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.