TITLE:  Ira Wiesenfeld & Associates, B-293632.3, June 21, 2004
BNUMBER:  B-293632.3
DATE:  June 21, 2004
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   Decision

    

    

   Matter of:Ira Wiesenfeld & Associates

   File: B-293632.3

    

   Date:              June 21, 2004

    

   Ira Wiesenfeld for the protester.

   Dennis Foley, Esq., Philip Kauffman, Esq., and Phillipa L. Anderson, Esq.,
Department of Veterans Affairs, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of agency*s rejection of proposal as technically unacceptable is
denied where record shows agency*s evaluation was reasonable and
consistent with solicitation terms and applicable procurement rules.

   DECISION

    

   Ira Wiesenfeld & Associates protests the agency*s rejection of its
proposal as technically unacceptable under solicitation No. 247-0170-04,
issued by the Department of Veterans Affairs (VA) for a narrow band radio
paging system.
    

   We deny the protest.

    

   This protest follows an earlier protest filed with our Office by
Wiesenfeld challenging the agency*s award of a sole-source contract to
meet its paging system requirements.  In that protest, Wiesenfeld alleged
that the agency failed to consider product information it had submitted in
response to the agency*s notice of the proposed sole-source award.  In
response to the protest, the agency agreed to furnish a copy of the
solicitation for the paging system to the protester, and to evaluate the
firm*s proposal.  Wiesenfeld subsequently withdrew the protest and
submitted a proposal to the agency for evaluation.

    

   The agency subsequently rejected the protester*s proposal as technically
unacceptable for failure to comply with mandatory technical requirements
for one of the items being sought, combination voice/alphanumeric pagers. 
In particular, the agency determined that the proposed pagers failed to
meet the solicitation*s requirement for National Telecommunications and
Information Administration (NTIA) approval, and that the protester had not
demonstrated that its proposed voice pagers also functioned in an
alphanumeric mode.[1]  This protest followed.

    

   The solicitation advised that all equipment requirements were salient,
minimum requirements, unless otherwise stated.  Solicitation at 23. 
Products submitted as *equal* to specified requirements were to meet the
salient physical, functional, or performance characteristics specified in
the solicitation.  Id. at 44.  Offerors were instructed that award of a
contract would be made to the responsible offeror whose offer complied
with the solicitation and was considered most advantageous to the agency. 
Id. at 57.

    

   The protester submitted its proposal by the scheduled closing time.  With
regard to the line item for combination voice/alphanumeric code pagers,
the protester*s proposal noted that it was offering a voice pager; the
protester described its offered product as an *equal product with superior
specifications.*  Wiesenfeld Proposal at 7-8.  The agency rejected the
proposal as technically unacceptable for offering a pager lacking both
NTIA approval and the required combination of voice and alphanumeric
capabilities.

    

   An offeror must affirmatively demonstrate by the terms of its proposal
that its offered product meets all of the solicitation*s material
requirements.  Working Alternatives, Inc., B‑276911, July 2, 1997,
97-2 CPD P: 2 at 4.  Any proposal that fails to conform to material terms
of the solicitation should be considered unacceptable and may not form the
basis for an award.  Gordon R.A. Fishman, B-257634.3, Nov. 9, 1995, 95-2
CPD P: 217 at 2.  In reviewing protests against allegedly improper
evaluations, or, as here, the rejection of a proposal based on the
agency*s evaluation, it is not our role to reevaluate proposals.  Rather,
our Office examines the record to determine whether the agency*s judgment
was reasonable, and in accord with the RFP criteria and applicable
procurement statutes and regulations.  Abt Assocs., Inc., B-237060.2,
Feb. 26, 1990, 90-1 CPD P: 223 at 4.  The protester*s mere disagreement
with the agency*s judgment does not establish that an evaluation, or
rejection, was unreasonable.  UNICCO Gov*t Servs., Inc., B-277658, Nov. 7,
1997, 97-2 CPD P: 134 at 7.

    

   Our review of the record confirms the reasonableness of the agency*s
evaluation and rejection of the Wiesenfeld proposal as failing to meet the
mandatory technical requirements for the combination voice/alphanumeric
code pager.  The protester simply has not demonstrated that the offered
unit functions in the required alphanumeric mode.   Rather, in its
comments on the agency*s report, the protester argues that the combination
voice/alphanumeric pagers required by the solicitation do not meet the
needs of most hospitals and that the performance of the combination unit
does not compare to its *stand-alone voice or stand-alone text pagers.* 
Comments, Apr. 26, 2004, at 2.  To the extent the protester is now
challenging the agency*s mandatory requirement for the combination pagers,
however, such challenge is untimely, as apparent solicitation
improprieties must be protested prior to the closing time for the receipt
of proposals.  Bid Protest Regulations, 4 C.F.R. S: 21.2(a)(1) (2004).

    

   Wiesenfeld also asserts that other contracting activities have considered
using its offered voice pagers to meet allegedly similar requirements.  As
the agency points out, however, each procurement stands on its own.  See
Discount Mach. & Equip., Inc., B-248321, July 22, 1992, 92-2 CPD P: 44 at
3, n.1.  Here, the solicitation is clear; the agency required combination
voice/alphanumeric pagers.  The protester*s proposed voice pagers failed
to comply with this material requirement.  Accordingly, we have no basis
to question the agency*s rejection of the firm*s proposal as technically
unacceptable.[2]

    

   The protest is denied.

    

   Anthony H. Gamboa

   General Counsel

    

    

    

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   [1] The voice/alphanumeric code pagers are for use in the agency*s medical
facilities* Code Blue Life Support Systems.

   [2] While the protester continues to challenge the agency*s determination
that its offered voice pagers are not NTIA approved, we need not consider
the matter further in light of the material noncompliance issue discussed
above, which provides an independent basis for the rejection of the
proposal as technically unacceptable.