TITLE:  Life Oxygen & Health Services, Inc., B-282243, June 18, 1999
BNUMBER:  B-282243
DATE:  June 18, 1999
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Life Oxygen & Health Services, Inc., B-282243, June 18, 1999

Decision

Matter of: Life Oxygen & Health Services, Inc.

File: B-282243

Date: June 18, 1999

Bob Keesaer for the protester.

Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the agency.

Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency reasonably downgraded protester's proposal in past performance
evaluation where contract reference assigned protester middle (instead of
highest) of three ratings for all questions in past performance
questionnaire, and marked "maybe" in indicating whether it would recommend
the protester for current or future contracts.

2. Agency reasonably increased awardee's evaluation score under quality
assurance factor where awardee improved its best and final offer in that
area in response to discussion questions; fact that one evaluator on
technical evaluation team (TET) made a negative comment about awardee's
performance on a prior contract during the evaluation process does not
render the increase unreasonable, where TET nevertheless determined that
increase was warranted and, in any case, evaluator ultimately agreed with
other TET members regarding awardee's quality assurance rating.

DECISION

Life Oxygen & Health Services, Inc. protests the award of a contract to
Rotech Medical Corporation, also known as Resp-A-Care, Inc., under request
for proposals (RFP) No. 249-01-99, issued by the Department of Veterans
Affairs (VA) for home oxygen services at seven VA medical centers located in
Tennessee, West Virginia, and Kentucky. Life Oxygen principally challenges
the evaluation of its and the awardee's proposals.

We deny the protest.

The RFP, issued on October 20, 1998, contemplated the award of a fixed-price
contract for a base year, with four 1-year options, to furnish all rental,
delivery, supplies, oxygen, and related services. RFP at 3. Award was to be
made to the responsible firm whose offer conforms to the solicitation and is
most advantageous to the government, based on the following (with available
points out of 100 total): (1) prior experience and demonstrated capability
(30 points); (2) quality assurance (30 points); (3) past performance (20
points); and (4) cost (20 points). RFP at 51; Contracting Officer's
Statement at 1. With regard to past performance, offerors' proposals were to
be evaluated on the basis of past performance questionnaires from the
references listed in each offeror's proposal. RFP at 50; Agency Report at 2.
The RFP required offerors to provide no more or less than three references
for verification of past performance. RFP at 50.

Among the proposals received by the amended December 30 closing date were
Life Oxygen's and Resp-A-Care's; both were included in the competitive
range. Agency Report at 2. Following written discussions on the technical
proposals, the agency requested and received best and final offers (BAFO).
The agency then held price discussions and requested and received revised
BAFOs. The technical evaluation team (TET) evaluated the revised BAFOs as
follows:

               Technical      Price
               score

 Life Oxygen   87.7           $9,087,516.00

 Resp-A-Care   90.5           12,547,084.32

Agency Report encl. 17, Price Negotiation Memorandum, at 2, 3. Based on the
prices and technical scores, the VA made award to Resp-A-Care. Id. at 2.

PAST PERFORMANCE

Life Oxygen's proposal received 13.7 of the 20 available points under the
past performance factor. Life Oxygen maintains that it should have received
a higher score in light of the favorable past performance questionnaire
submitted by the [deleted] of Mariner Health Care, one of the references
listed in Life Oxygen's proposal. Agency Report encl. 12, Life Oxygen's BAFO
Evaluation, at 3; Protest at 1; Comments at 2.

In reviewing an agency's evaluation of proposals, we will not reevaluate the
proposals; rather, we will examine the record only to ensure that the
evaluation was reasonable and in accordance with the stated evaluation
scheme. Development Alternatives, Inc., B-279920, Aug. 6, 1998, 98-2 CPD para.
54 at 4.

The evaluation in this area was reasonable. The questionnaire to which the
protester refers covered a contract under which Life Oxygen provided durable
medical equipment (DME), a requirement which (the agency advised our Office
during a conference call) is not as involved as an oxygen supply contract
such as the one here. Agency Report at 3 n.4, 5 n.9. The agency reports that
it received two questionnaires signed by Mariner's [deleted], one for DME
and one for oxygen supply, and because the solicitation called for precisely
three questionnaires to be considered and consideration of both Mariner
questionnaires would have led to a total of four, it considered the
questionnaire which covered work by Life Oxygen on a home oxygen services
contract and did not consider the questionnaire related to the firm's work
on a DME contract. Agency Report at 5. On Mariner's questionnaire covering
the oxygen services work, Life Oxygen was assigned only the second of three
possible ratings for each of the questions and, with regard to whether the
reference would recommend Life Oxygen for future contracts and would use
them again for their current contract, the reference indicated only "maybe."
Agency Report encl. 9, Questionnaires for Life Oxygen, at 3, 4. There is
nothing unreasonable in the agency's decision to consider the reference
regarding a similar contract and not to consider the same reference's
write-up of a less similar contract (where the solicitation called for
consideration of only three of the four references that the agency had
received); the logic of doing so is obvious. Similarly, we find nothing
unreasonable in the agency's downgrading Life Oxygen based on the neutral
responses in the questionnaire and the reference's concerns reflected in its
questionnaire indicating only that it might contract with Life Oxygen in the
future.

Life Oxygen questions the agency's assertion that it relied on a second
questionnaire from Mariner, claiming that Mariner's [deleted] completed only
one questionnaire, and that the response was very favorable. Life Oxygen
relies in this regard on a March 31, 1999 letter provided by Mariner at the
protester's request, in which the [deleted] states that [deleted] "received
one (1) inquiry as to contractor performance," on a contract Life Oxygen
performed for the past 5 years "to provide oxygen supplies, E-Tank O2,
Liquid O2, respiratory supplies, concentrators and clinical services seven
(7) days a week by a credentialed therapist," and that [deleted] wrote
"definitely" next to the question concerning whether [deleted] would
recommend Life Oxygen for future contracts and would use them again for the
current contract. Comments at 2; Letter from Mariner to Life Oxygen (Mar.
31, 1999).

While the source of the confusion regarding Mariner's questionnaires is
unclear, the record in fact contains two signed questionnaires from the
[deleted] of Mariner for work performed by Life Oxygen on two separate
contracts, as discussed above--one favorable, concerning the DME contract,
and one less favorable, for home oxygen services. Agency Report encl. 9,
Questionnaires for Life Oxygen, at 3, 4, 7, 8. During the course of this
protest, the VA specifically requested Mariner's [deleted] to clarify
whether [deleted] completed the unfavorable questionnaire concerning the
protester's home oxygen services contract. By letter of April 20, the
[deleted] responded that "while it appears to be my signature on page 2 of
the questionnaire I could not say for certain one way or the other if it
is." Letter from Mariner to the VA (Apr. 20, 1999). Since the signature on
the questionnaire appears to be the [deleted], the [deleted] does not deny
that it is [deleted] signature, and there was nothing else in the
questionnaire bringing into question its authenticity, there is no basis for
us to question the agency's reliance on this questionnaire in the
evaluation.

QUALITY ASSURANCE

Life Oxygen argues that the agency unreasonably increased Resp-A-Care's
revised BAFO score by two points under the quality assurance factor, since
one of the evaluators noted during the evaluation that the firm's
performance under a prior DME contract with the VA went "downhill" after it
lost a key employee. Protest at 2; Comments at 2. Life Oxygen maintains that
this indicates poor quality assurance.

The evaluation in this area was reasonable. The agency initially downgraded
Resp-A-Care's initial technical proposal and BAFO under the quality
assurance factor, where the firm received 28 of 30 available points, because
the firm failed to provide evidence of timely monitoring of each new
patient, and a performance improvement (PI) plan that included JCAHO
functions. Agency Report encl. 2, Resp-A-Care's Evaluation, at 2; Agency
Report encl. 14, Resp-A-Care's BAFO Evaluation, at 3. Following discussions
during which these concerns were raised, the firm submitted a revised BAFO
addressing these concerns. Agency Report encl. 5, Resp-A-Care's Revised
BAFO. Specifically, Resp-A-Care included in its revised BAFO the methods for
timely monitoring of each new patient, such as when the initial assessment
for each new home oxygen patient would be completed, by whom the assessments
would be performed, and the type of assessment forms that would be used. Id.
at 2, 3. In addition, Resp-A-Care's PI plan included some JCAHO functions,
such as maintaining an updated patient list, which reflects the various
needs of different patients in times of emergencies or possible service
interruptions. Id. at 3. The fact that one evaluator made a negative comment
about Resp-A-Care's prior performance did not by itself render the 2-point
increase improper; different evaluators may develop different opinions in
evaluating a proposal. Oceaneering Int'l, Inc., B-278126, B-278126.2,
Dec. 31, 1997, 98-1 CPD para. 133 at 10. Notwithstanding this evaluator's
expressed concern, the TET ultimately reached a consensus that the increase
was warranted. Moreover, the record shows that the evaluator ultimately
agreed with the other TET members regarding Resp-A-Care's quality assurance

rating and the source selection. [1] Contracting Officer's Statement at 3;
Agency Report at 6.

The protest is denied.

Comptroller General

of the United States

Notes

1. In its protest, the protester raised other arguments, to which the agency
responded in its report. In commenting on that report, the protester did not
attempt to rebut the agency's responses. Accordingly, we consider it to have
abandoned those bases of protest. Arjay Elecs. Corp., B-243080, July 1,
1991, 91-2 CPD para. 3 at 1 n.1. In addition, in its comments on the agency
report, the protester raises additional arguments concerning the evaluation
of its proposal and the adequacy of discussions. Under our Bid Protest
Regulations, protests such as this must be filed no later than 10 days after
the protest bases were known or should have been known. 4 C.F.R.
sect. 21.2(a)(2) (1999). The agency report, issued on April 9, 1999, contained
the information on which these arguments are based. Thus, these arguments
had to be raised no later than April 19. Because the protester's comments
were not received in our Office until April 26, these arguments are untimely
and will not be considered. Outdoor Venture Corp., B-279777, July 17, 1998,
98-2 CPD para. 27 at 3 n.1.