BNUMBER: B-276873
DATE: August 5, 1997
TITLE: American Native Medical Transport, L.L.C., B-276873, August
5, 1997
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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:American Native Medical Transport, L.L.C.
File: B-276873
Date:August 5, 1997
Cynthia Y. McCoy, Esq., Moore McCoy, P.C., for the protester.
Michael Colvin, Department of Health & Human Services, for the agency.
Charles Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Agency reasonably evaluated the protester's and awardee's
proposals as technically equivalent and properly made award under a
best value evaluation scheme based on the awardee's lower-priced
proposal.
2. Protester was not prejudiced by the agency's failure to conduct
discussions, as required by the solicitation and applicable
regulations, where the record demonstrates that the protester could
not significantly improve its highly rated technical proposal and
would not lower its price below that offered by the awardee.
DECISION
American Native Medical Transport, L.L.C. protests the award of a
contract to Native American Air Ambulance, Inc. (NAAA) under request
for proposals (RFP) No. 794, a total set-aside for Indian-owned firms,
issued by the Department of Health and Human Services, Phoenix Area
Indian Health Service (IHS), Phoenix, Arizona, for medically necessary
air transportation services.
We deny the protest.
The RFP, issued November 18, 1996, contemplated the award of a
fixed-price requirements contract for air transportation services for
eligible IHS beneficiaries in IHS' Whiteriver Service Unit and San
Carlos Service Unit in Arizona for a 1-year base period with four
1-year options. The contractor is required to provide fixed-wing and
rotor aircraft to meet the contract requirements. The RFP did not
specify a minimum number of aircraft necessary to perform the
services, but advised offerors that the contractor must have
sufficient personnel and equipment to perform the services, or arrange
to subcontract for the services.[1] The RFP established minimum
response times for the various aircraft; for example, the required
response time for fixed-wing aircraft was set at 45 minutes for both
the Whiteriver and San Carlos Units.
The RFP services include "Level I," "Level II", and "Level III" air
medical transport. The RFP defined Level I services to include
"Critical Care Life Support: Acute Conditions"; "Advanced Life
Support: Acute or Non-acute Conditions"; "Specialty Care Missions
(Neonatal, Obstetric)"; and "Scene Response Rotor Craft (Acute
Conditions/Situations)." Level II services were defined to include
"Basic Life Support (BLS) monitoring required (Non-acute Stable)" and
"Air Ambulance: Specialty care monitoring required (Non-acute
Stable)." Level III services were for "any person not requiring at
least BLS monitoring."
Under the RFP's pricing format, offerors were required to submit
prices for Level I and Level II air transport based upon the Medicare
reimbursement formula in effect at the time the services are
rendered--an offeror could price its proposal directly at the Medicare
reimbursement rate or offer a percentage discount off the rate.[2]
Level III services were required to be offered at a per unit price for
an estimated quantity of 350 Level III transports.
The proposal instructions advised that the technical proposal should
include a detailed work plan indicating how each aspect of the
statement of work was to be accomplished to include present or
proposed facilities and equipment which would be used in the
performance of the contract.
Award under the RFP was to be made under a best value evaluation
scheme, considering price and the following technical criteria:
Corporate Experience/Customer Support (35 points), Required Rotor
Craft Documents (20 points), and Required Fixed Wing Documents (45
points). Each technical criterion required the offeror to furnish
various licenses, certificates, corporate policies, and experience.
Under Corporate Experience/Customer Support, among other things, was
the requirement to furnish Department of the Interior Office of
Aircraft Services (OAS) certification. Under Required Rotor Craft
Documents, among other things, offerors were required to furnish a
copy of each pilot's commercial rotor craft airman's certificate; to
list each rotor craft by type, model, year, and time in use; and to
describe the medical configuration of the rotor craft. Under Required
Fixed Wing Documents, among other things, offerors were required to
furnish a copy of each pilot's commercial multi-engine certificate and
years of experience; to list each aircraft by type, model, year, and
time in use; and to describe the medical configuration of the
aircraft. Price was not to be separately evaluated or scored and was
said to be less important than the technical criteria.
The RFP also stated:
The Government intends to evaluate proposals and award a contract
after conducting written or oral discussions with all responsible
offerors whose proposals have been determined to be within the
competitive range. However, each initial offer should contain
the offeror's best terms from a cost or price and technical
standpoint.
American Native and NAAA submitted proposals by the December 18
closing date. American Native's proposal offered for Level I and
Level II transports a 5-percent discount off the Medicare
reimbursement rate, and a total price of $1,038,250 for Level III
transports. NAAA's proposal offered for Level I and II transports a
25-percent discount for the base year, a 20-percent discount for the
first option year, a 15-percent discount for the second and third
option years, and a 10-percent discount for the fourth option year,
and a total price for Level III transports of $752,500.
Technical proposals were evaluated by a four-member technical
evaluation panel. American Native's proposal received an overall
score of 90.17 of 100 points and NAAA's proposal received an overall
score of 90.25 points.[3] Based upon the technical scores, the
proposals were determined to be essentially equal. Because NAAA's
prices were lower and considered to be reasonable, the agency
determined that NAAA's proposal represented the best value and made
award to NAAA without conducting discussions on April 15, 1997. This
protest followed.
American Native protests the reasonableness of the technical
evaluation that its proposal was essentially equal to NAAA's proposal,
arguing that the evaluation of the proposals was unreasonable and that
its proposal should have been considered technically superior to
NAAA's.
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 solicitation's stated evaluation
criteria. Global Assocs., Ltd., B-275534, Mar. 3, 1997, 97-1 CPD para.
129 at 3. The determination of the merits of competing proposals is
within the discretion of the agency which is responsible for its needs
and the best method of accommodating them; a protester's mere
disagreement with the agency does not render the evaluation
unreasonable. Id.
The record indicates that IHS rated NAAA's proposal favorably because,
among other things, NAAA had successfully performed all requested
medical transport services for both the San Carlos and Whiteriver
Units since 1995--this included a high number of consistently trouble
free flights. The record also evidences that several evaluators
considered NAAA's British Aerospace J31 fixed-wing aircraft to be
superior to the Cessna 421 C fixed-wing aircraft offered by Indian
Native because the J31 is a larger aircraft and had the capability to
transport more than one patient. Both proposals omitted certain
requested documentation and were downgraded for this reason.
American Native makes a large variety of attacks on the evaluation,
all of which were considered. Based on our review of the record, we
find no basis to sustain the protest. We discuss those arguments that
form the focus of American Native's protest below.
American Native first argues that NAAA's proposal should have been
downgraded because NAAA proposed to provide three British Aerospace
J31 fixed-wing aircraft, but it had only two such aircraft available
at the time it submitted its proposal. American Native has presented
evidence allegedly showing that one of NAAA's three aircraft was
removed from service in 1996 and advises that NAAA's proposal included
insurance policies for only two planes. Further, American Native
asserts that NAAA proposed only one helicopter, which in any event was
not available at the time NAAA submitted its proposal. In contrast,
American Native states that it proposed to furnish four Cessna 421 C
fixed-wing aircraft and four helicopters to meet the requirements.
NAAA proposed to provide rotor craft services by subcontracting with
an identified approved source. Also, as indicated, NAAA proposed to
meet the requirements with its existing fleet of J31 fixed-wing
aircraft and to subcontract with an acceptable OAS-certified provider
to provide other necessary fixed-wing aircraft transports on a
short-term basis until NAAA purchased an additional aircraft. Thus,
notwithstanding American Native's assertion that NAAA misrepresented
that it had three fixed-wing aircraft when it owned only two, NAAA's
proposal states that it intended to subcontract and purchase other
needed aircraft, and there is no evidence that the agency relied upon
NAAA's assertion that it owned three fixed-wing aircraft in scoring
its proposal.
Although American Native asserts that NAAA's proposal should have been
rated less favorably than American Native's because only two
fixed-wing aircraft and no rotor craft were actually available to NAAA
at the time it submitted its proposal, the RFP did not specify a
minimum number of aircraft that would be needed to successfully
perform the contract work or state that the aircraft must be available
at the time proposals were submitted--offerors were only required to
commit to meet minimum response times and to discuss present or
proposed facilities and equipment. Our review confirms that NAAA's
proposal satisfied the RFP's requirements, and, on this record, we
believe that IHS could reasonably conclude that NAAA with its two
documented aircraft and plan to obtain additional aircraft, including
rotor craft, through subcontracts with approved sources, has committed
to provide sufficient aircraft to meet the agency's requirements and
was entitled to full credit in this regard under the evaluation
criteria.[4]
American Native argues that the chart NAAA included in its proposal of
dispatch times to San Carlos and Whiteriver from Prescott Airport
reflected a fixed-wing aircraft response time in excess of 45 minutes
and that NAAA's proposal therefore did not meet the fixed-wing
aircraft minimum response time requirement. However, NAAA's proposal
showed that NAAA (like American Native) intended to meet the
requirements through Williams Gateway Airport in Mesa, Arizona, where
its operations and its two J31 aircraft were based (although it also
stated that it could meet the response time from the Prescott
Airport). NAAA explained that it could meet the requirement because
of the J31 aircraft's cruising speeds, and that it had demonstrated
the ability to do so to both service units under the recent contracts
with IHS. We find that this commitment to meet the fixed-wing
aircraft response time requirement was reasonably accepted by IHS,
notwithstanding the discrepancies on NAAA's chart of dispatch times
regarding flights to the units from Prescott Airport.
American Native also argues that NAAA's proposal should have been
downgraded because it contained expired OAS certificates for its
aircraft, OAS certificates for only three of its pilots, and did not
sign many of its corporate policies. American Native notes that its
proposal contained all of the required information, including current
OAS certificates.
While NAAA failed to submit certain requested information,[5] the
record shows that it was generally downgraded for these omissions and
that American Native's proposal similarly did not include all
requested information and was also downgraded. For example, American
Native's proposal did not include resumes, certifications and licenses
for certain personnel, a complete nighttime flying policy, or a
detailed policy for dealing with neonatal patients.
In sum, on this record, we have no basis to object to the panel's
consensus report's conclusion that the proposals were both technically
acceptable and technically equivalent. American Native's arguments
only represent a disagreement regarding the relative merits of the
proposals and do not show that the agency's evaluation was
unreasonable.
American Native argues that the agency did not adequately investigate
the promises made in NAAA's proposal to verify their accuracy, and
that NAAA could not in fact meet the RFP requirements.[6] However, an
agency need not conduct such an independent investigation where it can
find the proposal reasonably commits the offeror to meet the RFP
requirements; the issue of whether NAAA actually has the capability to
perform the contract as promised in its proposal is a matter of
responsibility. General Offshore Corp., B-251969.5, B-251969.6, Apr.
8, 1994, 94-1 CPD para. 248 at 8.
Here, American Native not only contends that NAAA is incapable of
successfully performing the contract because it will not deliver what
it promised in its proposal, but also asserts that NAAA also could not
be found responsible because it lacks integrity[7] and because its
price was unreasonably low.[8] Nevertheless, the record evidences
that the IHS affirmatively determined and documented that NAAA was a
responsible contractor. We will not review an affirmative
determination of responsibility absent a showing of possible fraud, or
bad faith on the part of contracting officials or that definitive
responsibility criteria in the solicitation have not been met. 4
C.F.R. sec. 21.5(c); Mitel, Inc., B-270138, Jan. 17, 1996, 96-1 CPD para. 36
at 4.
American Native argues that the affirmative responsibility
determination of NAAA was motivated by bias. However, we do not
attribute unfair or prejudicial motives to government officials on the
basis of inference or supposition, because those officials are
presumed to act in good faith. Advanced Sciences, Inc., B-259569.3,
July 3, 1995, 95-2 CPD para. 52 at 17. Thus, where a protester alleges
bias on the part of government officials, the protester must provide
credible evidence clearly demonstrating bias against the protester or
for the awardee and that the agency's bias translated into action that
unfairly affected the protester's competitive position. Id. We have
reviewed the documents provided by American Native in support of its
allegations of bias[9] and none demonstrates that IHS acted with bias
in favor of NAAA.
Finally, Native American argues that the agency improperly failed to
conduct discussions. We agree. The solicitation announced that the
agency would evaluate proposals and make award after conducting
discussions. Under 41 U.S.C. sec. 253b(d)(1) (1994) and Federal
Acquisition Regulation sec. 15.610 (a)-(b), an agency is required to
conduct discussions unless the solicitation notified offerors that the
government intends to evaluate proposals and make award without
discussions. Since the RFP did not so notify offerors, the IHS'
decision to make award without conducting discussions was
improper.[10] Nevertheless, the record demonstrates that the
protester was not prejudiced by the agency's failure to conduct
discussions.
Our Office will not sustain a protest unless the protester
demonstrates a reasonable possibility that it was prejudiced by the
agency's actions, that is, unless the protester demonstrates that, but
for the agency's actions, it would have had a substantial chance of
receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1
CPD para. 54 at 3; see Statistica, Inc. v. Christopher, 102 F.3d 1577,
1581 (Fed. Cir. 1996).
American Native states that if discussions had been conducted, it
could have persuaded the agency that its proposal was technically
superior to NAAA's and that NAAA's prices were unreasonably low.
However, American Native misunderstands the nature of the requirement
for meaningful discussions; an agency is not obligated, and is indeed
precluded from, disclosing to an offeror a competitor's technical
approach or price; the items to be discussed are the weaknesses and
deficiencies in the offeror's own proposal relative to solicitation
requirements, not the merits of a competitor's proposal. Westinghouse
Elec. Corp., B-250486, Feb. 4, 1993, 93-1 CPD para. 229 at 16. Moreover,
while American Native now claims that it would have lowered its price
for Level III transport to match NAAA's if it had been provided an
opportunity to submit a best and final offer (BAFO), the fact is that
American Native would not (and should not) have been aware during
discussions of its competitor's lower price. In any case, American
Native advises that it would not have lowered its price for Level I
and II transports, because it believed NAAA's prices for those
services to be unreasonably low. Since the proposals were rated
technically equal, based upon the equally high technical scores, and
because the record shows that American Native could not have
substantially improved its already high technical score and would not
have lowered its price to a level below NAAA's if it had been provided
discussions and the opportunity to submit a BAFO, we find no basis to
conclude that American Native was prejudiced by IHS' failure to
conduct discussions. See General Physics Fed. Sys., Inc., B-275934,
Apr. 21, 1997, 97-1 CPD para. 171 at 6.
The protest is denied.
Comptroller General
of the United States
1. The RFP also cautioned that under the Buy Indian Act not more than
50 percent of the work could be subcontracted to other than an
Indian-owned firm.
2. While American Native complains that the price evaluation scheme is
defective because there are no estimated quantities for the Level I
and Level II transports, this constitutes a protest of an alleged
defect apparent from the face of the RFP not for consideration by our
Office inasmuch as it was filed after the time set for receipt of
initial proposals and is therefore untimely under our Bid Protest
Regulations, 4 C.F.R. sec. 21.2(a)(1) (1997).
3. The total technical score was derived from averaging each
individual member's score under each criterion, then totaling the sum
from each category.
4. There is no mention of more credit being given under the evaluation
scheme for proposing a higher number of aircraft than necessary to
meet the RFP requirements.
5. Although NAAA did not submit current OAS aircraft certificates in
its proposal, it explained that the 1997 certification was to be
completed by January 1, 1997.
6. For example, American Native complains that the agency did not
"independently verify" that NAAA had the number of aircraft or
subcontract arrangements claimed in its proposal or that it would in
fact comply with the RFP's subcontracting limitation.
7. For example, American Native questioned NAAA's prior billing
practices and contends that NAAA may have misappropriated its proposal
through industrial espionage. The agency has reviewed American
Native's claims regarding NAAA's asserted lack of integrity and
affirmed that it considers NAAA to be responsible. We also note that
the misappropriation issue presents a dispute between private parties
that our Office will not consider. Applied Communications Research,
Inc., B-270519, Mar. 11, 1996, 96-1 CPD para. 145 at 2-3.
8. The submission of a below-cost offer is not itself legally
objectionable. Whether a contract can be performed at the offered
price is a matter of the offeror's responsibility. Hughes Georgia,
Inc., B-272526, Oct. 21, 1996, 96-2 CPD para. 151 at 7. Where, as here,
the technical evaluation criteria do not provide for consideration of
price in the technical evaluation, a protester's claim that an offered
price is so low as to render a proposal technically unacceptable is
not a valid basis of protest. Akal Sec., Inc., B-261996, Nov. 16,
1995, 96-1 CPD para. 33 at 5-6.
9. For example, American Native asserts that NAAA obtained a copy of
the RFP earlier than the protester and references a number of
documents that evidence that the agency regarded NAAA as a potential
acceptable source for these type of services.
10. The record evidences that discussions may have been conducted only
with American Native, which allowed that firm to supplement its
proposal with various documents, thereby raising its point score.