TITLE:  Williamson County Ambulance Service, Inc., B-293811.5; B-293811.6; B-293811.7, December 15, 2004
BNUMBER:  B-293811.5; B-293811.6; B-293811.7
DATE:  December 15, 2004

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   Decision

   Matter of:   Williamson County Ambulance Service, Inc.

   File:            B-293811.5; B-293811.6; B-293811.7

   Date: December 15, 2004

   Lawrence J. Sklute, Esq., Sklute & Associates, for the protester.

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

   Sharon L. Larkin, Esq., and Guy R. Pietrovito, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1.  Protest challenging technical and past performance evaluation of
proposals for ambulance services is denied where agency reasonably
evaluated proposals consistent with evaluation criteria and record
otherwise supports the agency's source selection decision.

   2.  Protest asserting a conflict of interest because evaluator's daughter
now works for awardee is denied, where daughter did not seek employment
until after evaluation had been completed, and the source selection
official had no knowledge of this employment until after award.

   DECISION

   Williamson County Ambulance Service, Inc. protests the award of three
contracts to MercyA Regional Emergency Health Services under request for
proposals (RFP) No. V15-04-0026, issued by the Department of Veterans
Affairs (VA), for ambulance services at various locations in Illinois,
Kentucky, and Indiana.  Williamson challenges the agency's evaluation of
proposals and source selection decision.

   We deny the protest.

   BACKGROUND

   The RFP sought proposals to provide ambulance services for VA hospitals in
five locations:  Marion, Illinois; Effingham, Illinois; Mt. Vernon,
Illinois; Paducah, Kentucky; and Evansville, Indiana.  Firms were invited
to submit proposals for any or all of these areas.  The RFP provided for
the award of a fixed-unit-price contract for each geographic area, for a
base year with 4 option years.  Awards were to be made on a "best value"
basis, considering technical, past performance, and price.

   The RFP stated that the technical and past performance factors, when
combined, were approximately equal to price.  The technical subfactors,
listed in descending order of importance, were personnel qualifications,
operational organization, and vehicle fleet management.  The past
performance subfactors, which were equally weighted, were quality of past
work performance, timeliness of past performance, and customer
satisfaction.  RFP amend. 1, P 10.

   The statement of work set forth a number of service requirements.  For
example, calls for routine or non-emergency same-day service required that
service be provided within 45 minutes of the call, and for next-day or
"future time" calls, service was to be provided within 30 minutes of the
planned time.  RFP amend. 1, PP 5-6.  The contractor was also required to
provide a minimum number of ambulances for each service area for which it
submitted a proposal--that is, threeA vehicles were required for Marion,
one each for Effingham, Mt. Vernon, and Paducah, and two for Evansville. 
RFPA atA 45.

   In their technical proposals, offerors were required to provide:

   [a] copy of the Job Description; a current, completed Competence
Assessment Checklist; a current performance evaluation[;] and listing of
relevant continuing education for the last two years for each Contractor
employee who is proposed to provide services under a contract resulting
from this solicitation.

   RFP at 71.  In addition, offerors were to provide:

   copies of licenses/certificates and list recent related experience,
training, specialized experience and personnel qualifications of
Dispatcher(s) and [Emergency Medical Technicians (EMTs)],
Paramedics/Nurses proposed to perform work on this contract.  Information
will include documentation fully describing the make of vehicle, model,
and year of vehicles to be used, location of the facilities from which
they will be dispatched and maintained, and information as to the metering
devices or methods contractor proposes to use in determining mileage.

   RFP at 72.

   Mercy submitted an offer to provide ambulance services for all five
geographical areas identified in the RFP.  Williamson submitted an offer
only for Marion, Mt. Vernon, and Paducah.  Award was made to Mercy for
all five service areas, and Williamson protested to our Office
(B-293811.1, B-293811.2, B.293811.3).  The agency took corrective action
and reopened discussions with both offerors.  We dismissed the protests as
academic.  See Williamson Co. Ambulance Serv., Inc., B-293811 et al.,
May 3, 2004. 

   During the subsequent discussions, Williamson was advised that its
proposal "did not contain employee performance evaluations" and "failed to
demonstrate employees' continuing education and training."  Williamson was
also informed that two past performance references "noted concerns with
understaffing, equipment problems, poor response times, poor
communications and poor overall appearance," while a third reported
"problems with late pickups, vehicle operations, driver operations and
failure to follow clear direction."  Agency Report (AR), Tab 30, VA
Discussions Letter to Williamson, at 1-2. 

   Final proposal revisions (FPR) were received from both offerors. 
Williamson's FPR included, among other things, a 3-page memorandum
responding to the agency's past performance concerns.  This memorandum
also responded to detailed past performance criticisms that had been
released to the protester in redacted form during the development of the
previous protests.  FPRs were evaluated by the agency's technical
evaluation team on June 10, 2004.  The contracting officer reviewed the
technical team's evaluation results and evaluated past performance. 

   The contracting officer (who was also the source selection authority)
found Mercy's FPR to be superior to Williamson's.  Among other advantages,
the contracting officer noted that some of Mercy's EMTs possessed
"specialized experience" with administering heparin and nitroglycerin
intravenous medication, and that Mercy provided continuing education that
was "in addition" to what was required by the states.  The contracting
officer also noted that Mercy had "documented evidence of acceptable past
performance," would be adding five new ambulances to its existing fleet,
and would be opening another facility in Herrin, Illinois, to provide
quicker service to the Veterans Administration Medical Center (VAMC) in
Marion.  AR, TabA 19, Price Negotiation Memorandum, at 5-7.

   With regard to Williamson's FPR, the contracting officer noted that the
firm provided the required vehicle information and a satisfactory
operation plan.  However, she found Williamson's personnel qualifications
to be "deficient" because "no performance evaluations were provided" and
continuing education certificates were missing for some employees.  In
addition, the contracting officer noted that "[c]ustomer [s]ervice and
past performance continue to be an area of concern."  Id. at 4-5.  The
contracting officer recognized that Williamson had submitted letters of
recommendation and had "acceptable past performance" with other
facilities, but found that this did not overcome documented unacceptable
performance by Williamson for VAMC Marion under a contract that expired in
2002.[1]  Williamson's poor performance under the Marion contract, the
contracting officer found, "relate[d] directly to patient care" and
included such issues as "untimely response, substandard vehicle
conditions, staff not professionally dressed[,] and patient transport." 
Id. at 5, 7.   

   On September 3, the contracting officer awarded contracts to Mercy for
four of the five service areas.  The agency determined that the two
offerors (Mercy and Williamson) that submitted offers for Paducah could
not meet the response time requirement for this area, and thus the agency
decided to withhold award, amend the solicitation to extend the response
time, and seek final proposals from the offerors that had previously
submitted proposals for this area.  Although Mercy also could not meet the
response time requirement for Evansville (which was an area for which
Williamson did not compete), the agency did not amend the solicitation and
reopen competition, but made award to the firm based on a relaxed response
time of 120A minutes because no other contractor had submitted a proposal
for this area.  With regard to the Marion area for which Mercy and
Williamson competed, the agency found Williamson's FPR to be less
expensive than Mercy's.  However, the contracting officer determined that
the extra cost associated with Mercy's technically superior proposal was
warranted because "direct patient care is concerned."  With regard to Mt.
Vernon, Mercy's FPR was selected because it was both technically superior
and lower priced than Williamson's.[2]  Id. at 7-8.      

   PROTEST

   After receiving notice of award, Williamson protested the award of the
Marion and Mt. Vernon contracts, alleging numerous evaluation challenges
to both offerors' proposals under the technical and past performance
criteria.  After receipt of the agency report, Williamson raised new
protest grounds, including that one of the evaluators had an impermissible
personal conflict of interest and that the agency improperly relaxed the
response time requirement for Evansville without amending the
solicitation.[3] 

   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 stated evaluation
criteria and applicable statutes and regulations.  U.S. Facilities, Inc.,
B-293029, B-293029.2, Jan. 16, 2004, 2004 CPD P 17 at 5.  In this regard,
it is an offeror's obligation to submit an adequately written proposal for
the agency to evaluate.  United Def. LP, B-286925.3 et al., Apr. 9, 2001,
2001 CPD P 75 at 19.

   Based on our review of the record, which included multiple submissions
from the parties and a hearing conducted by our Office, we find each of
the numerous protest grounds raised by Williamson to be without merit.  We
discuss a few of the more significant issues below.

   TECHNICAL EVALUATION

   Williamson challenges the evaluation of its proposal under the technical
factor.  For example, under the personnel qualifications subfactor,
Williamson asserts that the proposal was unreasonably downgraded because
it lacked performance evaluations.  Williamson contends that the firm
submitted "Comprehensive Knowledge and Skills Testing" checklists with
cumulative scores for its employees, which should have been viewed as
performance evaluations.  However, these testing checklists show only that
the employees completed and have been tested for certain skill sets.  The
RFP required both a "Competence Assessment Checklist," such as this, and
"a current performance evaluation" for each employee.  RFP atA 71.  Given
that Williamson provided only the checklists, and not performance
evaluations, we find the agency's assessment to be reasonable.

   Williamson also complains that the agency unreasonably assessed a
deficiency for not providing continuing education documents for all of its
proposed employees.  In this regard, it contends it provided continuing
education documentation for all of its employees except for two new
employees, because those individuals were newly licensed and had not yet
been required to complete any continuing education training.  However,
Williamson's proposal does not make this clear and, given its obligation
to submit an adequately written proposal, we find no error in the agency's
assessment of a deficiency here.[4]

   Williamson also challenges the evaluation of Mercy's proposal under the
technical criteria.  For example, it asserts that experience in
administering heparin and nitroglycerin is not specialized and thus
Mercy's proposal should not have been considered more favorably than
Williamson's in this regard.  However, the record demonstrates that
administration of heparin and nitroglycerin intravenous medicine by EMTs
requires special state-approved training, and that Mercy's proposal
evidences that some of its EMTs have completed this training, while
Williamson's proposal does not.  Based on our review of the record, we
find consideration of this specialized experience to be a reasonable
discriminator between the proposals.

   Williamson also contends that Mercy's proposal lacked the requisite
vehicle licenses, that its ambulances were in poor condition, and that
Mercy "misrepresented" to the agency that it had acquired five new
ambulances.  However, the agency found, and the record confirms, that
Mercy provided all of the required vehicle information, including licenses
and maintenance information.  The record also shows that Mercy was in the
process of leasing five new ambulances at the time the competition was
being conducted, and, although some of these leases may have fallen
through after contract award, we find no evidence in the record of
misrepresentation.  In any event, the agency reasonably concluded that
Mercy already had a sufficient number of ambulances to perform the awarded
contracts, even without the fiveA additional ambulances.  Accordingly, we
find no error in the evaluation of Mercy's proposal.

   Williamson also complains that offerors were treated disparately.  For
example, with regard to the Marion effort, Williamson argues that Mercy
was credited for its plan to open a facility in Herrin, Illinois, which
the agency found would allow Mercy to provide faster service than from its
Benton, Illinois facility, but that Williamson was not credited for
providing "the fastest" service from its facility located in Marion.  Even
if we were to find that the agency erred in its evaluation of facility
location, Williamson has not shown that it was prejudiced as a result. 
Our Office will not sustain a protest unless the protester demonstrates
that but for the agency's action, it would have had a substantial chance
of receiving award.  McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD
P 54 atA 3; see Statistica, Inc. v. Christopher, 103 F.3d 1557, 1581 (Fed.
Cir. 1996).  As the agency explains, and the record confirms, the
discriminating factor for award was Williamson's poor past performance,
not the location of the offerors' facilities.[5]  Tr. atA 316, 327, 332. 

   PAST PERFORMANCE EVALUATION

   Williamson protests that the agency unreasonably evaluated its past
performance.  For example, it complains that the agency failed to contact
the administrative contracting officer (ACO) listed by the firm as a
reference for its prior Marion contract, and that the agency improperly
considered the firm's past performance during the "open market" period
that followed the expiration of this contract in 2002.  It also complains
that the agency failed to consider Williamson's explanations concerning
past performance incidents that had been raised during the development of
the previous protests and during discussions here. 

   Based on our review of the record, we find reasonable the agency's
evaluation of Williamson's past performance.  The record shows numerous
incidents of poor performance for the VAMC Marion that occurred before and
after the expiration of Williamson's contract in 2002.  For example, the
record notes incidents of late "pick-ups," vehicles without working
radios, vehicles smelling of exhaust fumes, and life support equipment
batteries being "dead."  It also reveals incidents where Williamson
refused to transport patients, or failed to follow instructions, and
contains complaints of irresponsible driving and unprofessional dress. 
Contracting Officer's Statement (Oct. 7, 2004) at 1-2; AR, Tab 31, Past
Performance Documents.   

   Williamson had an opportunity to address these concerns, which were
generally revealed to the company during discussions and specifically
revealed during the development of the previous protests, but the firm's
responses, which the agency fully considered, did not alleviate the
agency's concerns.  Williamson reiterates those responses here, but
although it disagrees with the agency's assessment, Williamson has not
shown the agency's judgment to be unreasonable.  See UNICCO Govt. Servs.,
Inc., B-277658, Nov. 7, 1997, 97-2 CPD P 134 at 7.

   We also find no error in the agency's failure to contact the ACO of
Williamson's prior Marion contract.  An agency is not required to contact
each and every reference listed by an offeror in its proposal.  Roca Mgmt.
Educ. & Training, Inc., B-293067, Jan. 15, 2004, 2004 CPD P 28 at 3.  The
agency explains here that during the time of the evaluation, the ACO was
on medical leave and could not be reached.  The agency instead contacted
the contracting officer's technical representative, who had worked with
Williamson for 3 years, and he reported that Williamson's performance was
"poor at best" under Williamson's Marion contract.  Although Williamson
asserts that the ACO would have given a more favorable report, the record
does not support this.  InA fact, the record contains a letter to
Williamson from the ACO, and several letters to Williamson from a
different contracting officer, complaining of performance issues during
the contract period.  E.g., AR, Tab  33, Past Performance Documents, exhs.
1, 3, 5, 8; see also exh. 7 (internal agency e-mails reflecting ACO's
involvement in addressing performance issues with Williamson).

   We also reject Williamson's argument that the agency should not have
considered the firm's performance during the post-contract, or "open
market," period.  This work was for the same services, at the same
locations, as is required under the RFP.  To the extent that Williamson
complains that the "open market" service is smaller in magnitude and
scope, its argument is inconsistent with the statement of its president
that, during the "open market" period, the company responded to a similar
volume of calls as is required under the RFP.  Declaration of Williamson's
President (Nov. 14, 2004) P 4.

   Williamson also complains that the agency ignored instances of Mercy's
poor past performance for several hospitals in and around the contract
areas.  Williamson raised these issues during the previous protests, and
these concerns were raised with Mercy during discussions.  According to
the agency, Mercy successfully refuted Williamson's contentions or
adequately responded to the issues, and also provided letters of
recommendations, which demonstrated to the agency that Mercy's performance
was satisfactory.  In addition, Williamson contends that the agency
ignored instances of Mercy's untimely performance during the "open market"
period (and thus treated offerors disparately).  The contracting officer,
however, was not aware of any performance issues with Mercy during this
time, and the only reports that she received (which were oral) indicated
that Mercy's performance was "good."  Tr. atA 411; see also Tr. 377-78. 
Furthermore, the agency explains that, because the companies are not bound
by contract during the "open market" period, the hospital does not
routinely track their response times, and neither offeror was penalized
for untimely performance during this period.  Tr. at 344-48, 388.

   In sum, we find that agency's evaluation of both offerors' past
performance to be reasonable and supported by the record.

   CONFLICT OF INTEREST

   Williamson alleges that the evaluation was tainted because the daughter of
one of the technical evaluators now works for Mercy as an EMT.  However,
the record shows that the daughter did not seek employment with Mercy
until June 15, 2004, which was 5 days after the technical team had
completed its evaluation and submitted its results to the contracting
officer.  The evaluator testified that he provided no further input into
the source selection after he completed his evaluation on June 10, and
furthermore, he did not even know that his daughter had applied for
employment until after she began working for Mercy in AugustA 2004.  Tr.
at 122, 124, 132.  Although award was not made to Mercy until September 3,
the contracting officer asserts that she had no knowledge that the
evaluator's daughter worked for Mercy until after award was made.  Tr. at
246.  On these facts, we find no evidence that the award was tainted by a
conflict of interest.

   EVANSVILLE CONTRACT

   Finally, Williamson argues that the agency relaxed the response time
requirement for the Evansville contract without amending the RFP to allow
other potential offerors to respond.  Citing FAR S 15.206(e),[6] the
protester contends that relaxing the time requirement from 30/45 minutes
as stated in the RFP, to 120 minutes as stated in Mercy's proposal, is so
substantial that the agency was required to amend the RFP and reopen
competition with the new requirement.  Williamson asserts that it would
have submitted a proposal had it known the response time requirement was
going to be relaxed.  Declaration of Williamson's President (Oct. 27,
2004) P 3.

   We dismiss this protest ground as untimely.  During the development of the
previous protests, Williamson's counsel was advised that Mercy's proposal
for the Evansville and Paducah areas took exception to the response time
requirements.   Williamson protested the Paducah contract, but not the
Evansville one, on this basis.[7]  In filing its initial protest here,
Williamson still did not challenge award of the Evansville contract, even
though it had no reason to expect that Mercy, the sole offeror for that
area, had changed its proposal to respond within the time requirement.  It
was not until filing its comments in response to the agency report that
Williamson first raised the allegation of relaxed requirements. 

   In order for our Office to meaningfully consider protest allegations, our
Bid Protest Regulations require that protest issues such as these be
presented within 10A days after the basis for protest is known, or should
have been known. 4 C.F.R. SA 21.2(a)(2)A (2004).  Our protest process does
not contemplate consideration of a protester's piecemeal presentation of
arguments that should have and could have been pursued much earlier in the
protest process.  See Comprehensive Health Servs., Inc., B-292858.3 et
al., Apr. 27, 2004, 2004 CPD P 165 at 8 n.4.  Because Williamson had
sufficient information to question the award of the contract for
Evansville in its initial protest filing here, its failure to raise the
grounds until its comments renders its protest ground untimely. 

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] After Williamson's contract expired in October of 2002, VAMC Marion
has been procuring ambulance services on an "open market" basis--that is,
purchasing services on a trip-by-trip basis from available vendors.  Both
Mercy and Williamson have been providing ambulance services during the
"open market" period.  The contracting officer asserts that she was
unaware of any adverse performance for Mercy during this "open market"
time period, Hearing Transcript (Tr.) at 411, but received numerous
reports of Williamson's poor performance during this time period, which
she considered during the evaluation.  AR, Tab 31, Past Performance
Documents.      

   [2] Mercy's proposed price (for the base and option years) for Marion and
Mt. Vernon was $5,947,038.19 and $77,071.25, respectively.  Williamson's
price for these areas was $5,734,968.00 and $90,060.00.  AR, Tab 19, Price
Negotiation Memorandum, at 2.

   [3] Williamson also abandoned a number of its protest arguments (e.g.,
that the agency failed to hold discussions with the firm concerning
adverse past performance, and that Mercy's proposal was ineligible for
award because one of its facilities was, at least temporarily, shut down)
when Williamson failed to respond in its comments after the agency
addressed these issues in its agency report.  See Planning Sys., Inc.,
B-292312, July 29, 2003, 2004 CPD P 83 at 6.

   [4] Williamson also complains that the agency downgraded its proposal for
omitted EMT licenses, but the contemporaneous record does not show that
Williamson's proposal was assessed a weakness for this issue.  See AR, Tab
19, Price Negotiation Memorandum, 4-5, 7; Tabs 21-22, Technical Evaluation
Summaries.

   [5] Williamson also contends that Mercy's proposal is technically
unacceptable because the firm was not properly registered in the Central
Contractor Registration (CCR) database.  The record shows, however, that
Mercy is registered in the CCR database under its corporate name and
address.  See AR, Tab 16, Mercy CCR Registration, which stated the
awardee's status as "active in CCR; Registration valid until 03/04/2005." 
Although Williamson has identified a Data Universal Numbering System
(DUNS) number for another of Mercy's office addresses (not its corporate
address) that is not in the CCR database, Mercy's proposal was submitted
in the firm's corporate name with its corporate address, which is the same
name and address registered in the CCR database.  See AR, Tab 28, Mercy
Technical Proposal.  We find that Mercy was properly registered in the CCR
database prior to award as provided for by Federal Acquisition Regulation
(FAR) SA 4.1102(a).

   [6] FAR S 15.206(e) states:

   If, in the judgment of the contracting officer, based on market research
or otherwise, an amendment proposed for issuance after offers have been
received is so substantial as to exceed what prospective offerors
reasonably could have anticipated, so that additional sources likely would
have submitted offers had the substance of the amendment been known to
them, the contracting officer shall cancel the original solicitation and
issue a new one, regardless of the stage of the acquisition.

   [7] Williamson expressed no interest in performing the Evansville contract
during the previous protests.
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