TITLE: Hyperbaric Technologies, Inc., B-293047.4, March 29, 2004
BNUMBER: B-293047.4
DATE: March 29, 2004
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Hyperbaric Technologies, Inc., B-293047.4, March 29, 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-293047.4
Date: March 29, 2004
Simon E. Dance, Esq., Jeffrey S. Newman, Esq., and Heather M. Trew, Esq.,
Foley
& Lardner, for the protester.
William A. Roberts, III, Esq., Timothy W. Staley, Esq., and Jonathan L.
Kang, Esq., Wiley Rein & Fielding, for PCCI, Inc., an intervenor.
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
1. Protester*s contention that agency improperly evaluated its proposal
is denied where the record shows that the agency evaluated proposal in
accordance with the criteria announced in the solicitation and the record
reasonably supports the evaluators* judgment.
2. Protest of agency*s price/technical tradeoff decision is denied where
the solicitation stated that technical capability was more important than
price and the source selection official reasonably found, with articulated
reasons, that the awardee*s technical strengths outweighed the protester*s
slightly lower price advantage.
DECISION
Hyperbaric Technologies, Inc. (HTI) protests the award of a contract to
PCCI, Inc. under request for proposals (RFP) No. 797-FDF3-03-0002, issued
by the Department of Veterans Affairs (VA) to upgrade and modernize
multiplace hyperbaric chambers, related equipment and systems located at
the Hyperbaric Medicine Division, United States Air Force (USAF) School of
Aerospace Medicine, Brooks City-Base in Texas. HTI challenges the agency*s
evaluation and source selection decision.
We deny the protest.
The Hyperbaric Medicine Division at Brooks City-Base is a medical
treatment facility which has two cylindrical multiplace hyperbaric
chambers that can accommodate two or more patients, medical personnel,
patient attendants and/or a chamber operator. The hyperbaric chambers are
pressurized and are used to treat patient wounds or infections by
administering oxygen (or other gases) directly into the patient*s body to
aid in healing. Hearing Transcript (Tr.) at 12-16, 233-34.[1]
The RFP was issued on June 20, 2003 as a commercial item acquisition and,
as amended, contemplated the award of a fixed-price contract on a *best
value* basis for the successful contractor to upgrade the main hyperbaric
chamber (Chamber 1) and to remove, design and replace the smaller *Panama*
hyperbaric chamber
(Chamber 2). The statement of work (SOW) described the *minimum
requirements* needed to upgrade and modernize both chambers, the
associated equipment and support systems. RFP amend. 1, Questions and
Answers (Q&A) No. 40
(July 15, 2003).[2] These upgrades include improvements to the fire
suppression systems, and the chamber control systems for both hyperbaric
chambers, and the installation and integration of a new state-of-the-art
central control console system. RFP amend. 1, at 7. The solicitation
further required that this central control console system should be a 21st
century automated system with touch screen control capability and
user-friendly operating system that can operate both multiplace chambers
simultaneously. Id. at 8.
In response to a question posed by a potential offeror, the VA also
addressed the central control console touch screen capability
requirements. The Q&A was as follows:
Q: Your replies to our questions concerning an automated system were
satisfactory, however, in paragraph 1.5.1 there has been added a
requirement for a touch screen control for the automated system. HTI*s
automated FDA [United States Food and Drug Administration] approved
control system is operated by touching buttons versus touching a touch
screen. In both cases automation is achieved by touching one button.
Given our FDA automated hyperbaric control system approval, will our
system be satisfacory?
A: [USAF] wants touch screen capability. However, we will evaluate all
proposals and select the best one that meets our requirements.
RFP amend. 2, Q&A No. 1 (July 28, 2003). As to Chamber 2, offerors were
required to design the replacement multiplace chamber with the best
possible space utilization that provided a minimum of 2-gurney, or
6-ambulatory, or 4-wheelchair patient capability and with chamber door
openings designed for easy gurney and wheelchair access. RFP amend. 1, at
8. The RFP also included special requirements for Chamber 2 which, among
other things, identified various codes, regulations, and standards with
which offerors were to comply. RFP amend. 2, at 4. One of these special
requirements was as follows:
All applicable systems and installations must meet or exceed
the most current National Fire Prevention Association (NFPA) Chapter 20
[codes] for Hyperbaric Facilities, and ASME [American Society of
Mechanical Engineers] guidelines on Pressure Vessels for Human Occupancy
(PVHO) at the time of final inspection.
Id.
The RFP provided for the evaluation of proposals on the basis of the
following 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 solicitation advised that the technical
capability and past performance factors, when combined, were significantly
more important than price. Offerors were required to submit technical
proposals which addressed how they would meet the project*s objectives and
contained sufficient technical data and performance specifications to
support their proposed hyperbaric design solution, including their
proposed equipment and components. RFP amend. 1, at 19-20. The
solicitation also advised that offerors whose offered equipment or
components exceeded the solicitation requirements would *be evaluated
based upon any added benefit* to the government. Id. at 19.
The agency received proposals from [DELETED] offerors, including HTI and
PCCI, by the August 1, 2003 extended closing date. A four-member
technical evaluation panel (TEP) from Brooks City-Base performed an
initial evaluation of technical proposals using a qualitative rating
system set forth in the source selection plan. Under each nonprice factor
and subfactor, the evaluators assigned an excellent rating using a
weighted variable of 1.0 to PCCI*s proposal and assigned a very good
rating with a weighted variable of 0.8 to HTI*s proposal.[3] Based on the
results of the initial evaluation of proposals, the agency concluded that
all [DELETED] proposals should be included in the competitive range.[4]
Agency Report (AR) exh. D, Price Negotiation Memorandum, at 6 (Sept. 19,
2003). The agency requested and received proposal revisions. The final
evaluation results were as follows:
+------------------------------------------------------------------------+
|Evaluation Factors |HTI |PCCI |
|------------------------------------------+--------------+--------------|
|1. Technical Capability (65 points) | | |
|------------------------------------------+--------------+--------------|
| |Suitability (30 points) |[DELETED] |[DELETED] |
| |----------------------------------+--------------+--------------|
| |Understanding (25 points) |[DELETED] |[DELETED] |
| |----------------------------------+--------------+--------------|
| |Quality (10 points) |[DELETED] |[DELETED] |
|------------------------------------------+--------------+--------------|
|2. Past Performance (15 points) | | |
|------------------------------------------+--------------+--------------|
| |Experience (10 points) |[DELETED] |[DELETED] |
| |----------------------------------+--------------+--------------|
| |Customer Satisfaction/ | | |
| | Testimonials (5 points) |[DELETED] |[DELETED] |
|------------------------------------------+--------------+--------------|
|Total Score (80 maximum points) |[DELETED] |[DELETED] |
|------------------------------------------+--------------+--------------|
|Total Price |[DELETED] |$1,387,452 |
+------------------------------------------------------------------------+
Id. at 2-3.
As indicated above, PCCI*s proposal was rated higher than HTI*s proposal
under the technical capability factor. This was attributed to the
evaluated advantages in PCCI*s design approach for Chamber 2 and the
state-of-the-art technology PCCI proposed for both chambers. In contrast,
HTI*s lower rating under this factor reflected the evaluators* judgment
that HTI*s design approach offered less significant strengths as compared
to PCCI*s design approach. In a detailed report to the contracting
officer, who served as the source selection official, the TEP chair
discussed the offerors* respective technical capability and past
performance ratings and recommended award to PCCI.
In relevant part, the TEP found:
All vendors met SOW requirements; however, based on both the technical
evaluation and past performance scores, it was determined that PCCI
clearly provided the Best Value proposal when considering the needs of the
[USAF] Hyperbaric Medicine Program.
The following were the factors, which gave PCCI higher technical scores
over the other two vendors:
a. PCCI offered the best cutting-edge technology with their new, square
chamber design. The following are some of the advantages of this concept:
. Space utilization of a square chamber is clearly an advantage,
since it eliminates most of the dead space found in cylindrical type
chambers. Proposals from HTI [DELETED] include cylindrical type chambers.
. Infection control and cleaning are improved, since the design
eliminates floor plates, thereby preventing bacterial growth under floor
plates. Additionally, it will be easier to eliminate water following fire
suppression activities. Both HTI [DELETED] proposals have floor plates.
. [DELETED]
. PCCI*s design reduces patient apprehension and claustrophobia,
because the interior and exterior design has a natural room environmental
quality compared to cylindrical chambers. Proposals from HTI [DELETED]
include cylindrical type chambers.
b. PCCI*s state-of-the-art automation system is exactly what the USAF
Hyperbaric Medicine Program has been searching for. [DELETED].
c. [DELETED].
PCCI*s proposal offers cutting-edge technology in the areas of chamber
design, automation, communications, patient safety and infection control,
which is unequaled by the other [DELETED] competitors, thereby receiving
higher scores than HTI [DELETED]. The total advantage that PCCI*s
proposal offers, clearly exceeds the monetary difference between the
vendors.
AR exh. D, Memorandum from TEP Chair to Contracting Officer, at 1-2
(Sept. 19, 2003).
The contracting officer reviewed the evaluation findings and determined
that PCCI*s proposal represented the best value to the government,
specifically concluding that there were significant discriminators between
the competing proposals. In making the award determination, the
contracting officer concurred with the TEP*s narrative findings concerning
the offerors* respective strengths and she concluded that PCCI*s technical
superiority warranted the payment of the [DELETED] price premium. Award
was made to PCCI on September 29. AR exh. D, Price Negotiation
Memorandum, at 1-6 (Sept. 19, 2003).
Following notice of the award and a debriefing, HTI protested the
propriety of the evaluation and award determination to our Office, in
response to which the agency determined to take corrective action. In
this regard, the agency decided to review and amend the solicitation, to
request and evaluate final proposal revisions, and to make a new source
selection decision. Our Office dismissed HTI*s protest on November 5,
based on the agency*s determination to take corrective action.
On November 12, the agency issued amendment No. 3 to clarify the announced
evaluation scheme because the solicitation failed to state the relative
importance of the evaluation factors, as required by FAR S: 15.304(d).[5]
Therefore, the agency reopened the competition to permit the offerors
whose proposals were included in the competitive range to submit final
revised proposals. RFP amend. 3, at 2. Neither HTI nor PCCI made any
technical revisions in their final proposals; however, HTI reduced its
total price [DELETED]. The agency performed various reevaluation
activities, including reviewing each final revised proposal and, as a
result, the technical capability and past performance ratings for HTI and
PCCI remained the same.
On December 8, the contracting officer again selected PCCI*s proposal as
representing the best value to the government. In documenting that
decision, the contracting officer determined that the quality of PCCI*s
hyperbaric solution still outweighed the evaluated price difference
between HTI and PCCI ([DELETED]). She concluded that the *impact of VA*s
corrective action, while bringing the procurement squarely in line with
the requirements of the FAR, ultimately had no effect on VA*s original
source selection decision and cost/technical tradeoff.* AR exh. C.2,
Addendum to Price Negotiation Memorandum, at 2 (Dec. 1, 2003). Consistent
with this conclusion, the contracting officer *incorporate[d] the
conclusions of the technical evaluators regarding the advantages of PCCI*s
product,* and determined that the added benefits offered by PCCI justified
its slightly higher price. Id. The VA then notified HTI that it had,
again, selected PCCI*s proposal for award and this protest followed.
After the protest was filed, the VA authorized continued performance of
the contract based on the urgent and compelling needs of the government.
DISCUSSION
HTI contends that the VA improperly and unequally evaluated the offerors*
proposals under the technical capability factor. HTI complains that the
agency disregarded PCCI*s noncompliance with the specifications and
downgraded or overlooked HTI*s proposal strengths. In its protest, HTI
points to individual solicitation requirements, and argues that strengths
were unequally assessed or makes comparisons between how various
requirements were evaluated and argues unequal treatment. In so doing,
HTI alleges that the evaluators inflated or otherwise impermissibly gave
PCCI
extra credit for industry standard capabilities, Protester*s Post-Hearing
Comments
at 12-16, and argues that PCCI*s unproven and potentially implausible
rectangular chamber design should not have been considered superior to
HTI*s cylindrical chamber, which the protester has successfully
manufactured in accordance with ASME and PVHO standards.[6] Id. at 2;
Protester*s Comments at 20-21.
Where an evaluation is challenged, our Office will not reevaluate
proposals but instead will examine the record to determine whether the
agency*s judgment was reasonable and consistent with the stated evaluation
criteria and applicable procurement statutes and regulations. Rome
Research Corp., B-291162,
Nov. 20, 2002, 2002 CPD P: 209 at 4; Lear Siegler Servs., Inc., B-280834,
B-280834.2, Nov. 25, 1998, 98-2 CPD P: 136 at 7. The fact that the
protester disagrees with the agency and believes its proposal should have
been rated higher than it was does not render the evaluation
unreasonable. Rome Research Corp., B-291162, supra. Our review of the
record, including the written proposals, the pleadings, and the testimony
taken during the hearing in this matter, shows that the agency*s
evaluation of HTI*s proposal under the technical capability factor was
reasonable and consistent with the RFP evaluation criteria.
The record shows that the proposals submitted by PCCI and HTI were
evaluated favorably by the VA. Specifically, the agency found that HTI*s
and PCCI*s proposals met the minimum requirements of the solicitation and
both firms demonstrated that their proposed hyperbaric chamber solutions
would meet the agency*s needs. AR exh. D, Memorandum from TEP Chair to
Contracting Officer, at 1-2 (Sept. 19, 2003); see, e.g., Tr. 151-55,
272-74. As illustrated by the examples discussed below, the agency
reasonably and even-handedly considered the offerors* particular design
approach against the performance characteristics in the solicitation in
assessing the strengths of each proposal under the technical capability
factor.
The first example concerns the offerors* design approach for the
replacement chamber. HTI proposed a cylindrical replacement chamber
whereas PCCI proposed a rectangular one. As indicated previously, the VA
performed a detailed comparison of the two designs, fully considering the
proposed benefits of each design, including those HTI alleges are superior
to PCCI*s, e.g., HTI*s larger chamber can accommodate more patients. AR
exh. D, Memorandum from TEP Chair to Contracting Officer. The VA provided
HTI credit for proposing a larger chamber than that required by the RFP;
however, as specified in the RFP, the agency also considered whether HTI*s
cylindrical chamber offered any additional benefits to the government and
noted other areas where HTI*s proposed cylindrical chamber was less
desirable than PCCI*s. In our view, the VA reasonably concluded that *the
space utilization of [the] square chamber [offered by PCCI], [DELETED] and
reduction of patient apprehension and claustrophobia, improved infection
control and elimination of bacteria growth* provided more desirable
benefits to the government. AR exh. C.2, Addendum to Price Negotiation
Memorandum, at 2. Although HTI disagrees with the agency*s judgment,
based on our review, we find that the agency*s assessments concerning the
relative benefits of a rectangular hyperbaric chamber were reasonable and
we have no basis to conclude that the evaluation of HTI*s and PCCI*s
design solutions was unfair or unreasonable.
Another example asserted by the protester of unequal evaluation pertains
to the evaluation of its proposed state-of-the-art FDA-approved automation
system. The RFP, as amended by a Q&A, put offerors on notice that the
touch-screen capability of the proposed central control console system
would be evaluated by the agency. While the protester argues that it
offered an FDA-approved automated system, the record shows that HTI
proposed an automated central control console system with a touch-button,
rather than a touch-screen, capability. HTI Initial Proposal, S: B.6. In
contrast, and as described above, PCCI*s central control console system,
[DELETED] was considered state-of-the-art and superior to a system with
touch-button capability. As a result, the agency did not view HTI*s
automated system as superior to that proposed by PCCI and we have no basis
to question this aspect of the evaluation.[7] In sum, we find no evidence
of unequal or unfair treatment in the record, but instead find the
agency*s evaluation was reasonable and consistent with the RFP*s
evaluation scheme.
The protester also alleges that the awardee*s proposal was noncompliant
with the RFP requirement that the replacement hyperbaric chamber be
designed and manufactured in accordance with ASME and PVHO standards. HTI
argues that PCCI*s proposal does not comply with these certification
requirements because neither PCCI nor its foreign-based subcontractors are
ASME accredited and none possesses the PVHO certification. Protester*s
Comments at 18-21. On this record, we cannot say that the agency*s
determination that PCCI*s proposal satisfied the ASME and PVHO standards
was unreasonable, given the particular requirements and the RFP*s
evaluation scheme. First, the RFP as amended called for the replacement
chamber to meet these requirements at the time of final inspection.
Second, since the record shows that the replacement chamber has not been
manufactured and installed, compliance with the ASME and PVHO requirements
reasonably could not be determined until the time of final inspection by
the agency; thus, it was not reasonable for HTI to read the RFP as
requiring compliance with these requirements as part of the proposal
submission. Third, PCCI did not take exception to the RFP*s ASME and PVHO
requirements; indeed, the record indicates that PCCI proposed a
rectangular hyperbaric chamber designed by its subcontractor, [DELETED],
in accordance with ASME and PVHO standards which will be manufactured by
PCCI*s subcontractor, [DELETED], an accredited ASME manufacturer. PCCI
Initial Proposal at 1-22. Similarly, we note that HTI*s proposal offered
nothing more than a commitment to design, manufacture, and install its
proposed replacement chamber in accordance with these ASME and PVHO
requirements. In short, we cannot conclude that PCCI*s proposal was
unacceptable in this regard; moreover, as the solicitation states, whether
PCCI*s proposed rectangular hyperbaric chamber will ultimately comply with
the stated ASME and PVHO requirements would be determined at the time of
final inspection.[8]
Finally, HTI challenges the price/technical tradeoff made by the
contracting officer in selecting PCCI*s higher-rated, higher-priced
proposal for award. The protester complains that its proposal should have
been selected on the basis of its lower evaluated price since, in the
protester*s view, the benefits offered by PCCI*s proposal were not worth
that proposal*s higher evaluated price.
Our review of an agency*s price/technical tradeoff decision is limited to
a determination of whether the tradeoff was reasonable and consistent with
the solicitation*s evaluation criteria. Southwest Marine, Inc.; American
Sys. Eng*g Corp., B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD P: 56 at
10. Award may be made to a firm that submitted a higher-rated,
higher-priced proposal where the decision is consistent with the
evaluation criteria and the agency reasonably determines that the
technical superiority of the higher-priced offer outweighs the price
difference. National Toxicology Labs., Inc., B-281074.2, Jan. 11, 1999,
99-1 CPD P: 5 at 7.
Here, the contemporaneous record evidences a thorough evaluation and
best-value analysis by the agency evaluators (who recommended award to
PCCI) which provided the contracting officer with a basis upon which to
weigh the relative merits of the offerors* proposals. AR exh. C.2,
Addendum to Price Negotiation Memorandum, at 2. Contrary to the
protester*s arguments, we find that the contracting officer*s decision was
reasonable and consistent with the evaluation criteria. That is, the
record shows that the contracting officer was well aware of the price
difference between the PCCI and HTI proposals, and that PCCI*s evaluated
price was slightly higher than that of HTI. Nevertheless, the contracting
officer found that PCCI*s higher proposal rating reflected a real
technical superiority that translated into added benefits to the
government in terms of space utilization, patient safety, patient comfort,
improved infection control, and cutting-edge technology such as its
central control console automation system. Consistent with the relative
importance of the evaluation criteria, under which technical capability
was more
important than price, the contracting officer found that PCCI*s technical
superiority was worth the additional price. Although HTI disagrees with
the contracting officer*s judgment, the protester has not shown it to be
unreasonable.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] Cites to the hearing transcript refer to the transcript of the hearing
that our Office conducted in connection with this protest.
[2] The July 15 Q&A included the following exchange:
Q: Request add FAR [Federal Acquisition Regulation] clauses that invoke
the Buy American Act. Give[n] the military nature of this solicitation
and small industry (only [DELETED] bidders in the first solicitation) it
is strongly requested to remain a USA procurement.
A: The Buy American Act will not be added to this solicitation. This is
a full and open requirement giving all vendors/companies the opportunity
to propose.
RFP amend. 1, Q&A No. 39 (July 15, 2003).
[3] As applicable here, the qualitative ratings used by the evaluators
were defined as:
Excellent (1.0): Proposal demonstrates a superior understanding of
requirement; response provides innovative, alternate approaches to
performing the work, including thorough identification of potential
problem areas and their solutions; procedures are effective and
comprehensive and demonstrate quality control; proposed personnel are
fully qualified; past experiences on similar projects were fully
successful; virtually assures success of work.
Very Good (0.8): Proposal demonstrates a clear understanding of the
requirement; response is complete and identifies some potential problems
and solutions; procedures are sound and include quality control; proposed
personnel are highly qualified; capable of successfully performing the
work.
AR exh. D, Source Selection Plan, at 6.
[4] [DELETED]
[5] Under the amended evaluation scheme, price became the second most
important factor but the technical capability and past performance
factors, when combined, still were significantly more important than
price. RFP amend. 3, at 2.
[6] Although we do not here specifically address all of HTI*s complaints
about the evaluation of proposals, we have considered them all and find
none of them has merit. This decision will address only the more
significant arguments.
[7] In this regard, HTI asserts that prior to establishing the competitive
range, the contracting officer sought clarifications from PCCI regarding
its proposal and argues that this communication constituted prejudicial
discussions since HTI was not afforded the opportunity to address the
agency*s concern regarding the touch-button capability of its FDA-approved
automation system. We will not consider this allegation because it was
raised more than 10 days after the protester received the documents upon
which it bases this protest ground and is therefore untimely. Bid Protest
Regulations, 4 C.F.R. S: 21.2(a)(2) (2003). However, we note that the
agency did not have a concern regarding the acceptability of HTI*s
proposed touch-button approach that would require clarification or
discussions. See Tr. at 297-98, 311-14, 459-60.
[8] It appears that the protester is concerned that the awardee is
subcontracting a significant portion of the contract work to foreign
companies. As noted previously, this solicitation did not restrict the
competition to domestic firms. RFP amend. 1, Q&A No. 39 (July 15, 2003).