BNUMBER: B-278678
DATE: February 27, 1998
TITLE: The American Indian Center, Inc., B-278678, February 27, 1998
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Matter of:The American Indian Center, Inc.
File: B-278678
Date:February 27, 1998
Mary Helen Deer and T. Craig Anderson for the protester.
Terrence J. Tychan, Department of Health & Human Services, for the
agency.
Jennifer Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Protest objecting to technical evaluation of proposal is denied
where record demonstrates that evaluators' judgments as to merits of
proposal were reasonable.
2. General Accounting Office will not consider complaint that awardee
lacks the stability of management and financial integrity necessary
for performance since such a complaint is in essence a challenge to
the contracting officer's affirmative determination of responsibility.
DECISION
The American Indian Center, Inc. (AIC) protests the evaluation of its
proposal and the award of a contract to the Dallas Inter-tribal
Center, Inc. (DIC) under request for proposals (RFP) No.
246-97-R-0012, issued by the Department of Health and Human Services,
Indian Health Service, for operation of a medical and dental clinic
serving the Indian population of the Dallas, Texas metropolitan area.
The protester contends that the evaluators' criticisms of its proposal
were unfounded and that the awardee should have been found ineligible
for award.
We deny the protest.
The RFP solicited proposals to furnish, equip, and staff an outpatient
medical and dental clinic accessible to the Indian population of the
Dallas metropolitan region. The solicitation advised offerors that
technical factors, the most important of which were program
description (worth 35 percent of an offeror's technical score), health
problem statements (worth 20 percent), and equipment and facilities
(also worth 20 percent), would be of paramount importance in the
selection of an awardee,[1] but that cost would be a discriminating
factor in the event there was no significant difference in the
technical evaluations of two or more offers. RFP sec. M. Competition
under the solicitation was limited to Indian-owned firms, and award of
a cost reimbursement contract was contemplated.
Two proposals were received by the September 2, 1997, closing date,
one from AIC and one from the incumbent contractor, DIC. Upon initial
evaluation, AIC's proposal received a score of 86 and DIC's a score of
64 out of a total of 100 available points. After holding discussions
with both offerors and furnishing them with the opportunity to revise
their proposals, the evaluators reevaluated and rescored the
proposals. The evaluators found that DIC had furnished information
that had been missing from its initial proposal and awarded the
proposal a significantly improved score of 97.5. AIC's proposal, on
the other hand, received a substantially lower score of 68 because the
revised proposal confirmed some of the weaknesses initially noted by
the evaluators. Among the weaknesses noted in AIC's proposal were the
location of its clinic at a site not accessible by public
transportation; its proposed reliance on volunteers to transport and
install government-owned equipment at its facility; its failure to
have hired or obtained commitments from required staff; and its
failure to have submitted property and procurement manuals.
After evaluation of AIC's and DIC's costs proposals, the agency
concluded that their evaluated costs were virtually equal (AIC,
$681,487.62; DIC, $681,975.69). Because DIC had received a
significantly higher technical score than AIC and its costs were
considered reasonable, DIC was selected for award. A contract was
awarded to DIC on October 31. AIC received a telephonic debriefing on
November 13, and protested to our Office on November 19.
The protester takes issue with the agency's evaluation of its
proposal. The evaluation of technical proposals is primarily the
responsibility of the contracting agency since the agency is
responsible for defining its needs and the best method of
accommodating them, and it must bear the burden of any difficulties
resulting from a defective evaluation. Federal Envtl. Servs., Inc.,
B-250135.4, May 24, 1993, 93-1 CPD para. 398 at 8-9. In reviewing
protests challenging an agency's evaluation of proposals, we will not
substitute our judgment for that of the agency regarding the merits of
proposals; rather, we will examine the agency's evaluation to ensure
that it was reasonable and consistent with the stated evaluation
criteria and applicable statutes and regulations. Young Enters.,
Inc., B-256851.2, Aug. 11, 1994, 94-2 CPD para. 159 at 3. A protester's
mere disagreement with the agency's evaluation does not render it
unreasonable. CORVAC, Inc., B-244766, Nov. 13, 1991, 91-2 CPD para. 454
at 5. Here, we conclude that the agency's evaluation of AIC's
proposal was reasonable.
As noted above, one of the principal weaknesses the agency found in
AIC's proposal was the location of its clinic at a site not accessible
by public transportation. The proposal was downgraded for this
weakness under the health problem statements evaluation factor,
receiving 13.5 of 20 available points. AIC asserts that the location
of its clinic--1 mile south of Highway 183 in Euless, Texas, which is
midway between Dallas and Fort Worth--is a strength rather than a
weakness because Euless is more centrally located, relative to the
population the clinic is intended to serve, than is the south-Dallas
location of the DIC clinic. The protester further argues that the
lack of public transportation to its location does not render the
facility inaccessible to clients without personal transportation
because it proposed to furnish shuttle van service between the clinic
and several locations accessible by the Dallas and Fort Worth public
transportation systems.
We think that the evaluators reasonably viewed the location of AIC's
clinic, regardless of how central to the population it is intended to
serve, as a weakness due to its inaccessibility by public
transportation. Although the protester insists that the vast majority
(i.e., 75 percent) of clinic patrons have access to personal
automobiles for travel to and from the clinic, there remains a
significant number (i.e., 25 percent) who are dependent on public
transportation for access to the clinic. We recognize that AIC
proposed shuttle van service as a solution to the inaccessibility
problem; it is clear from the record that the evaluators did not view
the proposed service, which relies on a single van to ferry patients
back and forth to a variety of different drop-off points, as providing
the same level of access as public transportation directly to the
site, however, and we see no basis upon which to question their
judgment in this regard.
Under the equipment and facilities factor, AIC's proposal received 9.5
of 20 points; the agency identified as a weakness AIC's proposed
reliance on volunteers to transport and install government-owned
equipment at its facility. The protester argues that its proposed
reliance on volunteer labor should not have been viewed as a weakness
because the nondental equipment would not require specially trained
personnel to move it from one site to another. The protester has not
argued that relocation of the dental equipment could be accomplished
by nonprofessionals; thus, regardless of whether or not volunteers
could successfully transport and reassemble the nondental items, we
think that the evaluators had a reasonable basis for viewing the
protester's failure to propose to employ professional movers as a
weakness.[2]
The proposal also was downgraded under the program description factor
(under which it received 23.5 of 35 points) in part because the
evaluators found that AIC had failed to hire or obtain commitments
from required staff. AIC argues that it was unfair for the evaluators
to downgrade its proposal for failing to include letters of commitment
from proposed staffers given that the RFP did not require such
letters.
Although the solicitation did not explicitly require the submission of
letters of commitment from proposed clinic staffers, it did require
offerors to "[p]rovide information on how the project is to be
organized, staffed and managed." RFP
sec. L-14.G.4.a.(3) (Emphasis added). AIC responded to this request for
information by stating, on page 30 of its proposal, as follows:
Professional staff from physicians to support staff will be hired
to staff the clinic to meet all requirements for standards and
for the State of Texas. If AIC is successful in being awarded
this contract, it is the intention to give the staff of the
current contracted clinic the first opportunity to retain their
positions. For those positions left unfilled, advertisements
will be placed in the local newspapers.
According to the protester, these sentences clearly conveyed its
intent to hire the incumbent's work force.
We do not think that the excerpt from its proposal cited by the
protester conveyed the information that AIC apparently intended, i.e.,
that it intended to offer positions to the staff currently working at
the DIC clinic and had reason to expect that they would accept.
Rather, the excerpt gave the impression the DIC staffers would not be
approached unless and until AIC received the award--and that no other
efforts at recruitment would be made until after the positions had
been offered to the incumbent employees. We think that it was
reasonable for the evaluators to have viewed this approach to
recruitment as insufficient to ensure that AIC would be prepared to
begin furnishing services on the contract's scheduled starting
date--and therefore to have downgraded the proposal under the program
description criterion.[3]
Finally, AIC argues that DIC should have been found ineligible for
award due to its management instability and lack of financial
accountability.
Whether an offeror has the organization and financial controls
necessary for successful performance is a matter bearing on its
responsibility.[4] See Federal Acquisition Regulation sec. 9.104-1(e).
Thus, where a protester argues that an awardee lacks these elements,
it is in essence challenging the contracting officer's affirmative
determination of the awardee's responsibility. Because the
determination that an offeror is capable of performing a contract is
based in large measure on subjective judgments which generally are not
readily susceptible of reasoned review, we do not consider such
challenges absent a showing of possible bad faith on the part of
government officials or that definitive responsibility criteria in the
solicitation were not met. Bid Protest Regulations, 4 C.F.R. sec.
21.5(c) (1997); King-Fisher Co., B-236687.2. Feb. 12, 1990, 90-1 CPD para.
177 at 2. Such a showing has not been made here.
The protest is denied.
Comptroller General
of the United States
1. The remaining technical evaluation factors were staff organization
and supervision (worth 10 percent of the technical score), quality
assurance and program evaluation (worth 5 percent), staffing
description (worth 5 percent), and management systems (worth 5
percent).
2. The evaluators also noted, as a weakness relating to AIC's
equipment, that the acquisition of DIC's equipment would not include
the "head x-ray," which belonged to DIC, and that AIC had not
explained how it otherwise intended to acquire such a unit. We think
that this criticism of AIC's proposal was unreasonable since, as the
protester points out, the catalogue of government-owned equipment
furnished with the RFP identified several panoramic x-ray machines as
available for transfer to the awardee. To the extent that this
listing was in error (and a necessary x-ray machine identified as
belonging to the government in fact belonged to DIC), we think that it
was incumbent upon the agency to raise the matter with AIC and give
the protester the opportunity to explain how it could otherwise
acquire the necessary item before penalizing it for failing to propose
to furnish it. We do not think that the failure to discuss this item
resulted in prejudice to AIC, however, because it is apparent from the
record that even if this deficiency had been corrected, AIC would
still have received a relatively low score under the equipment and
facilities criterion due to the previously discussed concerns
regarding the moving of equipment. In fact, even assuming AIC's
proposal had received full points under this factor (increasing its
score by 10.5 points), its overall score (78.5) would remain
considerably lower than the awardee's (97.5). Given that the
offerors' costs were virtually equal, there is no basis to conclude
that such an increase in score would have affected the award decision.
3. We need not address the protester's final complaint regarding the
evaluation of its technical proposal--i.e., that it was improperly
downgraded under the management systems criterion due to its failure
to furnish property management and procurement manuals--because any
downgrading of the proposal on this basis was de minimis. In this
regard, AIC's proposal received a score of 3.5 of a maximum possible
of 5 under the Management Systems criterion, meaning that it lost only
1.5 points for failing to furnish the manuals.
4. While traditional responsibility factors may be used as technical
evaluation factors in a negotiated procurement when a comparative
evaluation is to be made, Docusort, Inc., B-254852, Jan. 25, 1994,
94-1 CPD para. 38 at 6, the RFP here did not provide for consideration of
such factors.