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