TITLE: Hyperbaric Technologies, Inc., B-293047.2; B-293047.3, February 11, 2004
BNUMBER: B-293047.2; B-293047.3
DATE: February 11, 2004
**********************************************************************
Hyperbaric Technologies, Inc., B-293047.2; B-293047.3, February 11, 2004
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: Hyperbaric Technologies, Inc.
File: B-293047.2; B-293047.3
Date: February 11, 2004
Simon E. Dance, Esq., and Jeffrey S. Newman, Esq., Foley & Lardner, for
the protester.
Phillipa L. Anderson, Esq., Philip S. Kauffman, Esq., and Dennis M. Foley,
Esq., Department of Veterans Affairs, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protester*s challenge to the scope of the agency*s corrective action is
denied where the corrective action undertaken was appropriate to remedy
the concerns that led the agency to take corrective action.
DECISION
Hyperbaric Technologies, Inc. (HTI) protests the corrective action taken
by the Department of Veterans Affairs in response to an earlier protest
filed by HTI under request for proposals (RFP) No. 797-FDF3-03-0002, for
the upgrade and replacement of hyperbaric chambers at Brooks Air Force
Base (AFB) in Texas.
We deny the protest.
As a matter of background, we note that the current protest is one of
several challenges that have been filed by HTI in connection with this
procurement. HTI initially protested a previous solicitation for this
acquisition, RFP No. 797-FDF4-02-0041, alleging that the agency*s
evaluation and award decision under that solicitation was unreasonable.
HTI*s protest (B-291681.2) was dismissed by our Office as academic in
light of the agency*s cancellation of the solicitation; the agency had
determined, among other things, that the technical evaluation factors
needed to be clarified and that, in any event, the agency*s needs had
changed substantially, warranting a resolicitation.
The RFP, as reissued on June 20, 2003, solicited proposals for the upgrade
and replacement of hyperbaric chambers and for related services at the
Hyperbaric Medicine Division of the United States Air Force School of
Aerospace Medicine, Brooks AFB. Award was to be made to the offeror whose
proposal was most advantageous and represented the best value to the
government. The RFP identified the following evaluation factors and
subfactors:
+------------------------------------------------------------------------+
|1. Technical Capability |
|------------------------------------------------------------------------|
| |a. Suitability of overall upgrades/new chamber |
| |--------------------------------------------------------------|
| |b. Proposal demonstrates understanding of requirements |
| |--------------------------------------------------------------|
| |c. Overall quality and technical specifications |
|------------------------------------------------------------------------|
|2. Past Performance |
|------------------------------------------------------------------------|
| |a. Experience |
| |--------------------------------------------------------------|
| |b. Reported customer satisfaction/testimonials |
|------------------------------------------------------------------------|
|3. Price |
+------------------------------------------------------------------------+
RFP amend. 1, at 18. The RFP provided that technical capability and past
performance, when combined, were significantly more important than price.
Within the technical capability factors, the RFP stated that subfactor (a)
was more important than subfactor (b), and that subfactor (b) was more
important than subfactor (c). Under past performance, the RFP stated that
subfactor (a) was stated to be more important than subfactor (b). Id.
The source selection plan, which was not disclosed in the RFP, provided
that proposals would be point-scored on a 100-point scale as follows:
+------------------------------------------------------------------------+
|Factor |Subfactor |Point Value |
|-------------+---------------------------------------------+------------|
|Technical |Suitability of overall upgrades/new chamber |[DELETED] |
|Capability |---------------------------------------------+------------|
| |Proposal demonstrates understanding | |
| |of requirements |[DELETED] |
| |---------------------------------------------+------------|
| |Overall quality and technical specifications |[DELETED] |
| |---------------------------------------------+------------|
| |Total Technical Points |[DELETED] |
|-------------+---------------------------------------------+------------|
|Past |Experience |[DELETED] |
|Performance |---------------------------------------------+------------|
| |Reported customer satisfaction/testimonials |[DELETED] |
| |---------------------------------------------+------------|
| |Total Past Performance Points |[DELETED] |
|-------------+---------------------------------------------+------------|
|Price |Total Points |[DELETED] |
+------------------------------------------------------------------------+
Agency Report (AR), exh. 2, Source Selection Plan.
The VA received proposals from three offerors, including HTI and PCCI,
Inc., which were evaluated using the numeric rating system described
above. After reviewing the technical and price evaluation results, the
contracting officer determined that PCCI*s proposal represented the best
value to the government and award was made to PCCI on September 29.
Contracting Officer*s Statement at 1. On October 14, after receiving a
debriefing, HTI protested the award determination to our Office. In its
protest (B-293047) HTI argued that the agency misevaluated proposals,
failed to follow the solicitation*s stated evaluation criteria, and made
an unreasonable best value determination. Protest at 2-12.
The VA subsequently decided to take corrective action based on its review
of the procurement. By letter dated October 29, the VA informed our
Office that it would review the solicitation provisions to ensure that
they were consistent with the agency*s needs, amend the solicitation as
necessary, request and evaluate final proposal revisions, and make a new
source selection decision. Letter from VA to GAO, Oct. 29, 2003. Because
of the VA*s decision to take corrective action, our Office dismissed the
protest on November 5, 2003. The VA then implemented corrective action
that consisted of amending the RFP*s evaluation scheme and requesting
proposal revisions. According to the agency, the purpose of this
amendment was to conform the relative importance of the stated RFP
evaluation factors to the point scoring methodology in the source
selection plan, a methodology which the agency reports it always intended
to use to evaluate proposals. The evaluation scheme as included in this
amendment was as follows:
+------------------------------------------------------------------+
|1. Technical Capability |
|------------------------------------------------------------------|
| |a. Suitability of overall upgrades/new chamber |
| |-----------------------------------------------------------|
| |b. Proposal demonstrates understanding of requirements |
| |-----------------------------------------------------------|
| |c. Overall quality and technical specifications |
|------------------------------------------------------------------|
|2. Price |
|------------------------------------------------------------------|
|3. Past Performance |
|------------------------------------------------------------------|
| |a. Experience |
| |-----------------------------------------------------------|
| |b. Reported customer satisfaction/testimonials |
+------------------------------------------------------------------+
RFP amend. 3, at 2.
The amended evaluation scheme stated that technical capability was more
important than price and past performance, and that price was more
important than past performance. The amendment retained the original RFP
language which stated that the nonprice factors, when combined, were
significantly more important than price.[1] On November 12, the amendment
was transmitted to the three offerors who had originally responded to the
solicitation, together with a request for proposal revisions by November
17. HTI then filed this protest with our Office objecting to the scope of
the corrective action.
The crux of the protester*s objections is that the agency*s corrective
action only focused on the RFP*s stated evaluation scheme and failed to
remedy various other solicitation improprieties raised by HTI in its
earlier protest. Protest at 7-10; Comments at 5-7. This argument is
without merit since, as discussed below, there is no requirement that the
VA*s corrective action address all of the issues raised by HTI in its
earlier protest.
An agency has broad discretion in a negotiated procurement to take
corrective action where the agency determines that the action is necessary
to ensure a fair and impartial competition. Strand Hunt Constr., Inc.,
B-292415, Sept. 9, 2003, 2003 CPD
P: 167 at 4; SMS Data Prods. Group, Inc., B-280970.4, Jan. 29, 1999, 99-1
CPD P: 26 at 2. Where an agency has reasonable concerns that there were
errors in the procurement, the agency may take corrective action even if
it is not certain that a protest of the procurement would be sustained.
Main Bldg. Maint., Inc., B-279191.3, Aug. 5, 1998, 98-2 CPD P: 47 at 3.
We will not object to the specific corrective action, so long as it is
appropriate to remedy the concern that caused the agency to take
corrective action. Id.; Networks Elec. Corp., B-290666.3, Sept. 30, 2002,
2002 CPD
P: 173 at 3.
Our review of the record here shows that the VA reasonably decided to
amend the RFP and request and evaluate final proposal revisions in order
to remedy defects in the procurement process. Specifically, the
corrective action was undertaken as a result of the agency*s concern that
it had evaluated the three proposals received using the evaluation
methodology in the source selection plan described above, which was at
least arguably inconsistent with the stated RFP evaluation scheme.
Contrary to HTI*s view, the RFP did not identify the varying importance
among the individual evaluation factors and, in the absence of any
indication in the RFP of the relative importance among the individual
evaluation factors, they are presumed to be of equal importance.[2] See
Maryland Office Relocators, B-291092, Nov. 12, 2002, 2002 CPD P: 198 at 5;
Logicon RDA, B-252031.4, Sept. 20, 1993, 93-2 CPD P: 179 at 7. In this
case, however, the record shows that the VA never intended to give equal
weight to the evaluation factors, as evidenced by the actual evaluation of
the initial proposals.
Rather, as the agency acknowledges, it intended to use a scoring
methodology in which technical capability was more important than price
(technical capability was worth a total of [DELETED] points and price was
worth [DELETED] points) and price was more important than past performance
(past performance was assigned only [DELETED] points). Under these
circumstances, we think the VA properly decided to amend the RFP
evaluation scheme to remedy this defect since it is fundamental that
offerors be advised of the bases upon which their proposals will be
evaluated.
To the extent HTI contends that the corrective action had no effect on the
competition and merely *glosses over* improprieties in the solicitation,
Comments
at 3-7, its disagreement with the scope of the corrective action--that the
agency*s corrective action did not remedy HTI*s challenge to the agency*s
evaluation of PCCI*s proposal and the award decision--does not provide a
basis to question the agency*s actions. We think the VA*s decision to
solicit and evaluate revised proposals and to make a new best-value
determination based on that reevaluation renders academic HTI*s protest of
the initial evaluation and award decision. In short, the other alleged
deficiencies or improprieties identified in HTI*s earlier protest became
moot where the agency*s decision to reopen the competition and make a new
best value determination afforded the protester another opportunity to be
considered for award.[3]
Further, the protester asserts that other than HTI*s price reduction,
there were no changes in the revised proposals submitted to the VA in
response to the amendment at issue here and that this shows that the
amendment was unnecessary. However, as discussed previously, we think the
agency*s corrective action was reasonable at the time it was undertaken.
The fact that other offerors, other than HTI, did not revise their
proposals does not establish that the agency*s decision to amend the RFP
evaluation language was improper corrective action.
The protest is denied.[4]
Anthony H. Gamboa
General Counsel
------------------------
[1]Other than a minor change that neither party claims has a material
impact, the amendment retained the RFP*s relative weighting of the
subfactors of the technical capability and past performance factors. RFP
amend. 3, at 2.
[2]The VA correctly notes that the Federal Acquisition Regulation (FAR)
requires that solicitations set forth the relative importance of all
factors and significant subfactors that will affect contract award (which
the RFP had not done), as well as inform offerors (as the RFP had done)
whether, when combined, the nonprice factors are either (1) significantly
more important than price; (2) equal to price; or
(3) significantly less important than price. FAR S: 15.304(d), (e).
[3]On December 22, 2003 HTI filed another protest (B-293047.4) of an award
to PCCI; this protest is pending. Our Office intends to issue a separate
decision addressing the merits of that protest.
[4]HTI also requests that we recommend that the agency reimburse the firm
for protest costs, including attorneys* fees. As to its earlier protest
(B-293047), we deny the request because the VA took reasonably prompt
corrective action. HSQ Tech.--Costs, B‑276050.2, June 25, 1997,
97-1 CPD P: 228 at 2. As to this protest of the corrective action,
because we are denying the protest, there is no basis for us to recommend
reimbursement of costs to the protester.