TITLE:  Innovative Management, Inc., B-291375, November 20, 2002
BNUMBER:  B-291375
DATE:  November 20, 2002
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Innovative Management, Inc., B-291375, November 20, 2002

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:    Innovative Management, Inc.
    
File:             B-291375
    
Date:              November 20, 2002
    
Theodore M. Bailey, Esq., and Johnathan M. Bailey, Esq., for the
protester.
Mike Colvin, Department of Health and Human Services, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Protester was not prejudiced by agency's alleged loss of protester's
original transparencies for its oral presentation, where agency provided
protester with copies of the transparencies that protester used during its
oral presentation, and nothing in the record suggests that the lack of the
original transparencies and use of copied transparencies had any effect on
the evaluation.
DECISION
    
Innovative Management, Inc. protests the award of a contract to Medical
Business Consultants (MBC) under request for proposals (RFP) No.
232-03-0001, issued by the Department of Health and Human Services, for
clinical operations services.

   We deny the protest in part and dismiss it in part.

   The RFP, which was restricted to firms certified under the Small Business
Administration's section 8(a) program, provided for the award of a
labor-hour, personal services contract for a base period of 1 year with
four 1-year options.  RFP at 90, 121.  The RFP stated that award would be
made to the offeror whose proposal represented the best value to the
government based upon the following evaluation factors:  technical merit,
past performance, and price.  The RFP provided that technical merit would
*receive paramount consideration* in the agency's award determination. 
RFP at 134. 
    
The RFP provided that offerors whose proposals had been determined by the
agency to be in the competitive range would be invited to make oral
presentations addressing the offerors' *Understanding of the Problem and
Technical Approach to accomplishing the goals and objectives of this
solicitation.*  Offerors were requested to submit with their initial
proposals a maximum of *25 view graph style briefing charts* to support
such a presentation.  RFP at 127.  The offerors were also informed that
after they had finished their oral presentations, the agency would
administer a *pop quiz* consisting of three problems.  RFP at 129.
    
The agency received four proposals, including Innovative Management's and
MBC's, by the RFP's closing date of July 29, 2002.  The proposal of
Innovative Management was evaluated as *acceptable* with *moderate risk*
under the technical evaluation factor, and *moderate risk* under the past
performance factor, at an evaluated price of $26.1 million.[1]  MBC's
proposal received a rating of *acceptable* with *low risk* under the
technical factor, and *very low risk* under the past performance factor,
at an evaluated price of $21.4 million.  Only the proposals of Innovative
Management and MBC were included in the competitive range.  Agency Report
(AR), Tab 17, Competitive Range Determination, at 2.
    
Oral presentations were scheduled and conducted on August 14.  At the time
of Innovative Management's oral presentation, the agency was unable to
locate the transparencies that Innovative Management had provided with its
proposal.  The agency, however, had photocopies of the original
transparencies, and reproduced a set of transparencies from the
photocopies, which Innovative Management used in its oral presentation. 
Contracting Officer's Statement at 12. 
    
The agency next forwarded written discussion questions to both Innovative
Management and MBC, and requested that the offerors submit final revised
proposals (FRP) by August 23, 2002.  The agency evaluated the FRPs,
considering the content of the offerors' proposals, as well as the
offerors' oral presentations and responses to the agency's *pop quiz*
questions.  MBC received ratings of *good* with *low risk* under the
technical factor, and again was rated *very low risk* under the past
performance factor, with its evaluated price remaining at $21.4 million. 
Innovative Management received ratings of *good/satisfactory* with
*moderate risk* under the technical evaluation factor, with its *moderate
risk* rating under the past performance factor and evaluated price of
$26.1 million remaining as before.  The agency selected MBC's proposal for
award, given its higher technical rating and lower price.  AR, Tab 27,
Revised Technical Evaluation Report and Contract Award Recommendation.
    
Innovative Management argues that the agency erred in not having
Innovative Management's original transparencies available for its use
during its oral presentation.  The protester asserts that its use of
copies of its transparencies *placed [it] at a disadvantage in comparison
with the other competitors whose presentation materials were available for
their use,* and made Innovative Management appear *unprepared and
unprofessional.*  Protest at 5; Protester's Comments at 2.
    
Prejudice is an element of every viable protest, and 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 prospect of receiving award. 
McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD P: 54 at 3; see
Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
    
The record here, which consists of, among other things, the individual
evaluator score sheets for the oral presentations, does not contain any
evidence that the agency's evaluation of Innovative Management's oral
presentation was affected by Innovative Management's use of copied
transparencies rather than originals.  For example, while the record
provides numerous statements regarding the strengths and weaknesses of
Innovative Management's proposal and oral presentation, there is no
mention or any other indication that any of these statements resulted
from, or were somehow affected by, Innovative Management's use of copied
transparencies.  Accordingly, we fail to see how Innovative Management was
prejudiced by the agency's alleged error in not having Innovative
Management's original transparencies available for use during its oral
presentation.
    
The protester next complains that the solicitation was defective because
it requires that the successful contractor maintain medical malpractice
insurance. 
    
The solicitation as issued required that the successful contractor
maintain insurance as specified in Department of Health and Human Services
Acquisition Regulation S: 352.228-7, Insurance--Liability to third
persons.  The record reflects that a representative of the protester
contacted the agency shortly after oral presentations and stated that it
did not believe that malpractice insurance should be a requirement of the
solicitation.  The protester also complained here that in any event the
clauses in the solicitation that the agency interpreted as requiring
malpractice insurance were defective in that they did not provide
information regarding the dollar amount of malpractice insurance
required.  AR, Tab 24, Memorandum to Document Oral Negotiations with
Innovative Management (Aug. 19, 2002), at 1-2.  The agency responded to
the protester's concerns by issuing amendment No. 5 to the solicitation,
which specified that *[c]ontractors are required to obtain and maintain,
for the life of the contract, malpractice insurance* of *$1 Million per
occurrence and $3 million per year.*  RFP, Amend. No. 5 (Aug. 20, 2002),
at 2.  Innovative Management submitted its FRP on August 23, filed an
agency-level protest challenging the terms of the solicitation on
September 4, and filed its protest with our Office on September 10.
    
Our Bid Protest Regulations contain strict rules for the timely submission
of protests.  They specifically require that a protest based upon alleged
improprieties in a solicitation that are apparent prior to the closing
time for receipt of proposals must be filed before that time.  4 C.F.R. S:
21.2(a)(1) (2002).  This rule includes challenges to alleged improprieties
that do not exist in the initial solicitation, but which are subsequently
incorporated into it; in such cases, the solicitation must be protested
not later than the next closing time for receipt of proposals following
the incorporation.  Id.; see Cessna Aircraft Co., B-261953.5, Feb. 5,
1996, 96-1 CPD P: 132 at 16.  In this respect, our timeliness rules
reflect the dual requirements of giving parties a fair opportunity to
present their cases and resolving protests expeditiously without unduly
disrupting or delaying the procurement process.  Dominion Aviation,
Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD P: 62 at 3. 
    
Considered most favorably to the protester, the solicitation's
requirements regarding malpractice insurance were clear as of the agency's
issuance of amendment No. 5 on August 20.  Accordingly, because the
protester did not file its protest challenging the malpractice insurance
requirements prior to the submission of its FRP on August 23, its protest
is untimely.
    
The protest is denied in part and dismissed in part.
    
Anthony H. Gamboa
General Counsel
    
    

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   [1] As set forth in the RFP, the offerors' technical proposals were
evaluated for technical merit as well as proposal risk.  The offerors'
past performance proposals were evaluated for performance risk.  RFP at
134-36.