TITLE: B-297397.3, New England Radiation Therapy Management Services, Inc.--Costs, February 2, 2006
BNUMBER: B-297397.3
DATE: February 2, 2006
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B-297397.3, New England Radiation Therapy Management Services, Inc.--Costs, February 2, 2006

   Decision

   Matter of: New England Radiation Therapy Management Services, Inc.--Costs

   File: B-297397.3

   Date: February 2, 2006

   John J. Field, Esq., Jacob B. Pankowski, Esq., and Stephen D. Zubiago,
   Esq., Nixon Peabody LLP, for the protester.

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

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

   DIGEST

   Reimbursement of the costs of filing and pursuing multiple protests is not
   recommended where, even if the protester is correct that the agency took
   corrective action in response to the first protest filed, that protest was
   not clearly meritorious.

   DECISION

   New England Radiation Therapy Management Services, Inc. (NERT) requests
   that we recommend that the firm be reimbursed the costs of filing and
   pursuing its protests of the award of a contract to Radiation Oncology
   Associates (ROA) under request for proposals (RFP) No. 00241-05-00289,
   issued by the Department of Veterans Affairs (VA) for radiation therapy
   services at the VA Medical Center in Providence, Rhode Island.

   We deny the request.

   The RFP provided for award of a 1-year, fixed-price requirements contract.
   RFP at 2. Offerors were informed that award would be made on a best-value
   basis, considering price, past performance, qualifications of key
   personnel, geographic location, and capabilities. Price was stated to be
   approximately 50 percent of the evaluation, and all other factors, when
   combined, were stated to be approximately 50 percent of the evaluation.
   Id. at 28.

   With regard to price, the RFP requested that offerors submit unit prices
   for radiation treatments to be provided to VA patients in the following
   three categories: radiation treatments including radiation therapy;
   "3D" planning treatments; and "IMRT" (that is, intensity modulated
   radiation therapy) treatments for "prostate" patients and for "head and
   neck" patients. The RFP stated that "UNIT PRICE is defined as radiation
   treatment to the VA patient. Included in the UNIT PRICE are the initial
   consult, treatment plan and follow-up exams." Based on these unit prices,
   the RFP requested total fixed prices for these efforts given the
   solicitation's stated estimated quantities of 2,200 radiation treatments,
   65 "3D" planning treatments, and 30 IMRT treatments (20 "prostate"
   treatments and 10 "head and neck" treatments). RFP at 2.

   Prior to the date set for receipt of proposals, the agency sent to
   offerors a "clarification" of the services required. This clarification
   stated that "[t]reatments are based on approximately 100 patients referred
   per year," and that "[p]rostate are included in the 100 patients" and
   "[h]ead and neck are included in the 100 patients." Agency Motion to
   Dismiss, exh. 2, E-mails to Offerors (Aug. 31, 2005). Offerors were later
   advised that, of these 100 patients, 20 patients were prostate patients,
   and 10 patients were head and neck patients. Id., exh. 5, E-mail to
   Offeror (Sept. 19, 2005).

   Three offerors responded to the RFP. ROA's proposal was given the highest
   technical rating and had the lowest overall price of $805,500. NERT's
   proposal received the second highest technical rating, but had a higher
   overall price of $1,145,635. Agency Report at 2-3. Award was made to ROA
   and NERT protested.

   In its protest, NERT argued that ROA ignored the agency's "clarification"
   regarding patient treatments and provided for an insufficient number of
   IMRT treatments, basing its price on 30 IMRT "treatments" rather than 30
   IMRT "patients," thus offering a level of service that was different from,
   and far less than, that offered by NERT. In this regard, NERT raised six
   grounds of protest concerning ROA's price: (1) the agency failed to
   perform a price analysis that would have revealed the "true cost" of ROA's
   proposal, (2) the agency failed to consider performance risk associated
   with ROA's low price, (3) the agency failed to evaluate offers on an
   "equal" basis since NERT's and ROA's proposed prices were based on
   different assumptions, (4) the agency failed to exclude ROA's deficient
   and unacceptable offer in light of the VA's clarification that offerors'
   prices were to be based on 30 IMRT "patients" and not "treatments," (5)
   the agency failed to recognize that ROA's price was unbalanced, and (6)
   the solicitation's "specifications" were unclear and confusing insofar as
   VA's IMRT requirements were concerned. Protest at 9-13; NERT's Request for
   Reimbursement, at 1-2.

   The agency requested dismissal of the protest. In response, the protester
   reiterated its arguments and also asserted that ROA's offer was
   "technically unacceptable" in that it violated VA Acquisition Regulation
   (VAAR) sect. 852.216-70, which stated that "[b]ids offering less than 75
   percent of the estimated requirements or which provide that the Government
   shall guarantee a definite quantity, will not be considered." NERT's
   Response to Motion to Dismiss, at 9. After we denied the agency's motion
   to dismiss, the VA filed an agency report that addressed all six arguments
   raised in NERT's protest but did not respond to the new argument raised in
   NERT's response to the motion to dismiss. In response to the agency's
   report, NERT filed comments and a supplemental protest, asserting that (1)
   ROA's price was "nonconforming" in that it included a "base charge" that
   was not called for in the RFP, (2) ROA's proposal violated VAAR
   sect. 852.216-70 in that it did not meet the 75 percent requirement
   discussed above, and (3) the agency held improper discussions with ROA
   concerning its price. Supplemental Protest at 2-6.

   GAO established a briefing schedule for responding to both NERT's
   supplemental protest and comments and orally advised the parties that a
   hearing in this case was likely necessary because the record was unclear
   as to how the offerors priced their proposals. In a notice dated November
   21, 2005, GAO stated that the hearing, if necessary, would be held the
   week of December 12. We requested that the agency further explain, in its
   supplemental report, "its understanding of ROA's proposal and how ROA's
   explanation of its proposal . . . is consistent with the solicitation."
   GAO Notice (Nov. 21, 2005).

   Prior to the date established for receipt of the supplemental agency
   report, the VA advised our Office that it was taking corrective action in
   response to the supplemental protest. In response to our request for
   further clarification as to the nature of this corrective action, VA
   explained that, based on the allegations of improper discussions and
   noncompliance with VAAR sect. 852.216-70, the agency was amending the
   solicitation to delete VAAR sect. 852.216-70, reopening discussions, and
   seeking revised proposals. In addition, the VA stated that it would "amend
   the solicitation regarding the nature and amount of IMRT treatments to
   remedy alleged improper discussions." Letter from VA to GAO (Nov. 29,
   2005), at 2. We dismissed the protest on November 30.

   NERT requests that we recommend that it be reimbursed the reasonable costs
   of filing and pursuing its protests, including reasonable attorneys' fees.
   It contends that there "can be no serious dispute that NERT's protest is
   clearly meritorious," NERT's Request for Reimbursement, at 5, and that it
   is entitled to the reimbursement of its costs because the corrective
   action was taken after the agency filed its agency report in response to
   the first protest. According to NERT, the corrective action is "plainly
   intended to remedy the problems surrounding `treatment' quantities" raised
   in the first protest. NERT's Supplemental Response to Request for
   Reimbursement, at 2.

   Under the Competition in Contracting Act of 1984, our Office may recommend
   that protest costs be reimbursed only where we find that an agency's
   action violated a procurement statute or regulation. 31 U.S.C. sect.
   3554(c)(1) (2000). Our Bid Protest Regulations provide that where the
   contracting agency decides to take corrective action in response to a
   protest, we may recommend that the protester be reimbursed the costs of
   filing and pursuing its protest, including reasonable attorneys' fees. 4
   C.F.R. sect. 21.8(e) (2005). This does not mean that costs should be
   reimbursed in every case in which an agency decides to take corrective
   action; rather, a protester should be reimbursed its costs where an agency
   unduly delayed its decision to take corrective action in the face of a
   clearly meritorious protest. Griner's-A-One Pipeline Servs.,
   Inc.--Entitlement to Costs, B-255078.3, July 22, 1994, 94-2 CPD para. 41.
   Thus, as a prerequisite to our recommending that costs be reimbursed where
   a protest has been settled by corrective action, not only must the protest
   have been meritorious, but it also must have been clearly meritorious,
   i.e., not a close question. J.F. Taylor, Inc.--Entitlement to Costs,
   B-266039.3, July 5, 1996, 96-2 CPD para.5 at 3; Baxter Healthcare
   Corp.--Entitlement to Costs, B-259811.3, Oct. 16, 1995, 95-2 CPE para.174
   at 4-5; GVC Cos.--Entitlement to Costs, B-254670.4, May 3, 1994, 94-1 CPD
   para. 292 at 3. A protest is "clearly meritorious" when a reasonable
   agency inquiry into the protester's allegations would show facts
   disclosing the absence of a defensible legal position. Department of the
   Army--Recon., B-270860.5, July 18, 1996, 96-2 CPD para. 23 at 3. The mere
   fact that an agency decides to take corrective action does not establish
   that a statute or regulation clearly has been violated. Spar Applied
   Sys.--Declaration of Entitlement, B-276030.2, Sept. 12, 1997, 97-2 CPD
   para. 70 at 5.

   Here, we conclude that it is not appropriate to recommend that NERT
   recover its protest costs because, even if the corrective action was in
   response to NERT's original protest, as NERT alleges, that protest was not
   clearly meritorious. In its original protest, NERT asserted that either
   ROA's price failed to account for the number of treatments required by the
   RFP or, in the alternative, the solicitation requirements were ambiguous.
   The agency denied that the solicitation was ambiguous and asserted that
   ROA's price was in accordance with the RFP's price schedule. Which party's
   position is correct is not apparent from the record, which is why GAO
   informed the parties that a hearing was likely going to be necessary to
   complete and clarify the record. See LENS, JV--Costs, B-295952.4, Dec. 12,
   2005, 2005 CPD para. __ at 5 (protest was not clearly meritorious where
   resolution of the protest required further record development such as a
   hearing to complete and clarify the record). The fact that NERT asserts
   that the agency's corrective action, filed after submission of the agency
   report, was in response to its original protest does not entitle it to its
   costs where, as here, that protest was not clearly meritorious. See East
   Penn Mfg. Co., Inc.--Costs, B-291503.4, Apr. 10, 2003, 2003 CPD para. 83
   at 2-3; J.F. Taylor, Inc.--Costs, B-266039.3, July 5, 1996, 96-2 CPD para.
   5 at 3.

   The request for a recommendation that costs be reimbursed is denied.

   Anthony H. Gamboa

   General Counsel