TITLE: Apex Foot Health Industries, B-293088, January 23, 2004
BNUMBER: B-293088
DATE: January 23, 2004
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Apex Foot Health Industries, B-293088, January 23, 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: Apex Foot Health Industries
File: B-293088
Date: January 23, 2004
John G. Horan, Esq., and Jason A. Carey, Esq., McDermott, Will & Emery,
for the protester.
Maura C. Brown, 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
Agency*s decision to eliminate proposed diabetic socks from competition on
basis that the seams on the socks were too prominent was based on medical
judgments of evaluators with substantial expertise in the field; GAO will
not question such medical judgments where there is no showing that product
testing was unfairly administered.
DECISION
Apex Foot Health Industries protests the rejection of three different
diabetic socks it proposed in response to request for proposals (RFP) No.
797-NC-03-0024, issued by the Department of Veterans Affairs (VA) for
diabetic socks. VA evaluated the socks as medically unacceptable for
diabetic patients.
We deny the protest.
The RFP, issued as a small business set-aside on July 3, 2003,
contemplated the award of a fixed-price requirements contract for a base
year, with four 1-year options, for quantities of diabetic socks.
Offerors were required to submit product samples. 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, (listed in
descending order of importance). The specifications and evaluation
factors were developed by a *sock workgroup* within VA*s Prosthetic
Clinical Management Program. Award was to be made, without discussions,
to the responsible offeror whose offer conforming to the solicitation
would be most advantageous to the government, price and other factors
considered.
The RFP stated that the initial evaluation was to be *subjective,* with
*significant weight . . . given to actual performance of the socks during
an evaluation at the National Acquisition Center,* and noted that the
*first and most important evaluation will be of the socks seams.* [2] RFP
at 28. If the evaluation team determined that seams or creases of an
offered sock would cause pressure or irritate the diabetic foot, the sock
would be rejected without further evaluation.[3] Id.
The agency received 45 offers from 32 offerors, including the protester,
which submitted offers for seven different socks. The three-member
technical evaluation panel (TEP), which included two Doctors of Podiatry
and a Chief of Prosthetics trained as an orthotist, evaluated each sock by
visually inspecting them and then walking in them with shoes. AR, exh. 6,
Declaration of TEP Chairperson, at 2.
The TEP rejected three of Apex*s offered socks under the initial
evaluation based on the finding that they would cause pressure on or
irritate the diabetic foot.[4] Specifically, the TEP found that the seams
on the various socks were *prominent* or *somewhat prominent,* that the
knots at the ends of seams were *prominent* or *too prominent,* and that
the heel seams were *too prominent* or *somewhat prominent.* AR, exh. 10,
Technical Evaluation Score Sheets, at 2, 6, 10. After VA notified Apex
that the socks were rejected without further consideration, Apex filed an
agency-level protest. That protest was denied, and Apex then filed this
protest in our Office.
Apex argues that the agency improperly evaluated the three socks,
asserting that the socks have the feel of a seamless sock; they are
designed and manufactured without seams or creases that would cause
pressure on or irritation to the diabetic foot; [DELETED] and therefore no
raised seam, Protest at 1, 7; and there are no heel seams because the
material at the heel of the sock is *one continuous piece of fabric in
which the direction of the knitting changes to create the curve of the
sock around the heel.* Comments at 5. Apex further asserts that its
socks are designed by a team of podiatrists, orthotists, and pedorthists;
are constructed of special materials, including [DELETED], that cause the
socks to lie flat and smooth against the foot, minimizing bunching and
wrinkling; and that, as a result, its socks do not pressure or
irritate--but, rather, protect--diabetic feet. Id. at 5, 12; Protest at
8.
We have held that matters involving medical judgments and policies are
inappropriate for review under our bid protest function. GlaxoSmithKline,
B‑291822, Apr. 7, 2003, 2003 CPD P: 77 at 5. The scope of the
evaluation here, and the agency*s determination that certain of the
proposed diabetic socks will irritate the diabetic foot, and therefore not
meet the agency*s needs, involve such medical considerations. While Apex
asserts, for example, that the seams on Apex*s socks in fact are not *too
prominent,* and that the socks in fact will not cause an unacceptable
amount of irritation to the diabetic foot, these amount to disagreements
with VA*s medical judgment as to the amount of irritation a diabetic foot
can withstand. The testing here 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 find in favor of Apex, we
necessarily would have to adopt Apex*s judgments about its own socks and
reject as incorrect or unreasonable the medical judgments of these
experienced practitioners. Under the above standard, we will not question
such agency judgments.[5]
As for the approach used by the agency to evaluate the proposed socks, we
find it unobjectionable. The RFP did not set forth a scientific process
that would be used in testing offered socks; rather, as noted above, it
specifically advised offerors that a *subjective evaluation of the socks*
would be performed. RFP at 28. The agency reports--and there is no basis
for concluding otherwise--that all socks were evaluated using the same
testing procedure. Specifically, they were visually inspected, with
special attention given to the seams, and the evaluators then walked 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. There
is no indication that the agency applied different procedures or standards
in evaluating different socks, or that the agency*s methodology in testing
Apex*s socks was otherwise unfair. We conclude that, although Apex
questions the results of the testing, the evaluation was consistent with
the terms of the RFP.
Apex argues that the evaluation documentation is inadequate to support the
rejection of Apex*s socks, since it consists of only a score sheet for
each rejected sock, and conclusory statements that the socks possess, for
example, *prominent* or *somewhat prominent* seams or knots. Comments
at 1, 2, 9. The protester contends that the declaration of the TEP
chairperson, submitted with the agency report, does not *fill the void of
support for [the evaluation]* because it was prepared in response to the
protest and *simply quotes the Score Sheets.* Id. at 9-10. This argument
is without merit. An agency*s evaluation of proposals should be
documented in sufficient detail to allow for the review of the merits of a
protest. G&N, L.L.C., B‑285118 et al., July 19, 2000, 2000 CPD P: 3
at 6. While the contemporaneous evaluation materials are limited,
consisting of the evaluators* score sheets, they are sufficient to capture
the evaluators* conclusions regarding the socks in question; the score
sheets show that testing did occur and that, when tested, the three Apex
socks were irritating to the testers* feet. AR, Tab 10, Technical
Evaluation Score Sheets, at 1-2, 5-6, 9-10. Further, while we generally
accord greater weight to contemporaneous evaluation documentation, we will
consider all information provided to our Office in the course of a
protest, including post-protest explanations, so long as those
explanations are credible and consistent with the contemporaneous record.
NWT, Inc.; PharmChem Labs., Inc., B‑280988, B‑280988.2, Dec.
17, 1998, 98‑2 CPD P: 158 at 16. Although the chairperson*s
declaration was prepared in response to the protest, it provides further
explanation of the manner in which the
original evaluation was conducted--it does not merely quote the score
sheets--and thus is appropriate for consideration in our review. We
conclude that the evaluation is adequately documented.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[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] A prior solicitation, issued March 10, 2003, had called for *seamless*
socks. After several contractors contacted the agency to complain that it
was impossible to have a truly seamless sock, and after receiving
confirmation from VA*s doctors that this was the case, the agency canceled
the solicitation on May 28.
[3] The agency explains that no additional evaluation was necessary
because VA would not purchase a sock that would cause pressure or irritate
the diabetic foot; such a sock *may cause our veteran patients at risk for
limb threatening foot pathology due to sensory neuropathy and/or
peripheral vascular disease to be subjected to microtrauma from any
prominent area of the sock. This microtrauma could lead to skin
irritation, blister formation, tissue necrosis, wounds and/or ulcers,
infections and ultimately, in the worse case, gangrene.* AR, exh. 6,
Declaration of TEP Chairperson, at 1, 2-3.
[4] The agency initially rejected five of Apex*s socks, Protest, Tab G,
but following Apex*s protest, reexamined the socks and reversed its
position on two of them. These two socks will be further evaluated by the
agency and considered for award. AR, at 1, n.1. The protest concerns the
agency*s rejection of the remaining three socks.
[5] Although we will not make an independent determination of the
performance of an offeror*s product even where we will consider the
reasonableness of an agency*s product sample testing conclusions, Pride
Mobility Products Corp., B-291878, Apr. 8, 2003, 2003 CPD P: 80 at 2, we
did conduct a visual and tactile examination of Apex*s three rejected
samples (furnished by VA). This examination confirmed that,
notwithstanding the protester*s assertions to the contrary, the material
at the toe and heel of all three socks have detectable raised areas.