BNUMBER:  B-270701
DATE:  March 13, 1996
TITLE:  CardioMetrix

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

Matter of:CardioMetrix

File:     B-270701

Date:   March 13, 1996

Robert J. Loring for the protester.
Peter G. Giella, Esq., and Joseph DiGiacomo, Department of the Navy, 
Military Sealift Command, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Protester's argument that it is unreasonable for the agency to 
specify the number of patients that a contract physician must examine 
in a workday is denied where the examinations are for a limited 
purpose (i.e., to determine the fitness of civil service mariners for 
duty at sea), and the record contains no evidence that the physician 
will be unable to perform the specified number of examinations in the 
allotted time.

2.  Prospective offeror bears the risk of not receiving a solicitation 
amendment where there is no evidence that the agency deliberately 
failed to send it a copy, and where the protester rebuffed repeated 
attempts by the agency to contact it to discuss the amendment.

DECISION

CardioMetrix protests the specifications in request for proposals 
(RFP) No. N62381-96-R-0001, issued by the Department of the Navy, 
Military Sealift Command (MSC) for physician services.  In particular, 
CardioMetrix objects to a solicitation provision requiring the 
contract physician to see up to 20 patients per day.  The protester 
also complains that it failed to receive a copy of amendment No. 0002 
to the RFP until immediately prior to closing, and thus effectively 
was precluded from reviewing its contents and submitting a timely 
offer.

We deny the protest.

The RFP, which was issued on November 9, 1995, sought the services of 
a licensed physician(s) to perform physical examinations of civil 
service mariners to ensure their fitness for duty at sea.  As 
originally issued, the RFP provided that the physician would be 
expected to see up to 30 patients per day, with complete physical 
examinations accounting for up to 25 patients per day and the 
remainder being evaluations or "sickcall" visits.  The RFP also 
required that the physicians be trained in the standards and 
procedures set forth in MSC Instruction 6000.1C.  Offers were due by 
December 11.

On December 7, CardioMetrix filed a protest with our Office, 
complaining that  although the solicitation required the contractor to 
provide physicians trained in the standards and procedures set forth 
in MSC Instruction 6000.1C, offerors had not been furnished with 
copies of the instruction.  The protester also objected to the 
requirement that the physician see up to 30 patients per day, arguing 
that this translated to an average of one patient every 12 minutes, 
which was an "unethically" short period of time for examination and/or 
treatment.[1]

On December 8, the agency issued amendment No. 0001 to the RFP, which 
clarified certain aspects of the solicitation not relevant to this 
protest and extended the closing date to December 19.  On December 14, 
the agency issued amendment No. 0002, which responded to 
CardioMetrix's protest by furnishing to all of the sources on its 
mailing list a copy of MSC Instruction 6000.1C and by revising the 
provision requiring the physician to see up to 30 patients per day as 
follows:

     "The licensed Physician will be expected to see up to 20 patients 
     per day.  Complete physical examinations account for up to 12 
     patients per day, the remainder being evaluations or sickcall 
     visits.  Overtime will not be paid."

Elsewhere in the amendment, the agency elaborated on the above 
language, noting that although the solicitation had been revised to 
require the physician to see up to 20 patients per day "on an 
average," "the number [might] increase to a maximum of 30."  The 
agency explained that during the years 1987-1993, it had processed up 
to 30 patients per day, but that due to current restrictions on 
hiring, it was now processing only up to 20 patients per day.  The 
amendment again extended the closing date for receipt of offers, this 
time to January 4, 1996.

On January 4, after attempting unsuccessfully on a dozen separate 
occasions to contact CardioMetrix's chief operating officer to discuss 
the possibility of protest withdrawal,[2] the agency requested that 
our Office dismiss the protest as academic on the ground that 
amendment No. 0002 completely answered the protester's objections to 
the solicitation.

CardioMetrix responded to the request for dismissal on January 5, 
contending that it had first become aware of the existence and content 
of amendment No. 0002 when it received the agency's request for 
dismissal of its protest at 1:57 p.m. on January 4, and therefore had 
not had an opportunity to review its contents and prepare an offer 
prior to the 2:00 p.m. closing time.  With regard to the amendment's 
contents, CardioMetrix objected to the revised requirement regarding 
patient load, complaining that the new requirement was "no less 
unethical" than the original requirement.  The protester argued that 
"no contractor physician should be required to medically diagnose, 
treat, and manage any minimum number of patients per day," since 
"every patient/physician encounter is a unique experience whose time 
frame cannot be mandated or regulated by a third party."  Since the 
protester did not agree that amendment No. 0002 addressed its 
objections, we declined to dismiss the protest as academic.

The agency responds to the protester's complaint regarding patient 
load by pointing out that the protester appears to have misunderstood 
the nature of the physician services sought here.  The solicitation 
does not require the physician to diagnose and treat medical problems 
(except on a sickcall basis); it requires him (or her) to administer 
physical examinations to determine the fitness of mariners for duty at 
sea.  To this end, the physician performs a routine physical 
examination and reviews the results of a battery of laboratory tests 
(e.g., electrocardiogram, pulmonary function test, urinalysis) that 
generally are conducted by health care professionals other than the 
physician.  In other words, each physician-patient encounter is not 
for a unique purpose (i.e., the diagnosis and treatment of a unique 
medical problem); the encounters are for a routine purpose, which can 
be accomplished within a predictable time frame.

The determination of an agency's minimum needs and the best method of 
accommodating them are primarily within the agency's discretion, and 
we will not question such a determination unless the record shows that 
it lacked a reasonable basis.  CardioMetrix, B-257408, Aug. 3, 1994, 
94-2 CPD  para.  57.  Here, the agency has determined, based on its 
experience contracting for such services, that the physician will be 
able to perform the sort of examinations required on as many as 30 
patients per day.  The protester has offered no evidence to the 
contrary, other than its assertion that no time limits should be 
imposed on any medical examination due to the nature of the 
physician/patient relationship.  The protester's general objection 
does not demonstrate that the requirement is unreasonable, 
particularly given the routine--and thus relatively 
predictable--nature of the examinations to be performed here.  The 
record thus does not support the protester's argument that the 
requirement for performance of up to 20--or even 30--physicals per day 
is unreasonable.

The protester also complains that it failed to receive a copy of 
amendment No. 0002 until 3 minutes prior to the revised closing time 
and thus did not have time to review the contents of the amendment and 
submit an offer prior to closing.  A  prospective offeror, however, 
bears the risk of not receiving a solicitation amendment unless it is 
shown that the contracting agency made a deliberate effort to exclude 
the firm from competing, or that the agency failed to furnish the 
amendment inadvertently after the firm availed itself of every 
reasonable opportunity to obtain the amendment.  Sentinel Security & 
Patrol Servs., B-261018, Aug. 9, 1995, 95-2 CPD  para.  67.  Here, the 
agency's records show that a copy of amendment No. 0002 was furnished 
to each of the potential offerors on its mailing list, which included 
CardioMetrix.  Indeed, it is difficult to believe that the agency, 
after issuing amendment No. 0002 in response to CardioMetrix's 
protest, would deliberately fail to send that firm a copy of the 
amendment.  It also seems highly unlikely that the agency, if its 
intent were to exclude the protester from the competition, would have 
telephoned CardioMetrix on a dozen separate occasions between the date 
the amendment was issued and the new closing date; as noted above, 
none of the calls were returned.  In sum, the record does not 
establish that the agency was responsible for the protester's 
difficulty. 

The protest is denied.

Comptroller General
of the United States

1. The protester raised three additional grounds of protest as well, 
but was satisfied by the agency's response to them in amendment No. 
0002; thus, we will not discuss them.

2. The agency's records show that the contracting specialist 
telephoned CardioMetrix four times on December 28, and that each time 
she left a message with the protester's receptionist for its chief 
operating officer to call her back.  The records further show that the 
contracting specialist called another four times on January 2;  three 
times on January 3; and one last time early on the morning of January 
4.  None of the calls were returned.