TITLE: B-298772.2, Freedom Lift Corporation, January 25, 2007
BNUMBER: B-298772.2
DATE: January 25, 2007
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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.