TITLE:  Knit-Rite, Inc., B-293088.3, August 5, 2004
BNUMBER:  B-293088.3
DATE:  August 5, 2004
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    Decision

   A 

   A 

   Matter of:   Knit-Rite, Inc.

   A 

   File:            B-293088.3

   A 

   Date:              August 5, 2004

   A 

   David Taylor, Esq., Tighe Patton Armstrong Teasdale, for the protester.

   Maura C. Brown, Esq., Department  of Veterans Affairs, for the agency.

   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   A 

   1.  In procurement of socks for use by diabetic patients, where evaluation
was based on medical judgments of evaluators with substantial expertise in
the field, GAO will not question such medical judgments in the absence of
any showing that product testing was unfairly administered.

   A 

   2.  Agency's use of subjective, rather than objective, technical
evaluation methodology--the evaluators' ratings were based on their
findings from walking in the socks--was unobjectionable where approach was
consistent with solicitation plan, which specifically advised that *a
subjective evaluation of the socks* would be performed.

   DECISION

   A 

   Knit-Rite, Inc. protests the award of a contract to Southern Hosiery
Mills, Inc. under request for proposals (RFP) No. 797-NC-03-0024, issued
by the Department of Veterans Affairs (VA) for diabetic socks. Knita**Rite
challenges the technical evaluation and the award decision.

   A 

   We deny the protest.

   A 

   The RFP, issued as a small business set-aside, contemplated the award of a
fixeda**price requirements contract for a base year, with four 1-year
options, for quantities of diabetic socks.  Offerors were required to
submit product samples that were to be evaluated by experts in treating
VA's elderly diabetic population and other patients at risk of
limb-threatening foot problems.  The evaluation was to consist of an
initial determination of whether the offered items met the minimum
requirements and, for those found acceptable, an evaluation under three
factors--technical, price and quality/past performance (in descending
order of importance).  Award was to be made, without discussions, to the
offeror whose proposal would be most advantageous to the government, that
is, on a *best value* basis. 

   A 

   The agency received proposals from 32 offerors, including Knita**Rite and
Southern.  The technical evaluation panel (TEP), which included two
doctors of podiatry and a chief of prosthetics trained as an orthotist,
evaluated each proposed sock.  Agency Report (AR) at 5.  The TEP rejected
a significant number of socks in the initial evaluation and then evaluated
those remaining.  The final evaluation for Knita**Rite and Southern was as
follows:

   A 

   +------------------------------------------------------------------------+
|A                           |Knita**Rite          |Southern             |
|----------------------------+---------------------+---------------------|
|Technical                   |Fair                 |Acceptable           |
|----------------------------+---------------------+---------------------|
|Price                       |$3,080,000           |$1,572,200           |
|----------------------------+---------------------+---------------------|
|Past Performance            |Acceptable           |Acceptable           |
+------------------------------------------------------------------------+

   A 

   Prior to the agency's making an award determination, another offeror, Apex
Foot Health Industries, filed a protest with our Office challenging the
rejection of its offered socks.  The procurement was suspended until
issuance of our decision denying Apex's protest.  See Apex Foot Health
Indus., Ba**293088, Jan. 23, 2004, 2004 CPD PA 30.  After the resolution
of that protest, the contracting specialist reviewed the TEP's evaluations
and conducted a tradeoff analysis between Southern and each of the other
offerors, concluded that Southern's proposal represented the best value,
and recommended that Southern receive the award.  The contracting officer
agreed with the recommendation and awarded Southern the contract.  This
protest followed.[2]  

   A 

   Knita**Rite asserts that the technical evaluation and award decision were
flawed because the TEP used a subjective, rather than an objective,
technical evaluation methodology, and thus improperly concluded that its
sock was inferior to the awardee's.

   A 

   In reviewing a protest of an agency's evaluation of proposals and source
selection decision, our review ordinarily extends to determining whether
the agency acted reasonably and consistent with the terms of the
solicitation and applicable statutes and regulations.  United Def. LP,
B-286925.3 et al., Apr. 9, 2001, 2001 CPD PA 75 atA 10a**11.  However, we
have held that matters involving medical judgments and policies are
inappropriate for review under our bid protest function.  Apex Foot Health
Indus., supra, at 3; GlaxoSmithKline, Ba**291822, Apr. 7, 2003, 2003 CPD P
77 atA 5.  The scope of the evaluation here, and the agency's
determination that Knita**Rite's sock was, at best, overall fair in
meeting the stated requirements, involve such medical considerations.  The
evaluation testing was conducted by, and the evaluation conclusions were
those of, three evaluators with substantial expertise in the area:  the
TEP Chairperson, who is a podiatrist as well as a member of the Prosthetic
Clinical Management National Workgroup on Diabetic Socks; a chief of
prosthetics who was trained as an orthotist; and a podiatric physician. 
In order for our Office to agree with Knita**Rite that its sock was
superior to Southern's, we necessarily would have to adopt Knita**Rite's
judgments about its own sock and reject as incorrect or unreasonable the
medical judgment--i.e., that Knit-Rite's sock is more likely than
Southern's to cause irritation to the diabetic foot--of these experienced
practitioners.  Under the above standard, we will not question such agency
judgments.[3]

   A 

   As for Knit-Rite's challenge to the agency's technical evaluation
methodology, we find that the methodology was reasonable.  Indeed, we
already held--in Apex Foot Health Indus., supra--that the agency's
evaluation methodology under this RFP was reasonable.  Apex objected
there--as Knita**Rite objects here--to the subjective nature of the
evaluation.  We rejected this argument, noting that, while the evaluation
was subjective, this is what the RFP provided for; the RFP did not state
that an objective, scientific process would be used in testing offered
socks, but that a *subjective evaluation of the socks* would be performed.
[4]  RFP at 28.  The evaluation consisted of the evaluators visually
inspecting the socks, with special attention given to the seams, and then
walking in the socks, with shoes, on carpeted and concrete floors, for
approximately 10 minutes.  The evaluators wore shoes *to simulate actual
usage and to assist in determining whether pressure was placed on the foot
from any seam or crease.*  AR, exh. 6, Declaration of TEP Chairperson, at
2.  It remains our view that the agency's methodology was reasonable and
consistent with the evaluation scheme set forth in the RFP.

   A 

   Knita**Rite asserts that the evaluation was flawed because the TEP failed
to take into account the protester's proposal submissions attesting to the
superior attributes of its sock.[5]  Comments at 4-5.  This assertion is
without merit.  The TEP reviewed all of Knita**Rite's technical
submissions, but relied on wearing the socks as a more effective way of
evaluating them.  Supplemental Contracting Officer's Statement at 2. 
Further, while Knita**Rite asserts, for example, that its sock is the only
seamless sock available, and that the agency failed to properly credit
this in the evaluation, there was no requirement that the socks be
seamless, nor did the RFP provide for extra credit for such an attribute. 

   A 

   The protest is denied.

   A 

   Anthony H. Gamboa

   General Counsel

   A 

   ------------------------

   [1] The solicitation defined a diabetic sock as *hosiery specifically
designed to reduce pressure or friction to the foot.  They should be
devoid of large seams or creases that could impart clinically significant
pressure to an insensitive foot and should be loose fitting proximally, as
not to restrict circulation.*  RFP at 4.

   [2] Knita**Rite raised numerous issues in its submissions to our Office. 
We have considered them all and find that none has merit.  This decision
addresses the principal issues raised. 

   [3] In any case, we would have no objection to the evaluators' conclusions
in this case.  The evaluators rated Knita**Rite's sock as fair overall
based on scores of fair under the areas of seams and comfort; acceptable
under the foot pressure and fit areas; good under the lack of restriction
area; and failed under the ambulation area due to its inability to stay up
during ambulation.  TEP Report, AR Tab 11.  The TEP specifically noted as
a weakness under several evaluation areas that the sock *slid down leg
after only a few strides on all evaluators,* and that the sock bunched up
in the shoe when it slid down resulting in *significant irritation* on one
evaluator's foot.  AR Tab 11 atA 2-4.  In view of the protester's sock's
failure to meet the ambulation test and the importance of avoiding foot
irritation, there was nothing objectionable in the evaluators' conclusion
that Knit-Rite's sock warranted a rating of fair.

   [4] Knita**Rite's additional assertions, that objective testing equipment
is superior and should have been used, are untimely; protests of alleged
solicitation improprieties must be raised prior to the closing time for
receipt of proposals.  Bid Protest Regulations, 4 C.F.R. SA 21.2(a)(1)
(2004).

   [5] In a related argument, Knit-Rite asserts that the agency failed to
contact its past performance references and failed to seek information
about the performance of its socks.  This argument is without merit.  The
evaluation record, as supplemented by various declarations, shows that the
agency not only contacted all of the protester's references, but that the
past performance survey included a question on product quality under which
Knita**Rite received uniformly positive evaluations.