TITLE:  CliniComp, International, B-294059; B-294059.2, July 26, 2004
BNUMBER:  B-294059; B-294059.2
DATE:  July 26, 2004
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   Decision

   Matter of:   CliniComp, International

   File:            B-294059; B-294059.2

   Date:              July 26, 2004

   L. James D*Agostino, Esq., Richard L. Moorhouse, Esq., David T. Hickey,
Esq., and Natalia W. Geren, Esq., Greenberg Traurig, for the protester.

   Judith A. Bonner, Esq., General Services Administtration, for the agency.

   Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester*s contention that its proposal was improperly excluded from the
competitive range is denied where the decision to exclude the proposal
from further consideration was based on findings that the proposal was
technically unacceptable, and where the protester has not shown that those
findings were unreasonable or inconsistent with stated evaluation
criteria.

   DECISION

   CliniComp, International (CCI) protests the exclusion of its proposal from
the competitive range under request for proposals (RFP) No. GS03T03R0022,
issued by the General Services Administration (GSA) for commercial
off-the-shelf pharmacy software (abbreviated in the record as RxCOTS) for
the Department of Defense*s (DOD) TRICARE Management Activity, with
separate options for purchase by the Department of Veterans Affairs (VA)
and the United States Coast Guard.  CCI argues that its exclusion from the
competitive range was improper because the agency reached unreasonable
conclusions about several technical issues, misevaluated its past
performance, and gave an unfair competitive advantage to a company that
had participated in an earlier feasibility study.

   We deny the protest.

   The RFP here was issued on November 12, 2003, and sought offers of
commercial off-the-shelf software to be integrated with an existing
TRICARE medical software system called the Composite Health Care System II
(CHCS II), which currently provides pharmacy capabilities for DOD.  DOD
and GSA anticipate that the RxCOTS product purchased here will provide a
single pharmacy system for all of DOD that will replace the multiple
stand-alone systems currently in operation. 

   The RFP anticipated award of a fixed-price
indefinite-delivery/indefinite-quantity contract, for a 1-year base period
followed by up to nine 1-year options, to the offeror whose proposal
presents the best value after evaluation in accordance with the stated
factors.  RFP, amend. 6, at 130.  The stated technical evaluation factors
were:  technical approach, past performance, management approach,
corporate experience, and personnel resources.  The combined technical
evaluation factors were considered *significantly more important than
price.*  Id. at 131.

   Four firms, including the protester, submitted proposals by the due date
of
January 26, 2004, and all four proposals were evaluated by a technical
evaluation team (TET).  At the conclusion of the initial evaluation, the
TET provided, by letter dated March 9, a nine-page analysis of perceived
weaknesses or deficiencies in CCI*s proposal; this analysis identified 42
separate areas where the proposal either lacked sufficient information, or
was unacceptable as written.  Agency Report (AR), Tab 12.

   On March 17 and 19, the agency conducted negotiations with CCI, and the
company was invited to submit a revised proposal, which it did on March
26.

   Upon evaluation of CCI*s revised proposal, the agency concluded that the
proposal remained unacceptable in three technical areas, as well as in the
area of past performance, and offered an extremely high price in
comparison with other offers.  By letter dated April 29, GSA advised CCI
that its proposal was being excluded from the competitive range.  AR, Tab
21.  This protest followed.

   In challenging its exclusion from the competitive range, CCI argues that
the agency reached unreasonable conclusions about its technical approach
and past performance, and contends that the agency provided an unfair
competitive advantage to an offeror who had participated in an earlier
feasibility study. 

   The determination of whether a proposal is in the competitive range is
principally a matter within the reasonable exercise of discretion of the
procuring agency.  In reviewing an agency*s evaluation of proposals and
subsequent competitive range determination, we will not evaluate the
proposals anew in order to make our own determination as to their
acceptability or relative merits; rather, we will examine the record to
determine whether the documented evaluation was fair, reasonable, and
consistent with the evaluation criteria.  Ervin & Assocs., Inc., B-280993,
Dec.A 17,A 1998, 98-2 CPD P 151 at 3.  As with any evaluation review, our
chief concern is whether the record supports the evaluators* conclusions. 
Innovative Logistics Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD
P 144 at 9.

   With respect to the three technical areas where its proposal was deemed
unacceptable, CCI mounts a detailed challenge in each area.  We have
reviewed CCI*s arguments in each of these areas, and the agency*s
responses--as well as the underlying record--and we find no basis for
concluding that any of the agency*s evaluation assessments were
unreasonable.  We set forth below, as an example, a discussion of one of
the areas where CCI*s proposal was found unacceptable. 

   One of the most important technical requirements in this solicitation was
that each offeror*s commercially-available software use an Oracle
database.  See RFP, amend.A 5, at 91 (S C.4.7.1).[1]  In this regard, the
RFP expressly identified gradations of importance for the technical
requirements.  Specifically, the RFP identified both functional
requirements (SA C.4.6) and systems requirements (SA C.4.7) for the
software, and divided both the functional and systems requirements into
three groups, with Group I being more important than Group II, and Group
II being more important than Group III.  In addition to these groupings,
the RFP identified certain requirements--spread across the groups--as
critical.  Critical requirements were identified on the solicitation*s
Requirements Overview Form, referenced in section J (RFP, amend. 5, at
118) as Attachment 1 to the solicitation.[2]  The requirement that each
offeror*s RxCOTS software use an Oracle database was identified as a Group
I functional requirement, and as a critical requirement on the
Requirements Overview Form.

   CCI*s initial proposal stated that its product *supports Oracle RDBMS
version 9i through a CORBA interface,* AR, Tab 9, at 65, and also stated
that the Oracle release date for its product was March 31.  These
statements led the evaluators to conclude that CCI*s proposal was
inconsistent about whether or not it met the requirement.  As a result,
the agency advised CCI of the perceived inconsistency, and asked the
company what database its commercially available product was using as of
the January 26 proposal due date.  AR, Tab 12, attach. at 6. 

   In answer, CCI*s revised technical proposal, submitted March 26, removed
both the statement regarding the use of an interface to use Oracle, and
the statement regarding the March 31 date.  Instead, the revised proposal
explained that its Oracle product *has now reached the Alpha testing stage
with the Beta to be complete by the timeframes indicated in the [RFP].* 
AR, Tab 16, at SA C.4.7.1.  Given this answer, the agency concluded that
an Oracle database for CCI*s product was still in the testing phase and
was not yet offered as part of its commercially-available product.  Thus,
the TET concluded that the proposal was unacceptable in this area. 

   In our view, the facts above speak for themselves.  The RFP expressly
advised that proposals of commercially-offered products must meet critical
requirements to be found acceptable.  RFP, amend. 5, at 130.  CCI*s
explanation that its Oracle-based product was still in testing was
reasonably viewed as not meeting this requirement.  In its arguments, CCI
raises a number of challenges that in no way refute these facts, or
establish that the agency*s conclusions about the facts were
unreasonable. 

   For example, CCI argues that the agency wrongly concluded that offerors
had to meet the requirement by the initial proposal due date, and urges
that the date revised proposals were submitted should control.  Even if we
accept CCI*s contention--and we do not--the facts show that the company
still had no commercially-available Oracle database by the March 26 due
date for revised proposals.  CCI also argues that as long as its product
uses Oracle by the time of performance, its proposal should have been
found acceptable.  Again, we disagree.  As the agency explained in its
letter advising the company of its exclusion from further consideration
for award, CCI*s failure to meet this requirement creates a high risk for
the government.  One of the purposes of government purchases of
commercially-available equipment is to avoid the risks associated with
buying applications that have not yet been tested by the rigors of the
open market.  Chant Eng*g Co., Inc., B-281521, Feb. 22, 1999,
99-1 CPD PA 45 at 4.  In short, we see nothing about the agency*s
conclusion in this area that was unreasonable. 

   Since we conclude that the agency reasonably found CCI*s proposal
unacceptable for its failure to meet the technical requirements set out in
the RFP, we need not address CCI*s challenge to the agency*s assessment of
its past performance.  Instead, we turn to CCI*s allegation that one of
the other offerors had an unfair competitive advantage.

   In a supplemental protest filed after receipt of the agency report, CCI
argues that the outcome of the competition here shows that one offeror, GE
Medical Systems (GE), had an unfair competitive advantage in this
procurement as a result of its role in a Proof of Concept demonstration
conducted to determine whether a commercially-available pharmacy software
product could be successfully integrated with the existing CHCS II
system.  In support of its argument, CCI points to the fact that an RxCOTS
product developed by BDM (which was subsequently acquired by GE Medical
Systems) was used in this Proof of Concept demonstration, and that this
procurement was initiated after the success of that testing.  CCI argues
that the evidence of an unfair competitive advantage is that only GE*s
proposal remains in the competitive range, that it was the only offeror
whose proposal was found acceptable, and that it had the lowest pricing of
the four offerors.

   In our view, any challenge to GE*s participation in this procurement
should have been raised prior to the time set for the receipt of initial
proposals, as required by the timeliness rules of our Bid Protest
Regulations.  4 C.F.R. SA 21.2(a)(1) (2004).  The record here shows that
the impact of the earlier Proof of Concept demonstration on this
competition was discussed at great length by the offerors and the agency. 
Specifically, a total of 11 questions and answers--questions 9, 22, 25,
26, 39, 40, 41, 42, 43, 44, and 46--dealing with whether GE/BDM would have
an unfair advantage in this competition were set forth in amendment 5 to
this RFP.  The agency expressly advised potential offerors that GE would
be allowed to participate in the competition (questions 22, 41), and that
it had determined that GE would not have an unfair competitive advantage
as a result of the prior demonstration (questions 25, 26, 39).  Given that
the agency clearly disclosed that GE would be allowed to compete, and
would not be viewed as having an unfair competitive advantage, CCI was
required to raise any challenge related to an unfair benefit accruing to
GE by virtue of its prior participation before the time proposals were
submitted.  Central Texas College, Ba**245233.4, Jan. 29, 1992, 92-1 CPD
PA 121 at 7-8. 

   To the extent that CCI is arguing that GE was given an unfair advantage
during the evaluation--as opposed to arguing that it should not have been
allowed to compete at all--the record does not support these contentions. 
Although the protester correctly points out that only GE*s proposal
remains in the competitive range, we note that all four offerors*
proposals were included in the initial competitive range; all four were
given the benefit of written and face-to-face discussions based on their
initial proposals, and all four were allowed to submit revised proposals. 
It was only after evaluation of the second round of proposals that GE*s
proposal alone remained in the competitive range. 

   Also, despite its counsel*s access to the evaluation materials pursuant to
a GAO protective order, CCI has not shown that the evaluation conclusions
here--which resulted in the inclusion of only GE*s proposal in the
competitive range--were unreasonable.  After concluding that the
deficiencies in the proposals of CCI and another offeror were so
substantial that they could not be corrected, AR, Tab 20 atA 11, the
agency considered whether to seek a second round of revised technical
proposals from a third offeror and GE.  In making the determination to
leave only GE*s proposal in the revised competitive range, the agency did
consider the fact that GE*s prior experience in the earlier feasibility
study meant there might be less performance risk to the government.  Based
on this conclusion, together with several other detailed reasons, the
agency decided not to seek a second revised proposal from the third
offeror.  Id. at 12-13.  In our view, the agency*s limited consideration
of GE*s role in the earlier feasibility study as part of its assessment of
performance risk as between GE and the third offeror in no way
demonstrates that the evaluation was unreasonable.  Finally, our review
does not support CCI*s suggestion that only GE was in a position to offer
reasonable prices.  In fact, in several instances, other offerors proposed
prices not significantly different from the prices offered by GE.[3] 

   The protest is denied.

   Anthony H. Gamboa

   General Counsel 

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

   [1] In section C of the RFP, the requirement at SA 4.7.1 was stated as
follows:  *The RxCOTS product shall utilize an open database.  DOD
requires the RxCOTS to have an Oracle RDBMS.*  The second amendment to the
RFP included a question from a potential offeror asking the agency what it
meant by *having an Oracle RDBMS.*  In answer, the agency explained that
*[t]he Government requires the RxCOTS product to use an Oracle database.* 
RFP, amend. 2, at 1 (emphasis added).  For purposes of this decision, we
will describe the requirement the same way as the agency did--i.e., that
the system must use an Oracle database.

   [2] Section L of the RFP also explained that *[a]ny proposal not meeting
the requirements designated to be critical as part of their commercially
offered product at the due date of the proposal may be rated unacceptable
and may not be considered for award.*  RFP, amend. 5, at 130.

   [3] Offerors were asked to calculate four separate prices for providing
their RxCOTS product:  one for providing the product to all three
agencies; and three other prices for providing the product separately to
DOD, VA, and the Coast Guard.  For the record, under three of these
scenarios, CCI*s price was significantly higher than that of the other
offerors; in one of them, CCI was more expensive than the lowest-priced
offeror by a factor of 10.  In the one instance where CCI was not the
highest-priced offeror, it was the second highest-priced offeror.