BNUMBER:  B-262016.2; B-262016.3
DATE:  February 15, 1996
TITLE:  Marquette Electronics, Inc.

**********************************************************************

Matter of:Marquette Electronics, Inc.

File:     B-262016.2; B-262016.3

Date:     February 15, 1996

Jonathan O. Levine, Esq., and Mitchell W. Quick, Esq., Michael, Best & 
Friedrich, for the protester.
William Weisberg, Esq., and William T. Welch, Esq., Barton, Mountain & 
Tolle, for Hewlett-Packard Company, an intervenor.
Nicholas P. Retson, Esq., and Michael J. O'Farrell, Jr., Esq., 
Department of the Army, for the agency. 
Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest alleging that the awardee's proposal does not meet the 
solicitation's technical requirements is denied where agency found 
that awardee's proposal evidenced compliance with the specifications 
and the protester has not shown that agency's conclusion was 
unreasonable.

DECISION

Marquette Electronics, Inc. protests the Department of the Army's 
award of a contract to Hewlett-Packard Company (HP) under request for 
proposals (RFP)    No. DADA15-94-R-0068, which was issued by the 
Walter Reed Army Medical Center for a patient monitoring and clinical 
information system with turnkey installation.  Marquette alleges that 
the source selection was flawed by various improprieties and argues 
that these improprieties, taken together, demonstrate bad faith on the 
agency's part.  

We deny the protest.

The RFP, issued in December 1994, contemplated the award of a firm, 
fixed-price contract for delivery and installation of equipment, with 
six 1-year options for systems maintenance.  The equipment included a 
patient monitoring system, which consists basically of monitors that 
obtain physiological data such as heart rate, blood pressure, etc. 
from the patient, and a clinical information system (CIS), which is a 
computer-based system for the storage, retrieval, display, and 
archiving of patient data.  The CIS would include more than 500 user 
display terminals and data acquisition from more than 249 patient 
monitoring devices, covering every significant clinical unit in the 
medical center.  The RFP specified that all requirements must be met 
with off-the-shelf, commercially available equipment that was in 
current production at the time proposals were submitted.  The RFP 
cautioned that any equipment that had to be developed to meet the 
requirements of the specification would be considered unacceptable.

The RFP contained more than 100 pages of detailed specifications and 
required offerors to respond to each one.  Offerors were advised to 
follow the proposal format provided in the RFP and to show how they 
intended to comply with the technical specifications.  As initially 
issued, the RFP listed the following evaluation factors, in descending 
order of importance:  technical, price, management, and support, and 
stated that award would be made to the acceptable offeror whose 
evaluated price might not be the lowest, but whose offer was 
determined sufficiently more advantageous than the lowest priced 
offeror so as to justify payment of an additional amount.  In 
addition, the RFP stated that a successful pre-award demonstration 
must be accomplished before an offeror could be considered technically 
acceptable.   

The agency received four initial proposals, including two separate 
proposals from Marquette.  After evaluating the proposals, the agency 
conducted written discussions with the three firms, and instructed 
offerors to submit revised proposals.  When the technical evaluation 
panel (TEP) evaluated the revised proposals, it determined that 
neither of Marquette's proposals was technically acceptable, and the 
contracting officer excluded them from the competitive range.  
Marquette protested the rejection of its proposals, and the 
contracting officer agreed to settle the protest by admitting the 
protester to the competition.

The agency amended the RFP to change the basis of award to 
"low-priced, technically acceptable offeror" and deleted a number of 
technical specifications as well as the requirement for a pre-award 
operational capability demonstration. 
Offerors were instructed to submit best and final offers (BAFO) based 
on the amended RFP.  BAFOs were evaluated, and HP's offer was 
determined to be the only proposal that met all of the government's 
specifications.  In addition, HP offered the lowest price.  
Accordingly, HP was selected for award.  This protest followed.

Marquette first protests the amendments changing the basis of award, 
deleting certain specifications, and deleting the requirement for an 
operational demonstration, arguing essentially that the timing of 
these changes--and the fact that the deleted specifications were ones 
that HP apparently could not meet--demonstrate bad faith on the 
agency's part.  We dismiss these portions of the protest as untimely 
filed, since they are based on alleged improprieties in the 
solicitation, as amended, but were not filed before the due date for 
submission of BAFOs.  Alleged improprieties that do not exist in the 
initial solicitation but that are subsequently incorporated into the 
solicitation must be protested not later than the next closing date 
for receipt of proposals following the incorporation.  4 C.F.R.  sec.  
21.2(a)(1) (1995).  See Perkin-Elmer Corp., B-250869, Dec. 10, 1992, 
92-2 CPD  para.  404.  Marquette's post-award protest of these matters is 
therefore untimely and will not be considered.

Marquette protests that the Army's determination that HP's proposal 
complied with all minimum technical requirements, including the 
requirement that only commercially available products be offered, was 
unreasonable and arbitrary.  The protester lists 19 examples of CIS 
specifications that it alleges HP cannot meet.  

As one example, Marquette cites a particular specification labeled 
"Terminal emulation/CHCS interface," and alleges that HP's offer is 
noncompliant because "HP has no CHCS interface at any [Department of 
Defense] site.  Additionally, they have no CHCS terminal emulation."  
However, Marquette's suggestion that the specification requires a 
current interface is a mischaracterization.  The specification at 
issue states in pertinent part that 

     "Each workstation on the network shall be capable of serving as a 
     common terminal to the Composite HealthCare System (CHCS) . . . .   
     The contractor will negotiate with the CHCS vendor to acquire the 
     CHCS to CIS interface." (Emphasis supplied.)

Since the specification only requires that the workstations be capable 
of performing in a particular capacity and that the contractor 
negotiate with the CHCS vendor to acquire the interface between the 
systems, there was no requirement to have the interface either at the 
time of opening or at time of award; the wording of the specification 
makes it clear that the interface can be arranged later.  For the 
specification at issue here, HP stated unequivocally that its approach 
met the requirement, and identified the equipment being offered and 
described the type of emulation that equipment would support.  

Marquette's only response to the discussion of this issue in the 
agency report is to argue that "[t]his is a major requirement of the 
contract which HP cannot and will not be able to comply with."  
Marquette characterizes the contracting officer's acceptance of HP's 
commitment to comply after award as an attempt "to rationalize this 
problem away," and protests that this demonstrates the agency's 
failure to apply evaluation criteria equally to competing proposals.  
Marquette notes that in contrast to its acceptance of HP's promise to 
negotiate the required interface, the agency found Marquette's 
proposal noncompliant when it stated that it would comply with certain 
specifications by the development of a particular piece of software or 
equipment after award.

We find no evidence of unequal treatment in the record.  First, 
Marquette's response to the particular specification at issue here was 
that its subcontractor "will work with the CHCS vendor to establish 
the appropriate interfaces"--in other words, giving the same type of 
assurance of future compliance as HP's proposal.  The record shows 
that both firms' proposals were considered compliant for this 
specification, since the specification required no more than a 
commitment to establish the interface at a later time. 

Marquette's proposal was considered noncompliant in areas where 
current compliance was required.  For each of the examples Marquette 
cites, Marquette conceded the noncompliance during discussions, but 
asserted that the noncompliance would be corrected by software that 
was scheduled for release at a later time.  For example, the agency 
was concerned with the apparent inability of the protester's neonatal 
monitoring systems to recognize and score apneas  (i.e., temporary 
instances of  suspension of breathing) in neonates.  Marquette listed 
equipment in its proposal that could "detect, alarm, and store 
information in memory for apnea events," with no mention of the 
equipment's ability to meet the requirement for scoring these events.  
When this was cited as a technical concern during discussions, 
Marquette's written response identified a software release that would 
include apnea "trending (scoring)", and stated that it would be 
available in the first quarter of 1996.  In light of the RFP's express 
requirement that no developmental items be offered, we think the 
agency's refusal to accept this offer of future compliance (promising 
software that was not currently in production) is consistent with the 
terms of the RFP and does not demonstrate unequal treatment in the 
evaluation.                                  

None of Marquette's other allegations concerning HP's technical 
proposal provide any basis for concluding that  the agency improperly 
found the awardee's product acceptable.  For example, while Marquette 
alleges that HP's CIS does not meet a requirement for an overview 
screen to be configurable to allow multiple real-time waveforms via 
split screen, HP's proposal states that it meets this requirement and 
identifies the component that is being offered.  Another protested 
specification involves user system security levels; Marquette alleges 
that HP's CIS was not certified in a particular way; however, the 
record shows that the RFP did not require such certification, and that 
HP's equipment and approach satisfied the security requirements.  As 
another example, Marquette cites an interfacing requirement under 
which the CIS was to conform to industry standard protocols.  The 
record shows that one of the listed standards has not been fully 
defined; HP acknowledged this, noted that it would be impossible to 
assert full compliance with an undefined standard, and stated that it 
plans to comply when the standard has been defined.  

In a negotiated procurement, the procuring agency has primary 
responsibility for evaluating technical information supplied by an 
offeror and determining the acceptability of the offeror's proposal, 
and our Office will not disturb the agency's finding of technical 
acceptability unless it is shown to be unreasonable.  Alpha Technical 
Servs., Inc., B-250878; B-250878.2, Feb. 4, 1993, 93-1 CPD  para.  104.  In 
reviewing an agency's evaluation, we will not reevaluate proposals but 
instead will examine the agency's evaluation to ensure that it was 
reasonable and consistent with the stated evaluation criteria.  Simms 
Indus., Inc., B-252827.2, Oct. 4, 1993, 93-2 CPD  para.  206.  

We find nothing unreasonable here.  The contracting officer's 
statement, the TEP's pre-award Memorandum for Record and review of the 
technical comments in Marquette's protest, and HP's submissions as an 
interested party all support the technical acceptability of HP's 
proposal.  Although all of these documents--as well as HP's 
proposal--were provided to Marquette's counsel under a protective 
order, Marquette did not respond to this information in any specific 
way, other than to assert in a conclusory statement that it had 
"identified nineteen (19) different specifications which it continues 
to believe--based on the documents disclosed under protective order 
(Vol. II)--HP cannot comply with."  In short, Marquette has provided 
nothing to rebut the evaluation record or cause us to question the 
reasonableness of the evaluation and determination of technical 
acceptability.

There remain several allegations that Marquette raised in its protest, 
but did not address in its comments in any way:  that the contracting 
officer failed to make a determination that the awarded price 
satisfied the solicitation's requirement for balanced pricing; that 
the agency failed to enforce a requirement for promoting small 
business and small disadvantaged business subcontracting; and that HP 
could not execute one of the certifications required by the 
solicitation.  The agency responded to these issues in its agency 
report, but Marquette, in its comments filed on that report, did not 
rebut the agency's position on these matters.  Therefore, we view 
these issues as abandoned.  See Datum Timing, Div. of Datum Inc., 
B-254493, Dec. 17, 1993, 93-2 CPD  para.  328.

Finally, there remains the general allegation that the protest issues, 
taken together, evince a pattern of bad faith on the agency's part, 
culminating in the HP award.  However, a finding of bad faith requires 
evidence that contracting officials intended to injure the protester.  
See Oliver Prods. Co., B-245762.2, supra.  While the protester has 
speculated as to the contracting officer's motivation--for example, 
alleging that his determination of HP's responsibility was motivated 
by price alone--Marquette has not provided any evidence to support its 
allegation with specific evidence of wrongdoing.  In view of our 
finding that the agency reasonably determined HP's proposal to be 
technically acceptable, this allegation provides no basis for 
overturning the award to HP.

The protest is denied.

Comptroller General
of the United States