BNUMBER:  B-261333
DATE:  September 12, 1995
TITLE:  Harry Feuerberg & Steven Steinbaum

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Matter of:  Harry Feuerberg & Steven Steinbaum

File:       B-261333

Date:       September 12, 1995
                                                            
Ron Tudor, Esq., for the protester.
Kenneth A. Martin, Esq., and Michael W. Kauffman, Esq., Riley & 
Artabane, for Coastal Government Services, Inc., an interested party.
Bryant S. Banes, Esq., Department of the Army, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.
                                                            
DIGEST

1.  Protest that solicitation requirement for board certified 
physician radiologists improperly restricts competition is denied 
where agency states the certification requirement is necessary to 
ensure the safety and reliability of patient care and protesters fail 
to show that the agency's justification is unreasonable. 

2.  Protest that solicitation provisions are unclear is denied where 
all provisions to which the protesters object reasonably describe the 
requirements and services to be performed.
                                                            
DECISION

Harry Feuerberg and Steven Steinbaum protest the terms of request for 
proposals (RFP) No. DADA10-95-R-0025, issued by the Department of the 
Army to acquire radiology services at 37 military treatment facilities 
(MTFs) within the Army Medical Command.  Feuerberg & Steinbaum, the 
incumbent contractors at the William Beaumont Army Medical Center in 
the El Paso area, allege that the RFP requirement regarding the use of 
board certified radiologists does not reflect the agency's actual 
minimum needs; that the agency failed to require medical malpractice 
liability insurance; that the RFP is unclear regarding the 
applicability of a compensation ceiling to this procurement and the 
Region VII definite/ indefinite requirements.  The protesters also 
contend that the RFP impermissibly bars the selected contractor from 
employing any radiologist who is the subject of an investigation 
concerning the radiologist's qualifications.[1]

We deny the protest.

The requirement was synopsized in the Commerce Business Daily on March 
1, 1995, and the agency issued the RFP on April 10 as a follow-on to 
current regional contracts for similar services, one of which the 
protesters are presently  performing in El Paso.  The RFP requires the 
selected contractor to provide qualified physicians to perform 
diagnostic radiology services at multiple MTF locations and regions 
under the control and general supervision of the MTF commander or 
chief of the clinic where the services are being provided.

The follow-on requirement is divided into nine geographic regions with 
each region having a minimum of one MTF.  The RFP also contains a 
detailed statement of work describing the various duties and tasks 
required, and sets forth specific requirements concerning the types of 
experience and licensing radiologists must possess, including the 
requirement that all radiologists be board certified or board eligible 
for certification within 2 years following completion of radiology 
residency.  As amended, the RFP contemplates awards of up to nine 
fixed-price indefinite delivery, indefinite quantity contracts for a 
base year with four 1-year options.  On June 8, the agency issued a 
clarification letter to all prospective offerors which, among other 
things, discussed the compensation ceiling which applies to all 
radiologists under this solicitation. 

Feuerberg & Steinbaum contend that the requirement for board certified 
radiologists is arbitrary and exceeds the government's minimum needs 
because the current contractor- provided civilian radiologists and 
military radiologists were not required to meet this standard.  On 
this basis, the protesters assert that some experienced radiologists 
would not remain eligible for employment, thereby limiting the 
competitive pool of radiologists from which contractors such as itself 
could employ.

In preparing a solicitation for supplies or services, a contracting 
agency must specify its needs and solicit offers in a manner designed 
to achieve full and open competition, 10 U.S.C.  2305(a)(1)(A) 
(1994), and may include restrictive provisions or conditions only to 
the extent necessary to satisfy the agency's needs.  10 U.S.C.   
2305(a)(1)(B).  Where a protester alleges that a requirement is unduly 
restrictive of competition, we will review the record to determine 
whether the requirement has been justified as necessary to satisfy the 
agency's minimum needs.  Sunbelt Indus., Inc., B-246850, Mar. 31, 
1992, 92-1 CPD  325.  Here, the record shows that the requirement for 
board certified radiologists was reasonably related to the agency's 
minimum needs. 

The Army concedes that it did not require either civilian or military 
radiologists currently performing similar services to be board 
certified or board eligible.  However, the agency explains that its 
decision to now require board certification was based on its 
obligation to ensure safe and reliable patient care and to improve the 
quality of its patient care mission.  According to the agency, its 
ability to provide safe and reliable radiology services will be 
enhanced by establishing a measurable minimum proficiency standard for 
the selected contractor's radiologists that should reduce the risk of 
substandard or negligent patient care and limit the government's 
potential liability resulting from such substandard or negligent care.  
To that end, the agency states that in recruiting military 
radiologists, it now requires them to possess board certification; in 
addition, board certification is now required as a minimum standard 
for promotion and retention of Army radiologists. 

The determination of the agency's minimum needs and the best method 
for accommodating those needs are primarily matters within the 
agency's discretion.  Johnson Controls, Inc.,      B-243605, Aug. 1, 
1991, 91-2 CPD  112.  Moreover, where, as here, a solicitation 
requirement relates to safety concerns, an agency has the discretion 
to set its minimum needs so as to achieve not just reasonable results 
but the highest possible reliability and effectiveness.  See United 
Terex, Inc., B-245606, Jan. 16, 1992, 92-1 CPD  84. 

We find the RFP's board certification requirement to be reasonable.  
In its comments on agency report, the protesters do not rebut the 
agency's need to obtain some assurance from a source independent of 
the selected contractor that the proposed radiologists can demonstrate 
a level of proficiency necessary to provide the required services but 
only asserts, based upon the prior requirement, that the certification 
requirement will result in reduced competition.  Feuerberg's & 
Steinbaum's disagreement with the agency's reasoned determination is 
not sufficient to show that the agency's determination was 
unreasonable.  Thus, the fact that these radiologists may have to 
obtain board certification does not establish that the Army's 
otherwise legitimate requirement was improper or that the agency acted 
unreasonably in requiring board certification for these follow-on 
services. 

Next, Feuerberg & Steinbaum object to the provision concerning 
malpractice liability.  Paragraph H.2 of the RFP entitled "Malpractice 
Liability" provides, in relevant part:

     "This is a personal service contract.  Contractor employees are 
     subject to supervision and direction of designated government 
     officials, . . . Malpractice allegations against contractor 
     employees based upon performance of this contract will be 
     processed in accordance with government policy for allegations 
     against its own employees.  The government is a self-insurer for 
     malpractice liability.  Contractor employees are not required to 
     carry malpractice insurance, and the government will not 
     reimburse or otherwise pay for such insurance . . . ."

The agency points out that paragraph H.2, quoted above, is entirely 
consistent with Department of Defense (DOD) Directive 6025.5, entitled 
"Personal Services Contracts for Health Care Providers," which exempts 
contractor personnel performing direct health care services from 
obtaining commercial malpractice liability insurance.  Feuerberg & 
Steinbaum argue that notwithstanding this DOD Malpractice liability 
insurance exemption, the Army should require contractor-provided 
radiologists to carry this insurance since it is the Department of 
Justice (DOJ), not DOD, which has the ultimate authority to defend the 
government in malpractice tort claims and that DOJ may determine that 
contractor-provided radiologists are not covered by the government's 
self-insurance.

We find no merit to this objection.  The government believes that 
under the circumstances of this contract it will be liable for any 
malpractice by the contractor's radiologists and that since it is a 
self-insurer no commerical malpractice liability insurance is 
required.  While the protesters argue that if they choose to maintain 
commercial malpractice insurance for their radiologists they may not 
be price competitive with other competitors who choose otherwise, that 
simply reflects a business decision each offeror has to make.  It does 
not establish that there is anything unreasonable with the 
government's position.  

The protesters also argue that the solicitation does not make clear 
whether a compensation ceiling applies to this contract or provide 
sufficient information regarding the definite quantity portion of 
services within Region VII.  

We think the solicitation was clear regarding a compensation ceiling.  
The protesters primarily base their complaint that the solicitation is 
unclear as to whether a compensation ceiling applies on an internal 
memorandum inadvertently included with the agency report which 
suggests that a compensation ceiling does not apply.  However, while 
the original solicitation did not state that a ceiling was applicable, 
the contracting officer, by amendment issued June 8 (after the protest 
was filed), specifically states that a compensation ceiling for 
radiologists does apply since this is an acquisition for personal 
services.  The ceiling limits radiologists to a full-time equivalent 
annual rate of $200,000, or a pro-rata rate of $100 per hour.  The 
amendment further states that while the ceiling does not apply to a 
corporation, any offeror is required to apply the compensation limits 
to each physician provider, that payment of direct rates in excess of 
the ceiling will constitute a breach of contract, and that the 
government intends to monitor compliance with the ceiling.  We think 
this amendment resolves the issue.

The protesters state that information obtained from contract 
radiologists currently performing at the Bliss Army Hospital reveals 
that the Bliss requirements may not be purchased under the contract 
and that the RFP is unclear as to which hours are definite and 
indefinite requirements.  The solicitation states the minimum quantity 
for Region VII is the total of routine clinic hours in the base year 
for contract line item numbers 0022AA, the Brooke Army Medical Center, 
and 0023AA, the William Beaumont Army Medical Center.  Thus, the 
definite quantity of hours are for Brooke Army Medical Center and the 
Williams Beaumont Army Medical Center.  Under the schedule, Bliss Army 
Hospital has no minimum definite quantity.  We think the RFP provides 
sufficient information as to which services constitute definite 
requirements and which do not.

Finally, the protesters object to the prohibition on employing 
radiologists under this contract who are the subject of pending 
complaints.  The protesters' concern is that this provision may 
encourage arbitrary or wrongful action by the agency in disciplining 
radiologists to obtain their removal from the contract.  First, we see 
nothing objectionable in the agency's desire to prohibit the use of 
radiologists who have complaints against them pending as this affects 
their hospital privileges and credentials.  Second, regarding the 
protester's concern that the process can be abused, there is no 
evidence that the procedures have been abused under the current 
contract which contains the identical prohibition and we are not 
prepared to assume that the agency will use this process in an 
arbitrary fashion.  We do not find this RFP provision objectionable 
since its purpose is to ensure that the selected contractor furnishes 
fully qualified radiologists.

The protest is denied.

 /s/ Ronald Berger
 for Robert P. Murphy
     General Counsel

1. The protesters also allege that some prospective offerors gained an 
unfair competitive advantage over other potential competitors as a 
result of allegedly receiving advance copies of the RFP and question 
whether all incumbent contractors had been solicited for these 
follow-on requirements.  Since Feuerberg & Steinbaum have furnished no 
evidence to support these allegations, and the record contains no 
evidence to support the protesters' allegations, we dismiss these 
grounds of protest.