BNUMBER: B-271248
DATE: June 28, 1996
TITLE: Dr. Carole J. Barry
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Matter of:Dr. Carole J. Barry
File: B-271248
Date:June 28, 1996
Marvin F. Atlas, Esq., for the protester.
Richard Brown, Esq., and Michael Colvin, Department of Health and
Human Services, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
In a best value procurement, where the solicitation stated that
technical considerations were more important than cost and the agency
rationally evaluated protester's technical proposal as containing
numerous weaknesses and deficiencies, agency reasonably determined to
make award to a technically superior, slightly higher-priced offeror.
DECISION
Dr. Carole J. Barry protests the evaluation of proposals and the
resulting award of a contract to Psychiatric Associates of New Mexico,
Inc. under request for proposals (RFP) No. 96-01/LBB, issued by the
Department of Health and Human Services, Albuquerque Area Indian
Health Service (IHS).
We deny the protest.
The RFP, issued on September 14, 1995, sought proposals for a
fixed-price, indefinite quantity contract, to provide psychiatric
services to IHS patients for a base year, with three 1-year options.
Technical factors were stated to be more important than cost. The RFP
contained the following technical evaluation factors and associated
points: (1) experience (50 points); (2) professional requirements (30
points); (3) availability (10 points); and (4) health requirements (10
points), for a maximum possible total of 100 points.
The agency received four proposals, and after evaluation of initial
proposals, established a competitive range of three proposals,
including those of Dr. Barry and of Psychiatric Associates (which
offered the services of Dr. Olson). The agency received two best and
final offers (BAFO), with Dr. Barry's receiving a technical score of
83.5 points (considered "moderately acceptable") at an evaluated total
price of $228,800, and Psychiatric Associates receiving a technical
score of 90 points (considered "highly acceptable") at an evaluated
price of $264,000. The agency concluded that Psychiatric Associates's
proposal represented the best overall value to the government and made
award to Psychiatric Associates on February 1, 1996. This protest
followed.
TECHNICAL EVALUATION OF PROPOSALS
The evaluation of technical proposals is primarily the responsibility
of the contracting agency. Our Office will not make an independent
determination of the merits of technical proposals; rather, we will
examine the record to ensure that the agency's evaluation was
reasonable and consistent with the stated evaluation criteria. Litton
Sys., Inc., B-237596.3, Aug. 8, 1990, 90-2 CPD para. 115. Here, as set
forth below, we find the agency's evaluation unobjectionable.
Experience
Under this evaluation criterion, the RFP called for the evaluators to
assess whether, within the past year, the offerors provided certain
psychiatric services, such as management of psychotropic medications,
and treated significant numbers of adolescents and adults (including
the elderly). Dr. Barry's proposal received 42.5 out of a possible 50
points under this factor. The evaluators concluded that Dr. Barry's
experience was not described in sufficient detail to warrant a higher
score. For example, one evaluator noted that Dr. Barry failed to
adequately describe her part-time private practice and her position as
a part-time consultant to the New Mexico State Hospital in Las Vegas,
New Mexico. Transcript (Tr.) at 19.[1] In addition, the agency found
that Dr. Barry's proposal was ambiguous regarding whether she had
treated significant numbers of adolescents within the last year. In
this regard, the agency points to the following language from Dr.
Barry's proposal:
"As stated elsewhere in my proposal, at the risk of violating
patient confidentiality, I do not know how to document the fact
that I have treated a significant number of adolescents and
adults (including elderly) during the last year."
The agency was unable to determine from Dr. Barry's proposal whether
she had treated a significant number of adolescents as part of her
patient population.
In our view, the imprecise language in Dr. Barry's proposal, in
conjunction with the lack of detail provided by Dr. Barry concerning
her private practice and her part-time consultation position, made it
difficult for the agency to conclude that Dr. Barry had treated a
significant number of adolescents during the last year. Accordingly,
we see no basis to object to the agency's downgrading of her proposal
slightly under this factor.
Psychiatric Associates's proposal of Dr. Olson received the maximum
score of 50 points under this evaluation factor. The technical
evaluation panel (TEP) noted the extensive psychiatric services that
Dr. Olson had provided for the past 3 years under the predecessor
contract. In addition, the TEP noted that Dr. Olson has been well
received by patients and primary care physicians, and that he had been
awarded a certificate of appreciation from an IHS site for his
outstanding and dedicated service to patients. We see no basis to
object to the agency's awarding Psychiatric Associates's proposal the
maximum score under this evaluation factor. Incumbent contractors
with good performance records can offer real advantages to the
government, and proposal strengths flowing from a firm's prior
experience properly may be considered by an agency in proposal
evaluation. See Aumann, Inc., B-251585.2; B-251585.3, May 28, 1993,
93-1 CPD para. 423.
Professional Requirements
With respect to this evaluation criterion, offerors were asked to
provide: (1) documentation of their knowledge of local Indian cultures
and customs, and their ability to work within those parameters (10
points), (2) documentation of board certification in psychiatry (10
points), and (3) documentation of insurance (10 points).[2]
Because Dr. Barry submitted documentation showing that she was board
certified, her proposal received the maximum score (10 points) for the
board certification subfactor. The TEP awarded Dr. Barry's proposal
2.5 out of 10 points under the knowledge of local Indian culture
subfactor. While the TEP acknowledged that
Dr. Barry's proposal indicated that she possessed some knowledge of
Indian culture and customs, it noted that Dr. Barry's proposal
referred to her experience with Indian tribes from the eastern part of
the country, such as the Mohawk and Iroquois tribes. Tr. at 11. The
evaluation criterion called for knowledge of local Indian culture and
stated that the primary Indian population of the IHS Albuquerque
Service Unit consists of Navajo and Pueblo Indians. The TEP noted
that there was no mention in Dr. Barry's proposal of having served the
Pueblo people. While the proposal stated that Dr. Barry had treated
some Navajo Indians at the state hospital, the TEP was aware that the
state hospital receives a small number of Indian patients. In our
view, since Dr. Barry's proposal failed to describe work with the
local Navaho population, or to provide any mention of Dr. Barry's
knowledge of the Pueblo population, the agency's significant
downgrading of the protester's proposal in this area is
unobjectionable.
In contrast, Psychiatric Associates's proposal received the maximum 10
points under the knowledge of local Indian culture subfactor. The TEP
noted that the proposal stated that Dr. Olson has been serving the
Indian population of not only the IHS Albuquerque Service Unit, but
also of another IHS unit that is located outside of Albuquerque, and
that both of these service units predominantly provide care for Pueblo
and Navaho Indians.
Because Dr. Olson was not board certified, however, Psychiatric
Associates's proposal received only 2.5 out of 10 points under the
board certification subfactor. Dr. Barry asserts that Psychiatric
Associates's proposal should have been rejected rather than given a
reduced score for this factor because board certification was a
mandatory requirement of the solicitation. The agency states that
board certification was desirable but was not intended to be a
mandatory requirement, and was not to be evaluated on a pass/fail
basis. At the hearing, the contracting officer explained that the RFP
was not intended to make board certification a mandatory requirement.
Tr. at 30.
Where, as here, a dispute exists as to the actual meaning of an RFP
provision, we will read the RFP as a whole and in a manner giving
effect to all of its provisions in determining which interpretation is
reasonable. National Projects, Inc., 69 Comp. Gen. 229 (1990), 90-1
CPD para. 150. Applying this standard here, we find the agency's position
regarding board certification to be reasonable. The RFP did not
require that the proposed physician be board certified; rather, it
called for documentation of board certification in the context of an
evaluation criterion under which an offeror could receive a maximum of
10 points as a result of having produced such documentation. Nothing
in the RFP otherwise requires board certification or calls for the
elimination from consideration of a proposal which did not include
such documentation. Accordingly, the record provides no basis to
conclude that Dr. Olson's lack of board certification required the
elimination of Psychiatric Associates's proposal.
The TEP awarded Psychiatric Associates a minimal score under this
subfactor because one evaluator was aware that Dr. Olson was in the
process of preparing for the board certification examination. While
the protester asserts that a score of zero should be the only
appropriate score for someone not board certified, we note that even
if the 2.5 points were deducted from Psychiatric Associates's score,
its score remains substantially higher than Dr. Barry's, and the
reduction would not affect the stated narrative explanation for the
perceived superiority of Psychiatric Associates's proposal.
Accordingly, Dr. Barry was not prejudiced by this scoring.
Health Requirements
With respect to this evaluation criterion, offerors were asked to
provide written evidence of a recent medical examination and current
immunization records to establish their fitness to perform this
contract. The parties disagree about whether Dr. Barry submitted a
health statement with her proposal. The agency contends that neither
Dr. Barry nor Dr. Olson submitted an appropriate health statement.
Dr. Barry insists that she did submit a health statement with her
proposal. Both offerors noted their general good health in their
proposals and, apparently on this basis, Psychiatric Associates's
proposal received 7.5 points out of 10 points under this subfactor,
while Dr. Barry's proposal received 8.5 points.
Dr. Barry has submitted to our Office, in conjunction with her hearing
comments, what she states is a copy of the health statement that she
included with her proposal. The submitted statement, in the form of a
letter, from Dr. Barry's physician declares that Dr. Barry's health is
excellent. This letter also contains a postscript which states as
follows:
"P.S. My records indicate that Dr. Barry has had, within the
past six months, inoculations for both rubella and dpt, which may
have been necessary for her travel to Europe."
We note that this postscript is not in the same type face as the main
text of the letters. On this record, it is not clear that the
postscript was actually entered by Dr. Barry's physician.
Accordingly, based on the record, we cannot say that the protester was
entitled to a higher score.
COST/TECHNICAL TRADEOFF
While the protester argues that as the lowest priced offeror, it was
entitled to the award, the RFP did not call for award to be made to
the offeror with the lowest- priced, technically acceptable proposal.
Rather, the RFP stated that the award would be made to the offeror
whose proposal, conforming to the RFP, was deemed most advantageous,
i.e., the best value to the government, with technical evaluation
factors being considered more significant than price.
Where the RFP does not provide for award to the lowest-priced,
technically acceptable offeror, an agency has the discretion to make
the award to an offeror with a higher technical score and a higher
price where it reasonably determines that the price premium is
justified considering the technical superiority of the awardee's
proposal and the result is consistent with the evaluation criteria.
General Servs. Eng'g, Inc., B-245458, Jan. 9, 1992, 92-1 CPD para. 44.
Here, while Dr. Olson's price was higher than the protester's, the
solicitation provided that technical factors were more important than
price, and the agency concluded that Dr. Olson's better technical
proposal demonstrated a substantially greater ability to meet the IHS'
needs which warranted payment of the associated price premium.[3] The
record affords us no basis to question the reasonableness of this
determination.
The protest is denied.
Comptroller General
of the United States
1. Transcript citations refer to the transcript of a hearing conducted
by our Office in connection with this protest.
2. Both offerors received the maximum score (10 points) for the
insurance subfactor.
3. Dr. Barry also contends that the agency's selection of Dr. Olson
was the result of bias. In support of this allegation, the protester
reiterates her complaints concerning the proposal evaluations, and
asserts that the agency intentionally lost or misplaced her health
statement. Government officials are presumed to act in good faith; we
will not attribute unfair or prejudicial motives to procurement
officials on the basis of inference or supposition. Northwestern
Travel Agency, Inc., B-244592, Oct. 23, 1991, 91-2 CPD para. 363. As
explained above, the evaluation was reasonable and consistent with the
solicitation criteria, and therefore provides no evidence of bias.
The record simply does not support Dr. Barry's contention that the
agency deliberately lost her health statement. In this regard, we
also note that, in view of the dubious nature of the health statement
submitted to our Office by Dr. Barry, it is highly questionable
whether her already high score under this factor would have improved
had this statement been evaluated as part of her proposal.