BNUMBER: B-261845.2
DATE: September 29, 1995
TITLE: Este Medical Services, Inc.
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REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Este Medical Services, Inc.
File: B-261845.2
Date: September 29, 1995
D. Lee Roberts, Jr., Esq., Ware, Snow, Fogel, Jackson & Greene, for
the protester.
Maj. Michael J. O'Farrell, Jr., and Roy L. Masengale, Esq., Department
of the Army, for the agency.
Andrew T. Pogany, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
1. Contracting agency reasonably eliminated the protester's proposal
from the competitive range, although it was rated as susceptible to
being made acceptable, and even though the protester's proposal had
previously been included in the competitive range, where technical
weakness concerning the protester's experience as reflected in its
revised proposal, which was submitted after discussions, caused it to
receive the [deleted] lowest technical rating, such that it no longer
had a reasonable chance of being selected for award.
2. Contracting agencies are not obligated to afford all-encompassing
discussions or to discuss every element of a competitive range
proposal; agencies are only required to lead offerors into the areas
of their proposals considered deficient.
DECISION
Este Medical Services, Inc. protests the exclusion of its proposal
from the competitive range under request for proposal (RFP) No.
DADA13-94-R-0019, issued by the Department of the Army for nursing
services at two health facilities.
We deny the protest.
The RFP, issued on July 29, 1994, contemplated the award of a
fixed-price indefinite quantity contract (based on estimated hours of
nursing services required) for a base period and two 1-year options.
The RFP stated that award would be made to a single offeror who
submitted the "best overall proposal" considering the stated
evaluation factors. The RFP contained two evaluation factors: (1)
technical/quality; and (2) price, which was of lesser importance. The
technical/quality factor had two subfactors, which were of equal
importance, experience/capability/availability[1] and understanding
the requirement.[2] Finally, the RFP stated that price would be
evaluated but not scored.
Seventeen proposals were received by September 12, 1994, the amended
date for receipt of initial proposals. The proposals were evaluated
by a source selection evaluation board (SSEB); the contracting officer
was designated the source selection official (SSO). As relevant here,
the SSEB's initial evaluation resulted in Este being ranked [deleted]
of [deleted] offerors. Specifically, the SSEB expressed concern about
Este's experience because it was unclear whether the firm ever held a
contract in its own name. Further, while Este in its proposal
referred to a relationship with International Health Services (IHS),
an experienced company, the proposal did not show a joint venture
relationship or any other legally binding commitment by IHS to support
Este in performing this contract.[3] Nevertheless, the contracting
officer included all offers, including Este's, in the competitive
range.
On April 24, 1995, the agency, among other things, asked Este the
following discussion question:
"[Provide d]etails regarding any contract that [Este] has held in
its own company name. You are advised that since [Este] is the
offeror and if a contract were awarded, Este would be legally
bound to perform. Any agreements between the prime contractor
and other companies is an autonomous agreement. Therefore,
[Este] must be found to be capable of performance on its own
merit/previous experience."
Revised proposals were received. Este stated in its revised proposal
that Este was established in 1994 and that it has owners in "common"
with IHS and that IHS was its "mentor." In addition, Este stated that
it was awarded only one contract in the past to provide Fort Knox the
services of two midwives. The agency states that it was unable to
find evidence that Este met the minimum experience requirements or
that Este had established a subcontracting arrangement with IHS or
obtained any other legally binding commitment from the firm to assist
Este in the performance of this contract. The protester in fact
stated in its proposal that IHS and Este were separate legal entities.
The agency also concluded that Este had provided only one previous
reference in its own name (to provide two midwives), which was not
"considered comparable to this [current] requirement in terms of size
and scope."[4]
After this second evaluation by the agency following discussions, Este
was rated [deleted] of [deleted] firms.[5] The contracting officer
established a competitive range of two proposals; two other firms
withdrew their offers. Thirteen offerors, including Este, were
excluded. This protest followed.
In its protest, Este does not directly challenge the agency's
substantive findings about its lack of experience to meet the RFP
requirements. Rather, Este argues several procedural flaws which
allegedly occurred during evaluation. Specifically, Este challenges
the adequacy and accuracy of the 1,000-point scoring system and the
various numerical "cut-offs" for exceptional, good, acceptable,
susceptible and unacceptable; alleges that the agency failed to
adequately document the deficiencies it found in Este's technical
proposal; and alleges that the agency failed to conduct meaningful
discussions because the agency's written discussion question about its
experience was not sufficiently clear and was misleading.
Our examination of an agency's decision to exclude a proposal from the
competitive range begins with the agency's evaluation of proposals.
Labat-Anderson Inc., B-246071.4, Oct. 9, 1992, 92-2 CPD 244. In
reviewing an agency's technical evaluation, we will not reevaluate the
proposal but will examine the record of the agency's evaluation to
ensure that it was reasonable and in accord with stated evaluation
criteria, and not in violation of procurement laws and regulations.
Id. The competitive range consists of all proposals that have a
reasonable chance of being selected for award, generally including
proposals that are technically acceptable or reasonably susceptible of
being made acceptable through discussions. Intown Properties, Inc.,
B-250392, Jan. 28, 1993, 93-1 CPD 73. However, even a technically
acceptable proposal may be eliminated by comparing the relative
ranking and merit of the higher-rated proposals to the proposal in
question; thus, an agency may eliminate a technically acceptable
proposal based on a relative evaluation and ranking of the merits of
proposals. See Coe-Truman Technologies, Inc., B-257480, Sept. 12,
1994, 94-2 CPD 136. If the agency's evaluation of proposals is
reasonable, there is nothing improper in an agency's making more than
one competitive range determination and dropping a firm from further
consideration. Labat-Anderson Inc., supra.
Because the protester has not submitted any substantive evidence
rebutting the findings of the agency that Este's revised proposal,
even after discussions, was seriously flawed and materially inferior
with respect to experience both objectively and on a relative basis
with respect to higher-rated proposals, we conclude that the agency's
technical evaluation and findings concerning this deficiency were
reasonable. We think the agency reasonably decided that Este's
experience, which consisted of a single contract for two midwives,
failed to meet the minimum requirements of the RFP. Further, since
these findings concerning Este's experience were in narrative form, we
find irrelevant the arguments of the protester concerning the adequacy
and accuracy of the numerical point system generally used by the
agency during the evaluation. Even if we were to conclude that the
point scoring was incorrect the narrative evaluation which found
Este's experience deficient provides a rational basis for the
rejection of Este's proposal. Moreover, since the contracting officer
was provided by the evaluators, through their narrative, with
sufficient information concerning Este's experience on which to
rationally conclude that the firm's proposal was deficient and
relatively inferior, we find no merit to the protester's argument that
the agency failed to adequately document the protester's deficient
experience.
Finally, concerning the protester's allegation that the agency failed
to conduct meaningful discussions, agencies are not obligated to
afford all-encompassing discussions or discuss every element of a
competitive range proposal; agencies are only required to lead
offerors into the areas of their proposals considered deficient. See
donald clark Assocs., B-253387, Sept. 15, 1993, 93-2 CPD 168. Here,
while the agency's discussion question did not specifically advise the
protester to proceed to form a joint venture, teaming or
subcontracting relationship with IHS, as the protester argues the
agency should have, we think the agency's discussion question, quoted
above, adequately led the firm into the area of its experience, which
the discussion question clearly conveyed to be a deficiency. Given
the specific experience requirements of this RFP, and the discussion
question, the protester was reasonably placed on notice that the
evidence of its experience in its revised proposal was not adequate to
meet solicitation requirements.
The protest is denied.
Comptroller General
of the United States
1. Concerning the offerors' experience, the RFP stated that offers
would only be considered from firms which are regularly established in
the business solicited and can establish evidence of their reliability
and the ability of personnel directly employed or supervised by them
to render prompt and satisfactory service. The RFP further stated
that "[t]he offeror shall have had not less than three years
successful experience in recruiting direct health care provider
personnel. Ability to meet the foregoing experience requirements and
the adequacy of the information submitted will be considered in
determining the competitive range."
2. During the evaluation, the agency scored the technical merits of
the proposals. The maximum possible technical score was 1,000 points.
The scores were described in the agency's source selection evaluation
plan as follows: (1) exceptional ([deleted] - 1,000 points); (2) good
([deleted] - [deleted]); (3) acceptable ([deleted] - [deleted]); (4)
susceptible ([deleted] - [deleted]); and (5) unacceptable (0 -
[deleted]).
3. Este merely stated in its proposal that it would "utilize the
resources, experience, and capabilities of IHS, its mentor, in
providing services [to the Army]. IHS, owned by Este principal
Charles V. Rice, is an experienced [contractor]. For purposes of this
proposal, however, all experience which is drawn from either owner in
common, or IHS, will be referred to as Este experience or capability."
4. The record shows that other firms had experience exceeding the
minimum requirements of the RFP.
5. Concerning price, the agency evaluated Este's price as
approximately [deleted] million. Revised prices ranged from [deleted]
million to [deleted] million. The agency's independent government
estimate was [delted] million. Contrary to the protester's arguments
in its comments on the agency report, the agency analyzed and
evaluated prices, and the contracting officer was fully aware of
Este's price in making his determination to exclude the firm from
competition. There is no evidence to show that the agency "ignored
the lower proposed cost of Este." As discussed below, despite its
generally lower price, Este's technical proposal was reasonably
determined by the agency to have no reasonable chance for award
principally because of its inadequate experience record.