TITLE: B-296231.2; B-296231.3, Med Optical, September 7, 2005
BNUMBER: B-296231.2; B-296231.3
DATE: September 7, 2005
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B-296231.2; B-296231.3, Med Optical, September 7, 2005

   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: Med Optical

   File: B-296231.2; B-296231.3

   Date: September 7, 2005

   Joseph M. Goldstein, Esq., Shutts & Bowen LLP, for the protester.

   William J. Cea, Esq., Becker & Poliakoff, PA, for Vision MarketPlace,
   Inc., an intervenor.

   Merilee Rosenberg, Esq., and Dennis Foley, Esq., Department of Veterans
   Affairs, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that the agency's evaluation of the awardee's past performance
   was improper is denied where the record supports the agency's evaluation.

   2. Protest challenging agency's evaluation of protester's proposal is
   denied where the alleged evaluation errors did not result in competitive
   prejudice to protester.

   DECISION

   Med Optical protests the award of a contract to Vision MarketPlace, Inc.
   (VMP) by the Department of Veterans Affairs (VA) under request for
   proposals (RFP) No. 546-18-05 to supply prescription eyeglasses and eye
   exams to veterans in Broward County, Florida. Med Optical primarily
   asserts in its original protest that the awardee failed to offer a
   facility that dispenses eyeglasses and eye exams and is located within 5
   miles of the nearest VA medical facility, as required by the RFP, and that
   the agency improperly evaluated VMP's past performance. In a supplemental
   protest, Med Optical asserts that its ranking was improperly reduced from
   second to fourth place during the reevaluation of proposals.[1]

   We deny the protest.

   On January 18, 2005, the VA issued the solicitation, set aside for small
   businesses, for a 1-year indefinite-quantity, fixed-price contract with 2
   option years, to furnish prescription eyeglasses and eye exams to veteran
   beneficiaries in five Florida counties, including Broward County. Offerors
   could submit offers for any or all of the five locations. The solicitation
   requires that a contractor have a facility that furnishes prescription
   eyeglasses and eye exams that is within 5 miles of the nearest VA medical
   facility and is located within the respective county.

   Award was to be made to the firm determined to have submitted the proposal
   deemed most advantageous to the government. In addition to price, the RFP
   contained the following technical evaluation factors: demonstrated
   capability, quality assurance, personnel qualifications, and past
   performance. The RFP also identified subfactors for each of these
   criteria. Each of these four factors was of equal importance; when
   considered together, they were significantly more important than price.
   The solicitation stated that offerors were to submit past performance
   information directly related to the "[d]epth and relevancy of work
   experience in providing similar services for similar customers," and to
   "[p]rovide at least three (3) references, letters or recommendations." RFP
   at 55-56.

   On February 18, six proposals were opened for the Broward County location,
   including those from Med Optical and VMP. One offer lacked a technical
   proposal and was not considered. With regard to the facility location
   requirement, VMP's proposal listed four locations in Broward County: Coral
   Springs, Tamarac, Deerfield Beach, and Aventura. To address the past
   performance factor, VMP listed four references in its proposal: the VA
   office in Birmingham, Alabama; the Florida Department of Education; the
   Virginia Department for the Visually Handicapped; and the Massachusetts
   Eye and Ear Infirmary. In addition, VMP supplied several letters of
   recommendation, including one each from its first two references.

   After the technical evaluation team analyzed the proposals, award was made
   to VMP. Med Optical protested that award on April 13, challenging the
   acceptability of VMP's proposal under the facility location requirement
   and the agency's evaluation of VMP's past performance. On May 12, the VA
   notified our Office that, while it rejected the allegations contained in
   Med Optical's protest, it would nevertheless take corrective action due to
   problems the agency found with the evaluations. We dismissed the protest
   on May 13.

   After the proposals were reevaluated, the average point scores for both
   VMP and Med Optical declined. VMP remained the offeror with the highest
   rating on the technical factors, while Med Optical dropped from second to
   fourth place, having been downgraded for weaknesses under two evaluation
   factors--quality assurance plan and personnel qualifications. VMP also
   offered the lowest price of all the offerors; Med Optical's price was
   substantially higher than VMP's. By letter dated May 23, the protester was
   notified that VMP was once again the awardee for Broward County, and this
   protest followed.

   Med Optical alleges that VMP's proposal should have been found
   unacceptable for failing to offer a facility located within 5 miles of the
   nearest VA medical facility; that the agency improperly evaluated VMP's
   past performance; and that the agency's reevaluation improperly lowered
   the score of Med Optical's proposal in the reevaluation, specifically,
   that the agency improperly scored Med Optical's proposal under the
   personnel qualifications and demonstrated capability factors.

   As a preliminary matter, Med Optical argues that, with respect to Broward
   County, the agency historically has construed the RFP's 5-mile proximity
   requirement to mean that the offeror's facility must be located within 5
   miles of the VA's Oakland Park Outpatient Clinic, and that VMP has offered
   no facility that satisfies that requirement. The protester's position is
   unpersuasive. The language of the RFP requires that the contractor have a
   facility inside of Broward County and within 5 miles of any VA medical
   facility; it in no way limits offerors to proposing facilities within 5
   miles of the VA facility in Oakland Park.

   As noted above, VMP's proposal listed four locations for Broward County.
   The first location, Coral Springs, is VMP's corporate office, which does
   not routinely administer eye exams or dispense prescription eyeglasses.
   The second facility, Aventura, is located outside of Broward County. Both
   of the other locations, Deerfield Beach and Tamarac, are inside Broward
   County and within 5 miles of the nearest VA medical facility. Since the
   record thus shows that two of the locations VMP proposed satisfy the
   5-mile requirement in the RFP, Med Optical's challenge to the award to VMP
   on this ground is without merit.

   Med Optical also challenges the agency's evaluation of VMP's past
   performance.

   Where a solicitation requires the evaluation of an offeror's past
   performance, we will examine the agency's evaluation to ensure that it was
   both reasonable and consistent with the solicitation's evaluation
   criteria, and with procurement statutes and regulations. Hanley Indus.,
   Inc., B-295318, Feb. 2, 2005, 2005 CPD para. 20 at 4. We see no basis to
   question the agency's evaluation here.

   The solicitation requested that offerors supply information related to the
   depth and relevance of work experience in providing similar work to
   similar customers, and at least three references, letters, or
   recommendations. VMP satisfied the solicitation requirements by listing as
   references the four offices noted above, and included several letters of
   recommendation in its proposal. Based on its review of this information,
   the agency gave VMP the highest score available for past performance.

   Med Optical challenges the agency's favorable rating of VMP's past
   performance, and offers the names of several current and former VA
   officials who Med Optical alleges could offer testimony concerning
   problems with VMP's past performance. The contracting officer here states
   that "there were no complaints made or filed against [VMP]" under previous
   contracts. Contracting Officer's Statement at 1. Although Med Optical
   alleges that the agency has knowledge of VMP's allegedly poor past
   performance and names VA officials who it asserts could substantiate the
   allegation, Med Optical offered no evidence that the contracting officials
   for this procurement had any reason to know of any poor past performance
   on the part of VMR. Thus, because VMP's proposal satisfied the
   requirements of the RFP, and because the contracting officials had no
   knowledge of alleged poor performance by VMP, our review of the record
   leads us to conclude that the agency's evaluation of VMP's past
   performance was both reasonable and consistent with the RFP's evaluation
   terms.

   Med Optical also asserts that the agency's evaluation of its proposal, in
   the areas of personnel qualifications and demonstrated capability, was
   unreasonable.[2] We need not address these issues since the record shows
   that the protester was not prejudiced by any alleged errors in these
   areas. Our Office will not sustain a protest unless the protester
   demonstrates a reasonable possibility that it was prejudiced by the
   agency's actions, that is, unless the protester demonstrates that, but for
   the agency's actions, it would have had a substantial chance of receiving
   the award. McDonald-Bradley, B-290126, Feb. 8, 1996, 96-1 CPD 54 at 3; see
   Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
   Here, even if Med Optical had received perfect scores in both areas where
   it challenges the agency's evaluation, its proposal would still be lower
   rated technically and substantially higher priced than the awardee's.
   Accordingly, Med Optical would not be in line for award even if it
   prevailed in its challenge to the evaluation of its proposal. Marwais
   Steel Co., B-254242.2; B-254242.3, May 3, 1994, 94-1 CPD 291 at 7.

   The protest is denied.

   Anthony H. Gamboa
   General Counsel

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

   [1] We dismissed another protest ground, that the agency had improperly
   evaluated Med Optical's proposal, for failing to set forth detailed legal
   and factual grounds for a protest.

   [2] In connection with this protest ground, Med Optical argues that the
   agency reduced its score, and lowered its ranking in the reevaluation, in
   retaliation for Med Optical having filed its first protest. Contracting
   officers are presumed to act in good faith; we will not attribute unfair
   or prejudicial motives to procurement officials on the basis of inference
   or supposition. Pride Mobility Prods. Corp., B-292822.5, Dec. 6, 2004,
   2005 CPD para. 72 at 5. Here, there is no evidence that the reduction in
   the protester's scores during the reevaluation was in any way the result
   of bad faith on the part of the agency.