BNUMBER:  B-272012
DATE:  August 8, 1996
TITLE:  Intra-Med Services, Inc.

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

Matter of:Intra-Med Services, Inc.

File:     B-272012

Date:August 8, 1996 

Daniel R. Weckstein, Esq., and Howard W. Roth III, Esq., Vandeventer, 
Black, Meredith & Martin, for the protester.
Terence Murphy, Esq., and L. Allan Parrott, Jr., Esq., Kaufman & 
Canoles, for Medical Technologies of Hampton Roads, an intervenor.
Diane-Marie Carrero, Esq., Department of the Navy, for the agency.
Peter A. Iannicelli, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that the awardee's proposal contained a material 
misrepresentation (concerning the equipment/facilities the awardee 
would use in performing the contract) that may have influenced the 
agency to find the awardee's proposal technically acceptable is denied 
where review of the entire record, including the awardee's initial and 
best and final offers, reveals no misrepresentation.

2.  Protest alleging that the agency incorrectly rated the awardee's 
management approach as substantially equal to the protester's 
management approach (i.e., both were rated as acceptable) since the 
protester is the incumbent contractor and will incur no downtime while 
the awardee will incur downtime is denied where:  (1) the request for 
proposals clearly stated that proposals would be rated as acceptable 
or not on this evaluation factor, not on the basis of comparing one 
proposal to another; (2) the awardee's proposal contained a milestone 
chart showing the start and completion dates of all critical 
activities that the protester would undertake in order to meet the 
performance start date; and (3) the agency reasonably found the 
awardee's proposal acceptable on this factor.

DECISION

Intra-Med Services, Inc., the incumbent contractor, protests the 
Navy's award of a contract for magnetic resonance imaging (MRI) 
services to Medical Technologies of Hampton Roads pursuant to request 
for proposals (RFP) No. N00140-96-R-N140.  The protester contends that 
the contract was improperly awarded to Medical Technologies because:  
(1) the agency's evaluation relied upon Medical Technologies's 
misrepresentation that it would use the MRI facility used by Intra-Med 
in performing the present contract; (2) the Navy incorrectly evaluated 
proposals under the management approach evaluation factor; and (3) the 
agency relaxed a material requirement of the RFP--i.e., the start-up 
date--in favor of Medical Technologies.[1]  We deny the protest.

Issued on December 6, 1995, the RFP solicited offers for providing MRI 
services for the radiology department at the Naval Medical Center, 
Portsmouth, Virginia, for a base period of 5 months or less, depending 
upon the actual award date, with options for 20 additional months.  
The RFP contemplated a firm, fixed-price contract with the contractor 
installing, maintaining, and operating an MRI unit and supporting 
equipment as well as modular buildings to house the MRI unit and for 
patient/radiologist use.  The RFP required the contractor to install 
the facilities and equipment in a walled courtyard in the middle of 
the Medical Center and to begin performing MRI services within 60 days 
after contract award.  The RFP stated:  "The Government intends to 
make a single award to the eligible, technically acceptable, 
responsible offeror whose total offer on all items is the lowest 
priced."  The RFP further stated:  "Award will be made to the 
eligible, responsible, technically acceptable offeror whose offer, 
conforming to the solicitation, is determined most advantageous to the 
Government price and past performance considered."

The RFP explained that proposals would first be evaluated to determine 
whether they were technically acceptable on equipment/building 
specifications and management approach evaluation factors.  
Technically acceptable proposals would then be evaluated on past 
performance and price to determine which was the most advantageous to 
the government.  The RFP stated that price was considered more 
important than past performance.

Three offers were received by the January 16, 1996, closing date.[2]  
The Navy determined that Intra-Med's proposal contained no 
deficiencies in the equipment/ building specifications and management 
approach factors and was exceptional in past performance.  The Navy 
also determined that there were no deficiencies in Medical 
Technologies's proposal in the management approach factor and rated 
Medical Technologies's past performance as exceptional.  However, the 
Navy noted deficiencies in Medical Technologies's proposal under the 
equipment/building specifications factor.  The proposed prices of the 
three offers were within 10 percent of each other and, after 
considering the technical evaluation team's recommendations, the 
contracting officer kept all three offers in the competitive range.  

Discussions were held and best and final offers (BAFO) were received 
and evaluated.  The agency found that Medical Technologies had 
corrected the deficiencies in its proposal and determined both 
Intra-Med's and Medical Technologies's BAFOs to be technically 
acceptable on the equipment/building specifications and management 
approach evaluation factors, and exceptional on past performance.  
Intra-Med's total proposed BAFO price was $1,855,000 and Medical 
Technologies's was $1,714,725.  After performing a price analysis, the 
contracting officer determined that Medical Technologies's 
lowest-priced offer was most advantageous and awarded Medical 
Technologies the contract on April 30.   After being debriefed, 
Intra-Med filed this protest in our Office.

The protester alleges that Medical Technologies engaged in an improper 
"bait and switch" because Medical Technologies proposed on the basis 
of using Intra-Med's MRI facility, which Intra-Med has not and will 
not agree to lease to Medical Technologies.  Therefore, Intra-Med 
argues that Medical Technologies's proposal contained a material 
misrepresentation which may have influenced the Navy to find that 
Medical Technologies's proposal was technically acceptable on the 
equipment/building specifications factor.

Under the terms of the RFP, an offeror other than Intra-Med could 
propose using Intra-Med's MRI facility, contingent upon securing an 
agreement from Intra-Med that would allow its use.  In fact, the RFP 
specifically contemplated that offers could properly be based upon 
using the MRI facility that was used by Intra-Med in performing the 
predecessor contract, stating:  "Services to be furnished hereunder 
shall be performed from 01 May 1996 or 60 days after date of contract, 
whichever is later, except if current in-place buildings and equipment 
is used then start date is 01 May 1996 . . . ."  [Emphasis added.][3]

However, our examination of the record, including Medical 
Technologies's proposals, reveals no misrepresentation by Medical 
Technologies.  Medical Technologies's initial proposal clearly 
indicated that Medical Technologies had a specific MRI unit and 
modular building that Medical Technologies would use if awarded the 
contract.  The proposal stated that, as an alternate to the specific 
MRI unit described in its proposal, Medical Technologies would use 
Intra-Med's MRI unit "if available" and noted that if Medical 
Technologies was awarded the contract "it is highly likely that 
[Intra-Med's] alternate equipment will be available as an option."  
During discussions, the Navy asked Medical Technologies to provide 
only one proposal--either a new MRI facility or the existing Intra-Med 
facility--and, if the offer was to be based upon using Intra-Med's MRI 
facility, to provide documentary evidence of its availability.  In its 
BAFO, Medical Technologies offered its own modular building and MRI 
unit; the alternate proposing Medical Technologies's MRI facility was 
deleted.  Thus, Medical Technologies did not misrepresent what MRI 
facility/equipment it was proposing, and we find no merit to the 
protester's allegation.

The protester also contends that the Navy incorrectly rated Medical 
Technologies's proposal as substantially equal to Intra-Med's proposal 
(i.e., both were rated acceptable) under the management approach 
evaluation factor.  The protester points out that the RFP stated that 
the Navy's "overwhelming concern" was to minimize downtime during the 
transition period.  Intra-Med alleges that the Navy's changing 
contractors will entail at least 2 months of downtime in which the 
Navy will be without MRI services or will be required to have the 
services performed at local hospitals or other MRI facilities.  
Intra-Med also alleges that the transition costs to the Navy, 
including the cost of having hundreds of MRI exams performed at 
private facilities outside of Intra-Med's current contract or Medical 
Technologies's new contract and the actual costs of removing 
Intra-Med's MRI facility from the courtyard, will amount to more than 
$2 million.[4]  Intra-Med asserts that, since Intra-Med would incur no 
downtime delay, the Navy should have rated Medical Technologies's 
proposal lower than Intra-Med's proposal on the management approach 
evaluation factor.   

In reviewing an agency's evaluation of proposals, 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.  See Simms Indus., Inc., B-252827.2, Oct. 4, 
1993, 93-2 CPD  para.  206.  In our opinion, the Navy's evaluation was both 
reasonable and consistent with the RFP's stated evaluation scheme.  

For management approach, the RFP basically required only that offers 
include a chart listing, in chronological order, the sequence of 
critical events from contract award to start of service.  In addition, 
the RFP required the contractor to begin performing MRI services 
within 60 days after contract award.  As noted above, the RFP stated 
that offers would be evaluated for technical acceptability--that is, 
on a go/no go basis--on two evaluation factors--equipment/building 
specifications and management approach.  

Our examination of Medical Technologies's proposal reveals that it 
contained a clear, concise progress chart showing the start and 
completion dates for all critical events from the date of contract 
award to commencement of MRI services under the contract.  The 
milestone chart also showed the various activities that Medical 
Technologies would be conducting in order to begin doing the MRI work 
on time.   Contrary to the protester's assertion that Medical 
Technologies would take about 
99 days to begin services, Medical Technologies's milestone chart 
showed that Medical Technologies would be prepared to begin performing 
approximately 35 days after it was awarded the contract.[5]  The fact 
that awarding the contract to Intra-Med rather than Medical 
Technologies would be less disruptive and would result in no downtime 
at all is not relevant here since it was clear from the RFP that 
offers were not to be evaluated on a comparative basis, but only for 
acceptability.  As Medical Technologies's proposal showed a schedule 
that would easily meet the RFP's commencement date, we have no basis 
to find unreasonable the Navy's determination that Medical 
Technologies's proposal was acceptable under this evaluation factor.

The protester next contends that the Navy relaxed the start date of 
the contract for Medical Technologies.  The protester states that, 
since the contract was awarded to Medical Technologies on April 30 and 
the RFP required the contractor to begin performing MRI services 
within 60 days after award, Medical Technologies was required to 
commence performance no later than July 1.  The protester argues, 
however, that the agency will not require Medical Technologies to 
begin performing until August or even later.  We find no merit to 
Intra-Med's argument.  

The RFP did not contain a certain date upon which performance was to 
begin; instead, the RFP required performance to begin no later than 60 
days after award.  The RFP required each proposal to include a 
milestone chart showing how the 
60-day performance requirement would be met and, as discussed above, 
each proposal was rated as acceptable or not on this requirement.  It 
is clear from the evaluation record that all offers were evaluated on 
the same basis--i.e., whether they were prepared to begin performing 
MRI services within 60 days after being awarded the contract--and that 
Medical Technologies was ready and willing to do just that, that is, 
meet the contract start date for performance.  It is also clear from 
the record that the primary reason that Medical Technologies was not 
able to begin performing MRI services by July 1 was that Intra-Med was 
still performing the services under its contract with the Navy, and 
because Intra-Med apparently will take more than 2 months from the 
date its contract expired (June 30), rather than the 5 days allotted 
under its contract, to remove its MRI unit and modular buildings from 
the courtyard.  Medical Technologies cannot begin to install its own 
MRI unit and modular building into the courtyard until Intra-Med has 
completed removal of its MRI facility as the new facility is to occupy 
the same space.  In addition, by filing its protest, Intra-Med 
triggered the automatic stay of performance by Medical Technologies 
under the protested contract.  These delays, in our view, do not 
affect the propriety of the award and certainly do not prejudice the 
protester.

The protest is denied.

Comptroller General
of the United States

1. The protester raised a number of other issues in its protest, and 
the protester, agency, and intervenor submitted voluminous arguments 
on the protest issues.  In a June 5, 1996, telephone conference with 
all parties, we dismissed several of the issues as untimely or 
otherwise not appropriate for consideration on the merits.  We discuss 
here only the arguments that are both significant and relevant to 
resolving the remaining viable issues.

2. As the agency's actions regarding the third offeror are not germane 
to the protest issues, we will limit our discussion to the proposals 
of Intra-Med and Medical Technologies.

3. To the extent that Intra-Med is protesting that other offerors 
could not be considered acceptable if they proposed to use the MRI 
facility presently used by Intra-Med, the protest is untimely.  It 
should have been clear to Intra-Med from the RFP that offers proposing 
to use the incumbent's MRI facility would be considered, but Intra-Med 
waited until after the closing date had passed and the entire 
procurement was completed to protest on this basis.  4 C.F.R.  sec.  
21.2(a)(1) (1996);  see also Air Sal Leasing, Inc., B-265938, Jan. 16, 
1996, 96-1 CPD  para.  83.

4. To the extent that Intra-Med is protesting that the Navy should 
have considered transition costs, the protest is without merit.  We 
dismissed this protest ground after a telephone conference with the 
parties on June 5, 1996.  Nonetheless, Intra-Med continued to argue in 
subsequent submissions that these alleged transition costs would be 
substantial and should have been considered by the Navy in its 
evaluation of proposals.  While transition costs may be an evaluation 
factor in appropriate circumstances, an agency may only evaluate them 
if the RFP advised offerors that such costs were to be evaluated; 
here, the RFP did not list transition costs as an evaluation factor.  
Cherokee Elec. Corp., B-240659, Dec. 10, 1990, 90-2 CPD  para.  467.  

5. As Medical Technologies did not know exactly when the Navy would 
award the contract, Medical Technologies's milestone chart included an 
approximately 60-day period from January through March in which 
Medical Technologies expected the contract might be awarded.  It 
appears that Intra-Med erroneously included this 
60 days in estimating that Medical Technologies would take 99 days or 
more to begin the work.  It is clear, however, that Medical 
Technologies's chart showed its intent to start preparatory work on 
the contract award date and to begin performing MRI exams 
approximately 35 days later.