physically inspect each proposed bed product to ensure each item met all of the MTRs. Id. The solicitation stated further that “[i]f any proposed products do not meet MTRs (literature review) and/or physical inspection as specified, the proposal will be considered non-responsive and eliminated from further consideration.” Id.

Relevant here, the solicitation requirements include an “Advanced Electric Bed Frame” as MTR 1a, and a “Basic Electric Bed Frame” as MTR 1b, and the solicitation specified minimum measurement requirements for each product. Id. at 63. For the advanced electric bed frame, the solicitation identified the MTRs as: “minimum length of 80 inches and width of 36 inches; Bed must have the ability to adjust both length (up to at least 84 inches) and width (up to at least 42 inches); Bed must be able to accommodate bed side rails (No Mattress)[.]” Id. For the basic electric bed frame, the solicitation announced that the “[m]odel should be made available meeting 80 [inches] x 36 [inches] that does not require adjustable capability (No Mattress).” Id. The solicitation specified that if, following the phase I product literature review, the agency determined that all MTRs were preliminarily met, then the item was “considered acceptable for the physical evaluation” and offerors would proceed to phase II. Id. at 61. For phase II, offerors were required to submit the actual bed product for evaluators to conduct a “[p]hysical measurement of bed frame length and width using tape measure with bed in supine position.” Id. at 63.

After Joerns submitted a timely proposal, agency evaluators reviewed the product literature accompanying Joerns's technical proposal and determined that Joerns's proposal preliminarily met all solicitation requirements and should proceed to phase II. COS at 5-6; AR, Tab 6.1, Phase 1 Consensus Evaluation at 2. The agency then invited Joerns to deliver its bed products to the VA for the phase II physical evaluation. AR, Tab 3.2, Invitation to Phase II at 179.

During the phase II physical evaluation, agency subject matter experts measured Joerns's proposed advanced electric bed frame as adjustable only up to 41.5 inches in width. AR, Tab 6.2, Consensus Evaluation Phase II at 16-17; COS at 6; Supp. COS at 3. Consequently, the agency assessed a deficiency to Joerns's proposal because the proposed bed frame did not satisfy the solicitation's minimum width requirement of being adjustable to at least 42 inches. AR, Tab 6.2, Consensus Evaluation Phase II at 16-17. The agency similarly assessed a deficiency for Joerns's proposed basic electric bed frame, which evaluators measured at 34.5 inches in width--falling short of the 36 inches required by the solicitation. Id. Based on these two deficiencies, the agency determined that Joerns's technical proposal failed to satisfy all 26 MTRs and eliminated Joerns's proposal from further consideration. Id.; COS at 6.

After receiving notification of its exclusion from the competition, Joerns requested and received a debriefing and then filed this protest.

DISCUSSION

Joerns challenges numerous aspects of the VA's evaluation of Joerns's proposal, including the agency's assessment of two deficiencies for failing to meet the solicitation's MTRs governing bed frame width (MTRs 1a and 1b). Protest at 20-61.[2] In this regard, Joerns asserts that commercial industry standards call for labeling electric bed frames using “nominal measurements” instead of “actual measurements.” Id. at 20-21. Joerns contends that the VA should have conducted the evaluation in accordance with this “nominal measurement approach” instead of excluding Joerns based on the “actual measurement” of its bed frames. Id. at 22-37. The protester also complains that the agency allowed Joerns to proceed to phase II of the technical evaluation even though Joerns's product literature indicated that the width of its bed frames fell short of the solicitation's minimum width requirement. Id. In Joerns's view, the agency's decision to allow Joerns's non-compliant proposal beyond phase I was “implicit recognition that the [s]olicitation was not meant to impose actual minimum width requirements that would be used to exclude offerors that did not meet or exceed the bed widths outlined in the procurement.” Id. at 28. Finally, Joerns asserts that the agency engaged in disparate treatment by rejecting Joerns's proposal but accepting a non-compliant proposal submitted by its competitor, DiSorb Systems. Protest at 21-37; Comments & Supp. Protest at 1-45.

The agency disputes Joerns's assertion that the solicitation sought compliance with “nominal measurements,” and argues that the solicitation instead specified clear objective measurements all bed products were required to meet to be considered acceptable. See COS at 5-6. The agency contends that nowhere in the solicitation did the agency indicate or imply that the required measurements were “nominal”--or that the agency intended to accept proposals for bed products with measurements that only “approximate” the solicitation's requirements. Id. The agency notes further that the solicitation included two separate evaluation phases specifically designed to ensure that proposed products strictly complied with the solicitation's requirements--with the second phase entailing the physical measurement of the proposed bed frame, with a tape measure, to verify the accuracy of statements in offerors' product literature. Id. at 5-6, 11; Memorandum of Law (MOL) at 6. The agency states that it evaluated both Joerns's and DiSorb's proposals consistent with the solicitation criteria and reasonably determined, following the phase II physical measurement evaluation, that DiSorb's proposed bed frame met the solicitation's minimum width requirements and Joerns's did not. Supp. COS at 2-6. Accordingly, the agency maintains that its evaluation of Joern's proposal, including the VA's assessment of two deficiencies for failing to comply with the solicitation's MTRs, was reasonable, consistent with the terms of the solicitation, and properly formed the basis for excluding Joerns from further consideration.[3] We agree with the agency.

In reviewing protests challenging an agency's evaluation of proposals, our Office does not reevaluate proposals or substitute our judgment for that of the agency; rather, we review the record to determine whether the agency's evaluation was reasonable and consistent with the solicitation's evaluation criteria, as well as applicable statutes and regulations. See, e.g., Batelco Telecomms. Co. B.S.C., B-412783 et al., May 31, 2016, 2016 CPD ¶ 155 at 3. In addition, where a dispute exists as to a solicitation's actual requirements, we will first examine the plain language of the solicitation. DAI Global, LLC, B‑416992, Jan. 17, 2019, 2019 CPD ¶ 25 at 4. When a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions. Crew Training Int'l, Inc., B‑414126, Feb. 7, 2017, 2017 CPD ¶ 53 at 4. Finally, a proposal that fails to conform to the material terms and conditions of the solicitation is considered unacceptable and may not form the basis for award. Red One Med. Devices, LLC, B‑419030, B-419030.3, Nov. 16, 2020, 2020 CPD ¶ 381 at 3-4.

Here, based on our review of the record, we find no reason to question the agency's evaluation of Joerns's proposal, including the agency's assessment of two deficiencies based on Joerns's failure to comply with the solicitation's MTRs. We address the protester's principal arguments below.[4]

As an initial matter, we find no support in the solicitation's plain language for the protester's argument that “commercial industry standards” compel the agency to accept bed products with measurements that fall short of those announced in the solicitation. Instead, the solicitation announced specific MTRs each bed product was required to meet to be considered acceptable, with specific width requirements for each bed frame described in precise measurement terms. See RFP at 61. Further, the plain language of the solicitation's bed frame evaluation criteria required, first, the review of product literature to confirm the proposed bed frames' alignment with the solicitation's measurement requirements, and, second, a physical examination of the product using a “tape measure” to confirm compliance. Id. at 61-62. In light of this unambiguous solicitation language, we see no basis to conclude that the technical evaluation factor was intended to do anything other than confirm compliance with the specific measurement terms the solicitation identified as minimum requirements.[5] See id.

Further, we are not persuaded by the protester's contention that the VA's acceptance of Joerns's proposal into phase II is evidence the agency intended the solicitation's bed frame measurements to be “nominal” and not “actual.” In this regard, Joerns argues that the agency's acceptance of Joerns's proposal during the phase I evaluation shows that the agency changed the evaluation from one intended to confirm “nominal” compliance to one that unfairly required “actual” compliance in phase II. In support of this point, the protester notes that the agency accepted Joerns's proposal into phase II despite Joerns's technical literature indicating it proposed a basic electric bed frame with a “standard 35 [inch] width[.]” See Protest at 22, 31 (citing AR, Tab 7, Joerns Technical Proposal at 8). The agency explains, however, that Joerns's technical literature also indicated in multiple areas that the proposed bed frames aligned with the solicitation's minimum width requirements of 36 and 42 inches. COS at 7-8. For example, under a section in its product literature that Joerns highlighted as compliant with MTR 1a, Joerns indicated a bed width of “35 [inch] and 36 [inch] compatible.” AR, Tab 7, Joerns Technical Proposal at 27. In light of the inconsistent information in Joerns's product literature, the agency states that it used discretion to determine Joerns “preliminarily met” the MTRs and could proceed to the phase II physical measurement evaluation. COS at 8; MOL at 6. The agency notes further that it “specifically implemented the two-phase evaluation for this very purpose, to either deny or confirm the accuracy of the offerors' literature.” MOL at 6.

In our review of the record, we see no support for the protester's argument that the agency changed its evaluation standards or otherwise did not intend to strictly apply the solicitation's MTRs when evaluating proposals in both phases. In this regard, the record reflects that during both phases the agency evaluated proposed bed frames based on their alignment with the plain requirements of the solicitation MTRs. For example, the phase I consensus evaluation stated that the agency reviewed the offerors' product literature to determine “that all MTRs are preliminarily met.” AR, Tab 6.1, Consensus Evaluation Phase I at 2. Additionally, the phase II consensus evaluation indicated that Joerns was excluded based on the physical measurement of Joerns's proposed bed frames as falling short of the solicitation's minimum width requirements. AR, Tab 6.2, Consensus Evaluation Phase II at 16-17 (noting that agency evaluators measured Joerns's basic electric bed frame width as 34.5 inches and the advanced electric bed frame width as 41.5 inches). In sum, we see no support in the record for the argument that the agency did not intend to strictly apply the solicitation's minimum measurement requirements. Moreover, even if the agency erred by failing to exclude Joerns's proposal in phase I, we see no basis to conclude that Joerns was prejudiced by this error since Joerns was later excluded based on the actual physical measurement of its proposed bed frames.[6]

Nor are we persuaded by the protester's suggestion that amorphous “industry standards” alter the meaning of the objective measurement figures stated unambiguously in the solicitation. As noted above, Joerns does not dispute that it proposed basic electric bed frames that do not measure at least 36 inches in width and advanced electric bed frames that do not measure at least 42 inches in width. Instead, Joerns argues that the agency was obliged to accept the proposed bed frames because industry standards for commercial bed frames essentially act to override solicitation language in commercial bed frame procurements. See Protest at 22, 27-37. We disagree. As our Office stated previously when responding to similar protest arguments, the fact that a proposed item may be acceptable under industry standards does not make the item acceptable under a mandatory solicitation requirement the proposed item does not meet.[7] Red One Med. Devices, LLC, supra at 3-4.

Indeed, the protester does not meaningfully argue that the plain language of the solicitation indicated the agency intended to accept “nominal” compliance or that the solicitation expressly incorporated any “commercial industry standards.” Rather, Joerns argues broadly that the commercial electric hospital bed industry employs “implicit standards” that are shaped by commercial building standards, such as the 2018 International Building Code (IBC), which the protester asserts require hospital egress doors to provide a minimum opening width of 41.5 inches. Protest at 27-33. In this regard, Joerns states that “commercially available hospital beds offered in the 36 [inch] and 42 [inch] nominal product categories” are “constructed to be no wider in actual measurement than 41.5 [inches] to ensure egress through healthcare facility doorways measuring 41.5 [inches] in compliance with the 2018 IBC industry standards.” Id. at 30. Because of these healthcare facility buildings standards, Joerns asserts that the 2018 IBC “set the industry-standard measurements that have not only long informed the dimensions of commercial hospital beds but also likely informed the [s]olicitation's required nominal dimensions of 36 [inches] and 42 [inches].” Id. Joerns contends that industry participants identify their products as meeting these “nominal” dimensions in their product literature, even though their products actually measure less than these widths to conform with the 2018 IBC building standards. Id.

The VA responds by noting that the 2018 IBC was intentionally not incorporated by the solicitation. COS at 9-10; MOL at 3. The agency further notes that, in any event, the 2018 IBC is not relevant because this solicitation is for hospital beds for home use designed for disabled and elderly individuals who are being cared for outside of the hospital--not for hospital beds utilized in healthcare facilities where the 2018 IBC could apply. COS at 9, 11. Based on our review of the record, we likewise fail to see the relevance of the 2018 IBC to this solicitation for in-home hospital beds. More to the point, we are not persuaded by the protester's assertions that these “implicit standards” act to override the plain language of the solicitation and the unambiguous evaluation requirement that proposed bed frames meet specific objective measurements confirmed by a physical examination with a tape measure.

Finally, after receiving the agency report, Joerns raised supplemental protest arguments contending that the agency disparately evaluated Joerns's proposal relative to the phase II evaluation of DiSorb's proposal.[8] Comments and Supp. Protest at 3-14. In this regard, Joerns asserts that DiSorb proposed [DELETED], which would have been found to be noncompliant had the agency used the same measurement standard applied to Joerns's proposed beds. Id. As an initial matter, the protester acknowledges that DiSorb's product literature shows bed width measurements as 36 inches or 42 inches in numerous places, which the agency assessed as meeting the solicitation's requirements. Id. at 4. Nevertheless, Joerns cites measurement figures it obtained through a publicly-available user manual for [DELETED] indicating that the “actual widths” of DiSorb's proposed basic and advanced beds are 35.5 inches and 41.5 inches respectively, which Joerns notes is nearly identical to the actual bed widths of Joerns's proposed products. Id. (citing AR, Tab 3.2, [DELETED]). Joerns contends that the agency advanced DiSorb's deficient proposal through phase II but eliminated Joerns--“all the while asserting that it applied strict actual measurement standards to every offeror.” Id. at 7.

The agency responds by noting that the phase I product literature submitted by DiSorb explicitly and repeatedly referenced bed widths of 36 inches and 42 inches. Supp COS at 2 (citing AR, Tab 8, DiSorb Technical Proposal at 7, 34). The agency explains further that the user manual that Joerns cites for the 35.5-inch and 41.5-inch “actual” measurements of the [DELETED] bed is not the same [DELETED] bed that DiSorb proposed. See Supp. COS at 2-3. Accordingly, the VA argues that this protest argument disregards the relevant portions of the product literature submitted by DiSorb, and produced in the agency report, in favor of “inapplicable information found on the internet.” Supp. COS at 2-3; Supp. MOL at 2-3. The agency also notes that, regardless, the actual [DELETED] bed products proposed by DiSorb were physically measured, with a tape measure, in phase II--and met the solicitation's MTRs. See COS at 3; AR, Tab 6.2, Consensus Evaluation Phase II at 3-4.

Where a protester contends that the evaluation resulted from unequal treatment, the protester must show that the allegedly unequal ratings did not stem from differences between the offerors' proposals. The Red Gate Grp., Ltd., B-410466.8, May 12, 2017, 2017 CPD ¶ 169 at 6.

Our review of the record does not support Joerns's claim that the agency applied different standards when evaluating Joerns's proposal as opposed to DiSorb's.[9] In this regard, Joerns relies on numerous inferences arising from its core assertion that, in the commercial electric bed industry, “nominal measurements are used for marketing and product identification, not as representations of strict, actual physical dimensions.” Resp. to Supp. AR at 5. Based on this premise, and the fact that Joerns itself proposed bed products with narrower actual widths than those displayed in its product literature, Joerns asserts that DiSorb must have taken a similar approach and suggests that the agency must have “failed to correctly measure” DiSorb's bed “in the same way it measured Joerns's bed at 34.5 [inches.]”[10] We see no support for these arguments in the record before us.

First, the record reflects that Joerns's proposed advanced and basic electric bed frames were physically measured by the agency's subject matter experts during phase II of the technical evaluation as falling short of the solicitation's minimum bed width requirements. AR, Tab 6.2, Consensus Report Phase II at 16-17; Supp. COS at 3. In contrast, the beds proposed by DiSorb were physically measured as meeting the solicitation's minimum bed width requirements. AR, Tab 6.2, Consensus Report Phase II at 3-4. On this record, we find that differences in the ratings stemmed from differences in the offerors' proposals. See The Red Gate Grp., Ltd., supra at 6.

Second, we see no support for Joerns's suggestion that the agency's rejection of Joerns's proposal, and acceptance of its competitor's, is evidence that the agency unfairly or incorrectly measured the offerors' bed frames during the phase II evaluation.[11] Moreover, we see no evidence that the agency subject matter experts failed to measure the bed frames consistently across offerors and in accordance with the solicitation criteria. As we have explained, government officials are presumed to be competent and to act in good faith, without unfair or biased motivations. See, e.g., Career Innovations, LLC, B-404377.4, May 24, 2011, 2011 CPD ¶ 111 at 7-8 (noting that government officials are presumed to act in good faith, and that we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition). Here, Joerns submits that we should disregard the contemporaneous record memorializing the agency's physical measurement of DiSorb's proposed bed frames based on inferences arising out of Joerns's own decision to propose bed frames that failed to meet the solicitation's unambiguous minimum requirements. We decline to do so.

The protest is denied.

Edda Emmanuelli Perez
General Counsel