TITLE:  American Medical Information Services, B-288627, November 7, 2001
BNUMBER:  B-288627
DATE:  November 7, 2001
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Decision

Matter of: American Medical Information Services

File: B-288627

Date: November 7, 2001

Stephen Jacob for the protester.

Phillipa L. Anderson, Esq., Dennis Foley, Esq., and Rheba Heggs, Esq.,
Department of Veterans Affairs, for the agency.

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

DIGEST

Protest that solicitation gives undue weight to past performance because, in
addition to past performance evaluation factor, certain non-price subfactors
included under technical excellence and management factors concern past
performance-related considerations, is denied; there is no limitation on
weight agency can assign particular factors in evaluation.

DECISION

American Medical Information Services (AMEDIS) protests the terms of request
for proposals (RFP) No. 504-01-021, issued by the Department of Veterans
Affairs (VA) for medical transcription services at the VA Medical Center in
Amarillo, Texas and six outpatient clinics in Texas, New Mexico and Kansas.
AMEDIS contends that the RFP assigns undue weight to past
performance-related evaluation considerations.

We deny the protest.

The RFP, issued July 20, 2001 as a total small business set-aside, provides
for the award of an indefinite-delivery, indefinite-quantity contract for
off-site transcription services for a base year, with four 1-year options.
RFP at 1b. Evaluation is to be on a "best value" basis using the following
factors, subfactors and weights:

(1) Past Performance 30%

   * all contracts
   * Government contracts

(2) Technical Excellence 30%

   * error rate
   * turn around time
   * equipment

  1. Cost 25%
  2. Management 15%

   * company experience
   * personnel experience

RFP at 11. Proposals are to be rated under each factor on a scale of 1
(poor) to 5 (excellent) points. Id.

AMEDIS complains that the error rate and turn-around time subfactors under
the technical excellence factor, and the company experience and personnel
experience subfactors under the management factor are redundant of the past
performance factor, and that this results in giving exaggerated importance
to past performance in the evaluation and award decision.

This argument is without merit. While it is fundamental that offerors must
be advised of the bases upon which their proposals will be evaluated, H.J.
Group Ventures, Inc., B-246139, Feb. 19, 1992, 92-1 CPD para. 203 at 4, and that
price must be considered, Federal Acquisition Regulation (FAR) sect. 15.304,
there is no limitation on how much weight a particular factor can be
accorded. Rather, the evaluation factors and significant subfactors that
apply to an acquisition, and their relative importance, are within the broad
discretion of the agency. Id. Here, the subfactors encompassed by each
factor are specifically set forth in the solicitation, so that offerors are
on clear notice of how the agency intends to evaluate their offers. Even if
the protester is correct that the identified subfactors under the technical
excellence and management factors relate to past performance, there simply
is nothing improper in the resulting additional emphasis on past
performance. The fact that it may be difficult for the protester to compete
under such an evaluation scheme does not by itself render the scheme
improper.

AMEDIS expresses concern that the listing of past performance-related
considerations under other factors will enable VA to downgrade the firm
based on its lack of relevant past performance, contrary to FAR sect.
15.503(a)(2)(iv), which provides that offerors without relevant past
performance "may not be evaluated favorably or unfavorably on past
performance." However, at this juncture proposals have not even been
submitted, let alone evaluated, and nothing on the face of the solicitation
suggests that VA intends to evaluate firms lacking relevant past performance
other than in accordance with the FAR. We do note in this regard that it is
our view that, regardless of the factor under which a past
performance-related

subfactor is listed, agencies are prohibited from rating firms unfavorably
under such subfactors on the basis that they lack relevant past performance.

The protest is denied.

Anthony H. Gamboa

General Counsel