TITLE: B-298772.2, Freedom Lift Corporation, January 25, 2007
BNUMBER: B-298772.2
DATE: January 25, 2007
******************************************************
B-298772.2, Freedom Lift Corporation, January 25, 2007
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: Freedom Lift Corporation
File: B-298772.2
Date: January 25, 2007
Huey P. Cotton, Esq., Cozen O'Connor, for the protester.
Scott M. Heimberg, Esq., Thomas P. McLish, Esq., Andrea T. Vavonese, Esq.,
and Lauren R. Bates, Esq., Akin Gump Strauss Hauer & Feld LLP, for Bruno
Independent Living Aids, Inc., an intervenor.
Maura C. Brown, Esq., Department of Veterans Affairs, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Contracting officer did not act inconsistently in selecting
lower-rated, lower-priced item for award under one line item and
higher-rated, higher-priced item for award under another where
price/technical trade-off considerations pertaining to the two line items
were distinct.
2. Under solicitation for wheelchair/scooter lifts to be installed in
motor vehicles used by mobility-impaired veterans, protest that
specification requiring that lifts be capable of lifting 350 pounds should
be interpreted as requiring that lifts be capable of lifting 350 pounds on
majority of vehicles owned by mobility-impaired veterans is denied where
solicitation contained no language indicating that compliance with
specification was required in a majority--or in any specific
percentage--of vehicles.
DECISION
Freedom Lift Corporation protests the award of line items 2, 5, and 7 to
Bruno Independent Living Aids, Inc. under request for proposals (RFP) No.
797-NC-05-0009, issued by the National Acquisition Center of the
Department of Veterans Affairs (VA) for wheelchair lifts and carriers, and
scooter lifts.[1] The protester contends that the agency acted
inconsistently in selecting Bruno's lift for award under item 2, while
failing to select the protester's own lift for award under item 8. The
protester also argues that the lift that Bruno offered in response to line
items 5 and 7 failed to comply with an RFP specification pertaining to
weight capacity.
We deny the protest.
BACKGROUND
The RFP, which was issued on January 20, 2005, sought unit prices for
estimated quantities of various types of wheelchair lifts and carriers,
and scooter lifts. Prices were sought for a base and 4 option years. Of
relevance to this protest, line item 2 sought offers for a power-operated
wheelchair carrier for manual wheelchairs and hitches; line item 5 sought
offers for a hoist system interior power-operated lift for scooters; and
line item 7 sought offers for a hoist system interior power-operated lift
for power wheelchairs. The RFP included specifications that defined
required features of the lifts and carriers, and offerors were required to
submit descriptive literature demonstrating compliance with these
specifications. RFP amend. 8, at 40, 41. The only specification pertaining
to item 5 required a minimum weight capacity of 85 pounds and a maximum
weight capacity of 350 pounds; similarly, the only specification
pertaining to item 7 required a minimum weight capacity of 87 pounds and a
maximum weight capacity of 350 pounds.[2] Required features of item 2 were
that the carrier be constructed of all-weather material; that it have a
locking device, a cover, a manual emergency back-up system, minimum and
maximum weight capacities of 20 and 100 pounds, respectively, and 12
inches clearance from the ground; and that it mount to various types of
hitches.
The solicitation explained that after the product literature and technical
proposals had been evaluated to determine compliance with the
specifications, a "subjective technical evaluation" of the lifts and
carriers would be performed. RFP amend. 8, at 46. The following four
subfactors, listed in descending order of importance, were to be
considered in this evaluation: safety and stability, performance, number
of warranty years, and dealer network. Id. at 46-47. Under the safety and
stability subfactor, the VA was to assess the probability of the device
malfunctioning and/or injuring the user. Offerors were advised that if a
device received a rating of poor under the safety and stability factor, it
would be rejected without further consideration. Under the performance
subfactor, the agency was to "assess features that affect operation,
functionality and suitability for veteran patients, including, but not
limited to, [e]ase of use (with or without mobility aid); securement
system (occupied or unoccupied); tilting device (for line item #1 only);
operating switches (including backup system); and ground clearance
(occupied or unoccupied)." Id. at 46.
The RFP provided that in addition to the foregoing technical subfactors,
proposals would be evaluated on the basis of price, the offeror's past
performance and reputation for quality, and the offeror's small
disadvantaged business participation targets. The solicitation advised
that all factors other than price, when combined, were somewhat more
important than price.[3] The solicitation further advised that the
government intended to award one contract per line item to the offeror
whose proposal was determined most advantageous to the government, price
and other factors considered.
Multiple offerors submitted offers for line items 2, 5, 7, and 8. A
technical evaluation panel rated the proposals in accordance with the
following scale: superior, very good, good, acceptable, fair, and poor.
Ratings and evaluated prices for offers received in response to line item
2 were as follows:
+------------------------------------------------------------------------+
|Offeror |Overall Technical|Price |Past Performance |SDB |
|-----------+-----------------+------------+-----------------+-----------|
|Bruno |Good |$2,695,003 |Neutral |Poor |
|-----------+-----------------+------------+-----------------+-----------|
|[Deleted] |Acceptable |$3,641,187 |Neutral |Poor |
|-----------+-----------------+------------+-----------------+-----------|
|[Deleted] |Good |$3,959,700 |Neutral |Acceptable |
|-----------+-----------------+------------+-----------------+-----------|
|Freedom |Very Good |$3,510,082 |Neutral |Acceptable |
+------------------------------------------------------------------------+
Agency Report at 5. The contracting officer determined that the advantage
of Bruno's proposal with regard to price outweighed the advantage of
Freedom Lift's proposal with regard to the technical and SDB participation
factors and selected Bruno's proposal for award as representing the best
value to the government.
Ratings and evaluated prices for offers received in response to line items
5 and 7 were as follows:
+------------------------------------------------------------------------+
|Offeror |Overall Technical|Price |Past Performance|SDB |
|----------+-----------------+---------------+----------------+----------|
|Bruno |Good |$38,692,461 |Neutral |Poor |
|----------+-----------------+---------------+----------------+----------|
|[Deleted] |Good |$51,901,280 |Neutral |Acceptable|
|----------+-----------------+---------------+----------------+----------|
|[Deleted] |Acceptable |$56,139,008 |Neutral |Poor |
|----------+-----------------+---------------+----------------+----------|
|Freedom |Good |$44,459,048 |Neutral |Acceptable|
|----------+-----------------+---------------+----------------+----------|
|[Deleted] |Acceptable |$69,273,376[4] |Neutral |Poor |
|----------+-----------------+---------------+----------------+----------|
|[Deleted] |Acceptable |$46,549,561 |Neutral |Poor |
+------------------------------------------------------------------------+
Id. at 6. The contracting officer determined that Bruno's offer
represented a better value than Freedom Lift's due to its lower evaluated
price and selected Bruno for award of both items.
Ratings and evaluated prices for offers received in response to line item
8 were as follows:
+------------------------------------------------------------------------+
|Offeror |Overall Technical|Price |Past Performance |SDB |
|-----------+-----------------+------------+-----------------+-----------|
|[Deleted] |Good |$2,524,020 |Neutral |Poor |
|-----------+-----------------+------------+-----------------+-----------|
|Harmar |Superior |$3,332,640 |Neutral |Acceptable |
|-----------+-----------------+------------+-----------------+-----------|
|[Deleted] |Acceptable |$3,114,921 |Neutral |Poor |
|-----------+-----------------+------------+-----------------+-----------|
|Freedom |Good |$2,473,404 |Neutral |Acceptable |
|-----------+-----------------+------------+-----------------+-----------|
|[Deleted] |Good |$3,240,515 |Neutral |Poor |
+------------------------------------------------------------------------+
Agency Supplemental Reply, Jan. 10, 2007, at 3.[5] The contracting officer
determined that the technical superiority of Harmar's lift more than
offset its higher price and selected Harmar for award of the item.
By letter dated August 9, 2006, the contracting officer notified Freedom
Lift of the awardees of the various line items and their base year unit
prices. Of relevance to this protest, the protester was notified that line
items 2, 5, and 7 had been awarded to Bruno and line item 8 to Harmar.
Freedom Lift immediately sought clarifying information regarding several
of the items and on August 16 requested a debriefing. The contracting
officer responded by letter dated August 24, in which she explained the
ratings assigned the awardees' and the protester's offers under the
various line items and the basis for her best value determination with
regard to each. Freedom Lift filed an agency-level protest on September 1.
By letter dated October 10, the contracting officer denied the protest,
and on October 20, Freedom Lift protested to our Office.
DISCUSSION
Freedom Lift argues that the agency acted inconsistently (and thus
unreasonably) in selecting Bruno's proposal, which was lower in price but
had received a lower technical rating than its own, for award under line
item 2, while selecting Harmar's proposal, which was higher in price but
had received a higher technical rating than its own, for award under line
item 8.
In determining that Bruno's proposal represented the best value to the
government under item 2, the contracting officer concluded that
"[a]lthough Freedom Lift had some desirable features that earned them a
rating of `Very Good' vs. Bruno's `Good' rating, VA is not willing to pay
a significantly higher price for them." Price Negotiation Memorandum at
63. In determining that Harmar's proposal, which had received a technical
rating of superior as compared with the protester's rating of good,
represented the best value under item 8, she concluded that "the enhanced
safety feature of the automatic lock down `hands free' feature [of the
Harmar lift], which makes the lift easier to use, as well as the better
dealer network, would offset paying a higher price." Id. at 86-87. In
other words, the contracting officer determined that the technical
advantages associated with the lift offered by Harmar under item 8 were
worth a price premium of 35 percent, but that those associated with the
lift offered by Freedom Lift under item 2 were not worth a price premium
of 30 percent. We do not think that the fact that in one instance the
contracting officer concluded that the technical advantages of a
higher-rated product were worth a higher price, while in another instance
concluding that they were not, demonstrates inconsistent treatment on her
part; it simply demonstrates that the tradeoff considerations in the two
cases were distinct.
To the extent that the protester is taking issue with the contracting
officer's judgment as to which proposal represented the best value under
item 2, the propriety of a price/technical tradeoff decision turns not on
the difference in the technical scores or ratings per se, but on whether
the selection official's judgment concerning the significance of the
difference was reasonable and adequately justified in light of the RFP's
evaluation scheme. Johnson Controls World Servs., Inc., B-289942,
B-289942.2, May 24, 2002, 2002 CPD para. 88 at 6. Here, while the
solicitation provided that non-price factors would be somewhat more
important than price in the determination of best value, we think that it
was neither unreasonable nor inconsistent with the solicitation for the
contracting officer to determine that what she regarded as the slight
technical advantage of Freedom Lift's proposal was not worth a 30 percent
increase in price.
The protester further argues that Bruno's offer for line items 5 and 7
should have been rejected as technically unacceptable because the lift
that Bruno proposed in response to both items failed to comply with the
requirement for a weight capacity of 350 pounds. In this connection, the
protester contends that the lift proposed by Bruno has a rated weight
capacity of only 300 pounds when installed in many models of minivan.
As relevant here, the RFP provides as follows:
ITEM 5: Interior Power Operated Lift for Scooters - #Hoist System (Lift
installed in bed of pickup truck or interior [of] a van).
The power assisted scooter hoist lift, is suitable for the patient
and/or caregiver who cannot independently safely load or unload a
scooter.
o Min 85 lbs weight capacity; Max 350 lb weight capacity
. . . . .
ITEM 7: Interior Power Operated Lift for Power Chairs - # Hoist System
(Lift installed in bed of pickup truck or interior [of] a van).
The power assisted wheelchair hoist lift, is suitable for the patient,
and/or caregiver who cannot independently safely load or unload a power
chair.
o Min 87 lbs weight capacity; Max 350 lb weight capacity
RFP amend. 8, at 5.
The agency maintains that the specifications pertaining to weight capacity
required merely that the lift be capable of lifting 350 pounds, not that
it be capable of lifting 350 pounds on every vehicle. According to the VA,
the product literature that Bruno submitted in connection with line items
5 and 7 demonstrated compliance with this requirement by describing the
lift's rated weight capacity as 400 pounds.[6] The agency contends that
its interpretation of the specification is supported by language in the
RFP advising that if a vehicle cannot accommodate a lift with a weight
capacity of 350 pounds, the lift should not be installed.[7] The VA
further argues that even if it were reasonable to interpret the
specification as requiring that the lift be capable of lifting 350 pounds
on every vehicle, Freedom Lift's own descriptive literature failed to
demonstrate compliance with such a requirement, and thus the protester
suffered no prejudice as a result of any waiver of the requirement by the
agency on behalf of Bruno. The agency cites as support for its position an
excerpt from Freedom Lift's technical data, which provides that the
proposed model "[a]dapts to most mini-vans, full sized vans, SUVs and
pick-up trucks." Agency Supplemental Reply at 10. According to the VA,
this statement implicitly recognizes that the lift cannot be used in all
minivans.
In response, Freedom Lift concedes that its lift is not capable of lifting
350 pounds on every vehicle, but argues that the specification should not
be read as imposing such a requirement; rather, the protester maintains,
the specification should be read as requiring that the lift be capable of
lifting 350 pounds on the majority of vehicles owned by mobility-impaired
veterans. The protester contends that its lift meets this standard,
whereas Bruno's does not. Freedom Lift argues in this regard that due to
its design, Bruno's lift is capable of lifting only 300 pounds in many
minivans, which are the preferred vehicle of mobility-impaired veterans.
To the extent that the protester is arguing that the RFP required
compliance with the weight capacity specification in the majority of, but
not in all, applications, this interpretation simply is not reasonable,
given that the solicitation contained no language indicating that
compliance was required in the majority--or, in fact, in any specific
percentage--of vehicles. Further, while we fail to see how the agency can
achieve its stated goal of acquiring "the best lift that would be suitable
for the largest number of veterans," Declaration of the Technical Panel
Chairperson at 2, without making any attempt to assess the percentage of
veteran vehicles in which a proposed lift would be capable of achieving
the agency's stated minimum requirement pertaining to weight capacity, the
fact is that the RFP failed to provide for the evaluation of proposals on
that basis. Accordingly, given that the RFP in effect was silent as to the
conditions under which weight capacity was to be assessed--i.e., the RFP
set out no parameters for measuring compliance with the weight capacity
requirements--we cannot say that it was unreasonable for the agency to
conclude that Bruno's (as well as the protester's) proposed lifts meet the
specifications at issue, although neither company's products apparently
are suitable for all types of vehicles used by mobility-impaired veterans.
The protest is denied.
Gary L. Kepplinger
General Counsel
------------------------
[1] While Freedom Lift protested the award of line item 8 in addition to
the above items in an agency-level protest that it pursued prior to
protesting to our Office, we did not consider its protest to our Office to
raise an objection to the award of item 8. The agency also interpreted the
protest as failing to raise an objection to the award of item 8, noting in
its report that "there does not appear to be any challenge to line item
8," Agency Report at 2, a position that the protester did not take issue
with or attempt to rebut in its comments on the report. To the extent that
the protester raised arguments regarding the award of item 8 in its
January 12, 2007 submission to our Office, we regard the arguments as
untimely because they are premised on information that was known to the
protester at the time it filed its initial protest with us on October 20,
2006 (i.e., that the evaluators had failed to consider the automatic lock
feature of its product). See Bid Protest Regulations, 4 C.F.R. sect.
21.2(a)(2) (2006). We have included some information regarding the award
under item 8 in this decision because it is relevant to the argument
raised by the protester regarding the award under item 2.
[2] The agency explains in its report that it did not intend the reference
to a maximum weight capacity of 350 pounds to limit the amount that the
device could lift to 350 pounds; rather, it intended to furnish notice
that the lift had to be capable of lifting 350 pounds. Agency Report at 4
n.3. Neither the protester nor the intervenor has argued that it had a
contrary understanding of the requirement.
[3] According to the Price Negotiation Memorandum, the source selection
plan assigned the above factors the following weights: technical
evaluation--45 percent; price--40 percent; past performance--10 percent;
and SDB participation--5 percent. Price Negotiation Memorandum at 3.
[4] The only difference between the ratings and prices received for items
5 and 7 was [deleted] total evaluated price. As noted above, its total
evaluated price for item 5 was $69,273,376; its total evaluated price for
item 7, in contrast, was $72,121,630.
[5] A sixth vendor's offer for item 8 was rejected without further
consideration after its lift received a rating of poor under the safety
and stability factor.
[6] We note that Bruno's product literature actually described the rated
weight capacity of the lift offered as "400 lbs. (181 kgs.) Rating
dependent on vehicle." Agency Report, exhs. 9 and 10.
[7] The language to which the agency refers is as follows:
1) There have been numerous clarification questions and suggestions
concerning weight capacity of the lifts and the required maximum
capacity (350 lbs) would violate various guidelines. It is the VA's
position that for the following lifts: Rear Exterior & Interior Lifts,
maximum weight capacity will stay at 350 lbs. The VA wishes to procure
lifts that can be used with all contracted mobility devices. If a
vehicle cannot accommodate the 350 lb lift then it should not be
installed. For lifts that do not fit into the parameters covered in this
contract there is a waiver process. If this maximum violates any known
guidelines, put the violation in writing and submit it (via e-mail).
RFP amend. 7, at 2. In our view, this language, while far from clear,
appears to reflect the agency's recognition that any particular vehicle
owned or used by a particular veteran may not, because of its condition,
accommodate a particular lift. Thus, in this limited sense only, the
language supports the agency's position that lifts meeting the weight
capacity requirements must be capable of installation only in vehicles
that can accommodate the lifts.