BNUMBER: B-261886
DATE: October 30, 1995
TITLE: Dylantic, Inc.
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Matter of:Dylantic, Inc.
File: B-261886
Date: October 30, 1995
Howard W. Roth III, Esq., Vandeventer, Black, Meredith & Martin,
L.L.P., for the protester.
John R. Osing, Jr., Esq., Department of the Navy, for the agency.
Jeanne W. Isrin, Esq. and David A. Ashen, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest against rejection of proposal as technically unacceptable and
subsequent award on the basis of initial proposals to next
lower-priced offeror is denied where protester failed to comply with
solicitation requirement for detailed information demonstrating
compliance with qualifications requirements for pharmacy technicians;
since the solicitation clearly advised offerors of the agency's intent
to award without discussions, and there was a reasonable basis for
concluding that awardee had submitted the low, technically acceptable
offer, agency was not required to conduct discussions.
DECISION
Dylantic, Inc. protests the rejection of its proposal as technically
unacceptable and the award of a contract to The Chesapeake Center,
Inc. under request for proposals (RFP) No. N62645-95-R-0026, issued by
the Naval Medical Logistics Command for pharmacy technician services
for the three Branch Medical Clinics associated with the Naval Medical
Center, Portsmouth, Virginia.
We deny the protest.
The RFP contemplated the award of a firm, fixed-price contract to the
low-priced, technically acceptable offeror for a 1-year base period
plus 4 option years for the full-time services of 21 pharmacy
technicians. Offerors were to submit both technical and cost
proposals. Regarding the technical proposal, the RFP set forth
detailed requirements for information pertaining to the qualifications
of the proposed individuals to perform the required services.[1]
Solicitation clause L.18, entitled "Instructions For Preparation of
Proposals," provided in pertinent part that:
"(1) . . . [t]he technical proposal shall include the following
documentation:
"(i) (A) Proof of graduation from a Pharmacy Technician
program accredited by the American Society of Hospital
Pharmacists (ASHP) or proof of completion of a formal (i.e.
technical or hospital based program) pharmacy technician
training program. A copy of the certificate is required, or,
"(i) (B) Proof of experience of at least 12 months within the
preceding 36 months as a pharmacy technician.
. . . . .
"(iii) Letters of recommendation from two practicing
physicians, pharmacists, or pharmacy supervisors attesting to
the health care worker's clinical skills. Reference letters
must include name, title, phone number, date of reference,
address and signature of the individual providing reference.
"(iv) Proof of current Basic Life Support, Level C (BLS-C)
[Cardiopulmonary Resuscitation and Emergency Cardiac Care
Provider training certification]. A copy of a current BLS-C
card is required."
The above clause specifically cautioned offerors that "[a]ny proposal
which does not offer at a minimum, that which is requested in this
solicitation, may be determined to be substantially incomplete and not
warrant any further consideration." In addition, the RFP stated the
government's intention to evaluate proposals and award a contract
without discussions, and specifically warned that initial offers
should contain an offeror's best terms from a cost or price and
technical standpoint.
Ten proposals were received by the March 23, 1995, closing time.
Although Dylantic, the incumbent contractor for these services,
submitted the lowest-priced offer, its proposal was found to be
technically unacceptable due to deficiencies in the information
provided to establish the qualifications of the individuals it
proposed to perform the required services. Of 27 candidates proposed,
only 7 were found acceptable; the remaining 20 were judged
unacceptable based on the failure to satisfy at least one of the
employee qualifications requirements. Upon learning of the resulting
award to the second-low offeror (Chesapeake), Dylantic filed this
protest with our Office.
Dylantic argues that it furnished sufficient information to
demonstrate adequate qualifications for at least 21 of the proposed
candidates. In addition, Dylantic contends that because it is the
incumbent contractor for these services, and some of the proposed
candidates found unacceptable were currently working as pharmacy
technicians at the facilities to be staffed under the contemplated
contract, contracting officials should have been well aware of their
qualifications. In any case, according to the protester, it should
have been allowed to submit clarifications to satisfy the alleged
deficiencies or, in the alternative, the agency should have held
discussions.
In reviewing an agency's technical evaluation, we will not reevaluate
proposals; rather, we will examine the record to ensure that the
evaluation was reasonable and consistent with the RFP evaluation
criteria. Maritime Management, Inc., B-260311.2; B-260311.3,
July 11, 1995, 95-2 CPD 11. In a negotiated procurement, any
proposal that fails to conform to material terms and conditions of a
solicitation should be considered unacceptable and may not form the
basis for an award. IT Corp., B-258636 et al., Feb. 10, 1995, 95-1
78. We find that the Navy reasonably determined Dylantic's proposal
to be technically unacceptable because of a failure to satisfactorily
establish the qualifications of its proposed candidates, as required
by the solicitation.
Three of Dylantic's proposed candidates were found unacceptable due to
the lack of a current BLS-C Cardiopulmonary Resuscitation and
Emergency Cardiac Care Provider training certification card in their
respective information packages--two packages contained no card, while
the third included a card which had expired on March 15, prior to the
March 23 closing time. Given this failure to demonstrate completion
of the required medical training, which Dylantic does not rebut, we
conclude that the three candidates were properly found unacceptable.
Three more proposed candidates were found unacceptable because their
information packages did not demonstrate compliance with the
solicitation requirement for either graduation from a pharmacy
technician program or a minimum of 12 months experience in the
preceding 36 months as a pharmacy technician. One individual's
package did not show any pharmacy technician experience or completion
of an accredited pharmacy technician program. The remaining two
individuals' packages contained no proof of graduation from a pharmacy
technician program. Although their packages indicated pharmacy
technician experience, they did not indicate dates of employment, so
that it could not be determined whether they possessed the requisite
12 months experience in the preceding 36 months. While Dylantic
maintains that the individuals are qualified, and has provided the
relevant dates of employment for the latter two individuals in its
comments on the agency report, its failure to furnish the required
information in its proposal properly led the agency to find them
unacceptable.
The seventh proposed candidate was found unacceptable because her
information package contained only one acceptable letter of
recommendation rather than the two required by the solicitation. A
second letter was signed by an individual identified only as a "line
supervisor," whereas the RFP required that the letter be signed by a
practicing physician, pharmacist or pharmacy supervisor. Dylantic
responds that the listed "line supervisor" is a pharmacy supervisor,
but nothing in the letter of recommendation itself indicated that; the
agency therefore reasonably determined the candidate to be
unacceptable.
In addition, the Navy found three other candidates (as well as one of
the candidates above) unacceptable because, while their packages
contained photocopies of the front side of a current BLS-C
Cardiopulmonary Resuscitation and Emergency Cardiac Care Provider
training certification card, they did not include copies of the back
of the card. The required BLS-C card contains information on its
front side--the individual's name, course name, issue date and
expiration date--and different information on its backside--name of
the organization conducting the training, instructor's name,
instructor's identification number and the holder's signature. The
Navy reports that without the information on the backside, the
certification of completion of the required training cannot be
verified. Since the information on the backside was required by the
solicitation to be included in the technical information packages and
was necessary to assure compliance with a material solicitation
requirement for medical training, the information itself was material
such that failure to furnish it for a proposed individual rendered the
candidate unacceptable.
In summary, we find that the Navy reasonably concluded that Dylantic
failed to furnish for at least 10 of the 27 candidates for the
pharmacy technician positions sufficient information to demonstrate
compliance with the detailed personnel qualification requirements of
the solicitation. Since 21 acceptable candidates were required,
Dylantic's failure rendered its proposal unacceptable. (Given this
conclusion, we need not consider the acceptability of the other
candidates found unacceptable by the agency.)
Although Dylantic refers to its status as an incumbent contractor,
such status does not serve as a substitute for the omitted
information. An agency is not required to overlook a flawed proposal
on the basis of the offeror's prior performance; on the contrary, all
offerors are expected to demonstrate their capabilities in their
proposals. Pedus Bldg. Servs., Inc., B-257271.3 et al., Mar. 8, 1995,
95-1 CPD 135. Likewise, the mere fact that some of Dylantic's
proposed candidates already work at one of the installations covered
by the contemplated contract does not serve as a substitute for the
omitted information; the three Branch Medical Clinics associated with
the Naval Medical Center, Portsmouth are located within a 30-mile
radius of the medical center, and the protester has offered no
evidence establishing that the evaluators in fact were aware of the
qualifications of the proposed individuals. Further, although a
contracting agency in evaluating proposals may consider evidence from
sources outside the proposals, see Continental Maritime of San Diego,
Inc., B-249858.2; B-249858.3, Feb. 11, 1993, 93-1 CPD 230, agencies
are not obligated to go in search of needed information, specifically
requested by the solicitation, which the offeror has omitted or failed
to adequately present. See Telos Field Eng'g, B-251384, Mar. 26,
1993, 93-1 CPD 271.
Dylantic complains that it was not given a chance to correct the
informational deficiencies in its proposal through either the
clarification process or discussions. However, since the information
omitted from Dylantic's proposal was material in establishing the
qualifications of the proposed individuals to perform the services,
and thus essential for determining the acceptability of Dylantic's
proposal, its omission could not properly be regarded as a minor
informality or uncertainty to be cured through clarifications. IT
Corp., supra. As for the Navy's determination not to conduct
discussions with offerors, we note that the RFP clearly advised
offerors of the agency's intent to award without discussions.
Therefore, Dylantic could not reasonably presume that it would have a
chance to clarify or improve its proposal through discussions; the
burden was on Dylantic to submit an initial proposal that adequately
demonstrated its own merits, and the protester ran the risk of not
receiving award by failing to do so. Infotec Dev., Inc., B-258198 et
al., Dec. 27, 1994, 95-1 CPD 52. Since the RFP clearly advised
offerors of the agency's intent to award without discussions, and
there was a reasonable basis for concluding that Chesapeake had
submitted the low, technically acceptable offer, there is no basis to
object to the agency's decision not to conduct discussions. Federal
Acquisition Regulation 15.610(a)(4); Facilities Management Co.,
Inc., B-259731.2, May 23, 1995, 95-1 CPD 274.
Although Dylantic notes that it offered a lower price, approximately 1
percent lower than the awardee's, since Dylantic's proposal was
unacceptable, it could not form the basis for award. Therefore, the
fact that award was made to a higher-priced offeror provides no basis
to object to the award. Western Environmental Corp., B-258567, Jan.
30, 1995, 95-1 CPD 46.
The protest is denied.
Comptroller General
of the United States
1. The RFP stated that the contractor must agree "to initiate
performance of this contract using only the health care worker(s)
whose professional qualifications have been determined technically
acceptable by the Government as part of the source selection process."