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.