TITLE: B-297321; B-297321.2, Laerdal Medical Corporation, December 23, 2005
BNUMBER: B-297321; B-297321.2
DATE: December 23, 2005
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B-297321; B-297321.2, Laerdal Medical Corporation, December 23, 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: Laerdal Medical Corporation

   File: B-297321; B-297321.2

   Date: December 23, 2005

   Craig P. Murphy, Esq., and John D. Holden, Esq., Windels Marx Lane &
   Mittendorf, LLP, for the protester.

   Kathleen E. Karelis, Esq., W. Jay DeVecchio, Esq., and David B. Robbins,
   Esq., Jenner & Block LLP, for Medical Education Technologies, Inc., an
   intervenor.

   Duncan Butts, Esq., Department of the Navy, for the agency.

   Linda C. Glass, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging evaluation of offerors' technical proposals is denied
   where record shows that agency's evaluation was reasonable.

   DECISION

   Laerdal Medical Corporation protests the award of a contract to Medical
   Education Technologies, Inc. (METI) under request for proposals (RFP) No.
   N61339-05-R-0119, issued by the Department of the Navy for medical
   simulator training devices. Laerdal challenges the Navy's evaluation of
   the offerors' technical proposals.

   We deny the protest.

   BACKGROUND

   The combined synopsis/solicitation was posted on the Federal Business
   Opportunities website on August 16, 2005. The RFP contemplated the award
   of an indefinite-delivery/indefinite-quantity (ID/IQ) contract for a base
   year and three option periods. As relevant here, the RFP required the
   following medical training devices: contract line item number (CLIN)
   0001--breathe/bleed simulator[1] and CLIN 0003--human-weighted mannequin
   trainer. The RFP required offerors to include in their proposals a
   technical description of the items being offered in sufficient detail to
   enable the agency to determine compliance with the requirements in the
   SOW. Agency Report (AR), Tab 6, RFP at 6. Part II of the RFP also
   contained the following:

   The offeror shall complete the Requirements Checklist(s) (Attachment 2)
   which clearly demonstrates how their product meets the requisite
   requirements. Offerors shall identify in the notes section of the
   Requirements Checklist(s), the page number of the offer that demonstrates
   how their product(s) meet the Government requirement. Failure to meet the
   Government stated requirement is a deficiency, which may render an offeror
   ineligible for award.

   Offerors were advised that the agency intended to award up to two ID/IQ
   contracts without discussions. The RFP provided for a two-step evaluation
   approach. First, the agency would evaluate technical proposals on a
   past/fail basis. Second, for those offerors whose proposals were found
   technically acceptable, the agency would then evaluate the past
   performance of these offerors and perform a trade-off between the
   competing offerors on the basis of past performance and price, with past
   performance being significantly more important than price.

   Laerdal and METI submitted proposals. As required, METI's requirements
   checklist identified the pages in METI's proposal where the specific
   requirements were addressed. Based on its evaluation of METI's proposal,
   the agency concluded that METI's proposal met all of the requirements
   listed on the checklist. In contrast, on its checklist form, Laerdal did
   not reference the specific pages in its proposal where the company showed
   compliance with the requirements. The agency reviewed Laerdal's technical
   proposal and concluded that Laerdal failed to address certain requirements
   under CLINs 0001 and 0003. To ensure that the agency had not inadvertently
   missed a relevant technical description in Laerdal's proposal, on
   September 12, Laerdal was asked to provide the exact section and page
   numbers in its proposal for the requirements that the evaluators
   determined had not been met by Laerdal. The agency sought information for
   the following four items:

   1. The SOW paragraph 3.1.3 requires "needle decompression sites shall
   allow multiple punctures with a minimum of ten (10) punctures at each site
   prior to the requiring replacements parts." Please indicate where you have
   addressed this requirement in your proposal, specifically by section and
   page number.

   2. The SOW paragraph 3.1.4 requires "the pulse strength shall mimic blood
   pressure in a clinically accurate manner." Please indicate where you have
   addressed the pedal pulse requirement in your proposal, specifically by
   section and page number.

   3. The SOW paragraph 3.1.8 requires "each breathe/bleed simulator shall be
   delivered with hard sided transit cases to facilitate the transfer of
   equipment to different locations." Please indicate where you have
   addressed this requirement in your proposal, specifically by section and
   page number.

   4. The SOW paragraph 4 requires "it [the mannequin] shall weigh a minimum
   of 150 pounds with water resistant skin, rust resistant joints and no
   pinch points." Please indicate where you have addressed the rust resistant
   joints and no pinch points requirement in your proposal, specifically by
   section and page number.

   AR, Tab 23, E-mail from Agency to Laerdal, Sept. 12, 2005.

   Laerdal responded with reference cites for the first three items. However,
   for the fourth item, Laerdal stated that it was not "referenced." AR, Tab
   24, E-mail from Laerdal to Agency, Sept. 12, 2005 .

   The agency reviewed the sections of Laerdal's proposal identified by
   Laerdal in its e-mail response and determined that the requirements in
   question were not addressed in these sections of the proposal. Since the
   agency found that Laerdal's proposal failed to demonstrate compliance with
   four of the RFP's technical requirements, Laerdal's proposal was
   determined to be technically unacceptable and its proposal was eliminated
   from further consideration. The agency subsequently evaluated METI's past
   performance and rated METI as low risk. After determining METI's price was
   fair and reasonable, the agency awarded a contract to METI on September
   21. Laerdal filed this protest with our Office on September 29.

   LAERDAL'S TECHNICAL EVALUATION

   Laerdal argues that the agency unreasonably determined that its proposal
   was technically unacceptable. Laerdal maintains that it manufactures
   medical simulators that are the "industry standard," and argues that the
   agency's rejection of its proposal for failing to satisfy 4 of the more
   than 45 separate technical specifications was unreasonable. Where a
   protester challenges an agency's evaluation of a proposal's technical
   acceptability, our review is limited to considering whether the evaluation
   is reasonable and consistent with the terms of the RFP and applicable
   procurement statutes and regulations. National Shower Express, Inc.;
   Rickaby Fire Support, B-293970, B-293970.2, July 15, 2004, 2004 CPD para.
   140 at 4-5. As with any evaluation review, our chief concern is whether
   the record supports the agency's conclusions. Innovative Logistics
   Techniques, Inc., B-275786.2, Apr. 2, 1997, 97-1 CPD para. 144 at 9.

   Clearly stated RFP technical requirements are considered material to the
   needs of the government, and a proposal that fails to conform to such
   material terms is technically unacceptable and may not form the basis for
   award. National Shower Express, Inc.; Rickaby Fire Support, supra. An
   offeror is responsible for affirmatively demonstrating the merits of its
   proposal and risks the rejection of its proposal if it fails to do so. HDL
   Research Lab, Inc., B-294959, Dec. 21, 2004, 2005 CPD para.8 at 5.

   As set forth above, the solicitation informed offerors that technical
   proposals must include a technical description of the items being offered
   in sufficient detail to determine compliance with the requirements in the
   SOW. Under the RFP, an offeror was required to identify on the
   requirements checklist the page number of its proposal that showed how its
   product met the specific agency requirements. The RFP also warned offerors
   that their failure to meet a stated requirement was a deficiency, which
   could render their proposal ineligible for award. Under the RFP scheme,
   therefore, the agency reserved for itself the right to reject a proposal
   because the offeror failed to meet any of the stated requirements. Based
   on our review of the record, the agency's evaluation here was reasonable.

   For CLIN 0001--the breathe/bleed simulator--the SOW required that needle
   decompression sites allow for multiple punctures with a minimum of 10
   needle punctures at each site prior to requiring replacement parts. AR,
   Tab 14, SOW, para. 3.1.3. The evaluators found that Laerdal's proposal
   failed to meet this requirement.

   Laerdal contends that sections 3.1.3 and 3.1.7 of its proposal respond to
   this requirement. However, the agency found, and the record confirms, that
   section 3.1.3 of Laerdal's proposal discusses how the product simulates
   multiple respiratory patterns and states that "Bi-lateral tension
   pneumothoras can be simulated and treatment with either needle
   decompression or chest tube insertion can be practiced." While the section
   mentions needle decompression, it never addresses the needle puncture
   requirement. The record also confirms the agency's determination that
   section 3.1.7 of Laerdal's proposal does not address the SOW requirement.
   This section states that the Laerdal training system includes consumables
   for continuous training that will support the training of 80 students.

   The protester argues that since its proposal stated that 80 students can
   be trained continuously, the requirement of a minimum of 10 needle
   punctures before replacement of parts clearly could be satisfied. However,
   while section 3.1.7 of Laerdal's proposal states that its training system
   includes consumables for continuous training that will support the
   training of 80 students, as the agency correctly points out, this proposal
   language does not indicate how often "consumables" must be replaced or
   otherwise establish that Laerdal's product permits a minimum of 10 needle
   punctures prior to requiring replacement parts. We agree with the agency
   that Laerdal did not establish in its proposal its compliance with the 10
   needle puncture requirement.

   Next, the evaluators found that Laerdal failed to comply with the
   requirement for a hard-sided transit case for the breathe/bleed simulator.
   The agency specifically amended the SOW to require hard-sided transit
   cases based on previous problems encountered with Laerdal's "portability
   kit bag." AR, Tab 11, E-mail from Agency to Laerdal, Aug. 24, 2005.[2] In
   response to the agency's request that Laerdal identify where in its
   proposal it addressed this requirement, Laerdal stated that this
   requirement was addressed on page 15 of its proposal and in its price
   quote. However, the agency found that while both of these proposal
   references mention transit cases, they do not identify the cases as
   "hard-sided." While Laerdal, in its initial protest, argued that the
   agency should have known that "transit case" is universally understood in
   the industry to mean a hard-sided transit case, Protest at 7, Laerdal
   provides no support for its position that hard sided cases are the
   industry standard, and, in fact, the record suggests that both hard-sided
   and soft-sided transit cases are available for this equipment. We find
   reasonable the agency's conclusion that Laerdal's proposal did not
   establish that the firm was offering the required case.

   The SOW for CLIN 0003--the human-weighted mannequin trainer--required that
   the mannequin weigh a minimum of 150 pounds and have water resistant skin,
   rust resistant joints, and no pinch points. AR, Tab 14, SOW at 4. In
   response to CLIN 0003, Laerdal proposed its "Tuff Kelly Manikin." In
   describing the functions of its mannequin in its proposal, Laerdal failed
   to address these requirements. As described above, the agency asked
   Laerdal to provide the specific section and page number where these
   requirements were addressed in its proposal. Laerdal's response was that
   it was "not referenced." AR, Tab 14, E-mail from Laerdal to Agency, Sept.
   12, 2005. In our view, the agency evaluators reasonably decided that this
   response confirmed that Laerdal's proposal had failed to demonstrate that
   the firm's mannequin meets these requirements.[3]

   In sum, we find that, consistent with the RFP terms, the agency reasonably
   determined that Laerdal's proposal was technically unacceptable because it
   failed to meet SOW requirements.[4]

   METI'S EVALUATION

   In a supplemental protest filed with our Office on October 31, Laerdal
   challenges the agency's evaluation of METI's proposal. Laerdal argues that
   METI's proposal failed to meet the requirements of the SOW, including the
   requirements for a life-like mannequin, a computer-driven breathe/bleed
   simulator, hard-sided cases, and the 10 needle punctures prior to
   requiring replacements parts. The agency specifically addressed and
   refuted these contentions in its supplemental report, explaining in detail
   where and how METI addressed the specific requirements in its proposal and
   explaining why METI's proposal was properly determined to be technically
   acceptable. For example, the record shows that METI in its proposal
   provided for hard-sided transit cases, computer-controlled simulators, and
   addressed the 10 needle puncture requirement. In its comments, Laerdal
   expresses disagreement with the agency supplemental report, but makes no
   substantive rebuttal to the agency's position. Our review of the record
   provides no basis to find the agency's evaluation here unreasonable or
   otherwise objectionable.[5]

   CONFLICT OF INTEREST

   In its supplemental protest, Laerdal argues that two of the four agency
   evaluators had an alleged conflict of interest and were biased against the
   protester. According to the protester, one evaluator had a long-standing
   and inappropriate relationship with METI and the other evaluator was a
   former Laerdal employee.

   Contracting agencies are responsible for reviewing potential conflicts of
   interest posed by relationships between evaluators and offerors in order
   to ensure the impartiality in the evaluation and to preserve the integrity
   of the procurement process. DRI/McGraw-Hill, B-261181, B-261181.2, Aug.
   21, 1995, 95-2 CPD para. 76 at 3. Where a protester asserts that an
   evaluator is biased because of the individual's experiences or
   relationships, we will examine the nature of the relationship and whether
   the evaluator exerted improper influence in the procurement on behalf of
   the awardee or against the protester. Id. We will not sustain a protest
   based upon an evaluator's alleged conflict of interest, where there is no
   showing that the protester's competitive position was affected by the
   alleged conflict of interest. See Creative Mgmt. Tech., Inc., B-266299,
   Feb. 19, 1996, 96-1 CPD para. 61 at 7.

   Here, the agency has provided evaluation documentation to support its
   evaluation of the proposals of both Laerdal and METI. As explained above,
   the agency's technical evaluation was conducted on a pass/fail basis and
   the protester's proposal was determined to be technically unacceptable
   because the firm failed to demonstrate in its proposal that it satisfied
   several requirements of the RFP. As discussed above, we have no basis on
   this record to find that the agency's evaluation was unreasonable, there
   is no basis to believe that any of conflict of interest or bias, assuming
   it existed, affected the protester's competitive position. Competitive
   prejudice is an essential element of every viable protest. Lithos
   Restoration, Ltd., B-247003.2, Apr. 22, 1992, 92-1 CPD para. 379 at 5.
   Given Laerdal's failure to identify any evaluation errors attributable to
   its allegations of conflict of interest or bias, we have no basis to
   question the award.[6]

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] The breathe/bleed simulator is a full-sized, human-like mannequin with
   anatomically correct features, which is computer controlled. Agency Report
   (AR), Tab 18, Statement of Work (SOW) at 2.

   [2] Laerdal argues that the addition of the hard-sided case requirement
   was prejudicial to Laerdal because it was based upon prior perceived
   weaknesses in Laerdal's transit case. To the extent the protester is
   alleging that the agency did not have a legitimate requirement for
   hard-sided cases, the objection is untimely. A protest based upon alleged
   improprieties in a solicitation which were apparent prior to the time set
   for receipt of proposals but not filed until after award, as in this case,
   is untimely. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2005).

   [3] Laerdal argues in its protest that its proposal shows that its
   mannequin was rust-resistant because it stated in section 3.1.1 of its
   proposal for CLIN 0001 that its mannequin could withstand light mist and
   light rain. However, even assuming that this language indicates that
   Laerdal's product is rust-resistant, CLIN 0001 was for the breathe/bleed
   simulator, which is a different mannequin from the human-weighted
   mannequin trainer required under CLIN 0003. Again, the record shows that,
   when describing the features of its mannequin submitted in response to
   CLIN 0003, the agency correctly concluded that Laerdal did not show that
   its human-weighted mannequin had water-resistant skin, rust-resistant
   joints, and no pinch points.

   [4] In light of our conclusion, we do not address the additional area of
   noncompliance.

   [5] Laerdal further argues that METI should have been disqualified because
   METI failed to complete the checklist item for hard-sided cases. This
   argument is without merit. As they did in connection with Laerdal's
   proposal, the evaluators reviewed METI's proposal to determine if
   technical requirements were satisfied and did not rely solely on the
   checklist. METI in it proposal specifically stated that its transit cases
   were hard-sided. AR, Tab 20, METI's Proposal, at 34.

   [6] Laerdal raises several additional issues. For example, it argues that
   METI is "buying in" to win this contract. With respect to a fixed-price
   award, a protester's claim that an offeror submitted an unreasonably low
   price--even that the price is below the cost of performance--is not a
   valid basis for protest. An offeror, in its business judgment, properly
   may decide to submit a price that is extremely low. Diemaster Tool, Inc.,
   B-238877, Apr. 5, 1990, 90-1 CPD para. 375 at 2. An agency decision that
   the firm can perform the contract at the offered price is an affirmative
   determination of responsibility, which we will not review except in
   circumstances not alleged here. 4 C.F.R. sect. 21.5(c). We have reviewed
   all of Laerdal's protest grounds not specifically addressed in this
   decision and we conclude that they are without merit.