TITLE: B-298975, Stewart Distributors, January 17, 2007
BNUMBER: B-298975
DATE: January 17, 2007
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B-298975, Stewart Distributors, January 17, 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: Stewart Distributors
File: B-298975
Date: January 17, 2007
James B. Lieber, Esq., and Thomas M. Huber, Esq., Lieber & Hammer, PC, for
the protester.
Phillipa L. Anderson, Esq., Dennis Foley, Esq., and Philip Kauffman, Esq.,
Department of Veterans Affairs, for the agency.
Linda C. Glass, Esq., and Glenn G. Wolcott, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly rejected proposal for bulk laundry/linen services as
technically unacceptable where proposal did not clearly indicate the
protester's intention to comply with the solicitation's quality standards.
DECISION
Stewart Distributors protests the rejection of its proposal and the award
of a contract to Balfurd, Inc. under request for proposals (RFP) No.
244-06-01362 REV issued by the Department of Veterans Affairs (VA) for
bulk laundry/linen services at the VA Medical Center in Pittsburgh,
Pennsylvania. Stewart contends that rejection of its proposal was
improper.
We deny the protest.
BACKGROUND
The RFP was issued on May 12, 2006 and contemplated award of a fixed-price
contract for a 1-year base period and three 1-year option periods. As
amended, the RFP provided for a "best value" award. The RFP listed the
following evaluation factors--past performance, technical/management
approach to performance, personnel, and price--and advised offerors that
past performance, technical/management, and personnel, when combined, were
significantly more important than price. The RFP also advised offerors
that the agency intended to evaluate offers and make award without
discussions, but reserved the right to conduct discussions if the
contracting officer determined that to be necessary. RFP at 90.
As noted above, the solicitation sought proposals to provide bulk
laundry/linen services for the VA Medical facility in Pittsburgh,
Pennsylvania, stating:
Contractor shall furnish all clean linen items, labor, equipment,
supervision, management, supplies, soiled linen carts and liners, bulk
delivery carts, transportation, and facilities . . . necessary to
perform complete and all-inclusive contractor owned/contractor operated
bulk laundry linens services for the Department of Veterans Affairs. . .
. All services are to be performed in accordance with standard industry
practices and quality control measures and all requirements herein.
RFP at 4.
More specifically, with regard to quality of performance, the solicitation
established an "Acceptable Quality Level" or "AQL" for each of various
aspects of contract performance; in this regard, the RFP expressly defined
AQL as "the maximum percent of defective work, or number of defects that
will be allowed before work is considered unsatisfactory." RFP at 31,
50-51. Specifically, under the heading "Performance Requirements Summary,"
the solicitation contained a table that identified various quality
standards applicable to various contract requirements. RFP at 50-51. For
example, the solicitation provided that the performance standard for
cleaning laundry was: "Laundry is clean, dry, free of lint and odor, spots
and stains removed." RFP at 50. Directly next to this standard the
solicitation provided that the "AQL Maximum Allowable Degree of Deviation"
is "5% per month." Id. Similarly, with regard to damaged items, the
solicitation established the following standard: "Laundered items are not
physically damaged due to improper processing or carelessness." Directly
next to this standard, the solicitation provided that the "AQL Maximum
Allowable Degree of Deviation" for this requirement was "2.5% per month."
RFP at 51.
Four proposals, including one submitted by Stewart, were submitted by the
August 4, 2006 closing time. In its proposal, Stewart provided a table
under the heading "Quality Standards," in which Stewart listed various
performance standards to be applied to particular items to be laundered.
Agency Report (AR), Tab 15, Stewart Technical Proposal,[1] at 37-39. With
regard to the solicitation requirements related to stained and damaged
items, Stewart's proposal contained quality standards that varied from,
and were less restrictive than, the standards established in the
solicitation. For example, with regard to items identified as "Patient
Gown," "Scrub," "Mattress Pad," "Bibs," "Adult Briefs," and "Bath Mats,"
Stewart's proposal stated: "No dark stains. Not more than one light stain,
no larger than a quarter."[2] Id.
Similarly, with regard to damage to (that is, holes in) "Pad/Briefs" and
"Adult Briefs," Stewart's proposal stated, "Cotton side: Not more than one
hole, no larger than a dime. No holes on the barrier side." Id. at 37-39.
Similarly, with regard to the item identified as "Thermo," Stewart's
proposal stated, "Not more than 2 holes, each no bigger than a quarter,"
id. at 38, and with regard to "Bath Mats," Stewart's proposal stated, "Not
more than one hole, no larger than a dime." Id. at 39.
Upon review and evaluation of Stewart's proposal, the agency concluded
that it did not offer to meet the performance requirements specified in
the solicitation; accordingly, the agency rejected Stewart's proposal as
technically unacceptable.[3] Upon evaluation of the proposal submitted by
Balfurd, next in line for award under the RFP award procedures, the agency
determined that it contained no deficiencies, proposed to meet the
solicitation's performance standards, and that its price was fair and
reasonable. Consequently, a contract was awarded to Balfurd in the amount
of $4,932,864. Stewart subsequently received a debriefing, after which,
this protest was filed.
DISCUSSION
Stewart argues that the agency misinterpreted its proposal and
unreasonably determined that it was technically unacceptable. We disagree.
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.
Here, as discussed above, the solicitation defined the acceptable level of
performance in terms of the maximum percent of defective work that will be
allowed. RFP, Performance Work Statement, at 31. More specifically, the
solicitation provided that "[l]aundry is clean, dry, free of lint and
odor, spots and stains removed," and that the acceptable level of
deviation from this standard was limited to "5% per month." Similarly,
with regard to damaged items, the solicitation's "Performance Standard"
specified that, "[l]aundered items are not physically damaged due to
improper processing or carelessness," and that the acceptable deviation
from this standard was limited to "2.5% per month." RFP at 50-51.
The agency concluded that, contrary to the solicitation's specified
requirements, Stewart's proposal effectively provided that virtually every
laundered item could permissibly contain holes and stains[4]--provided the
holes were limited in size and number to the alternative standards that
Stewart identified, and provided the stains were similarly limited in size
and number and/or were sufficiently "light." Accordingly, the agency
concluded that Stewart's proposal did not offer to meet the solicitation's
stated performance requirements.
Stewart complains that the agency should have interpreted the quality
standards identified in its proposal as applying only to the portion of
items that the solicitation permitted to deviate from the stated
requirements--that is, 5 percent per month with regard to stained items
and 2.5 percent per month with regard to damaged items. However, nothing
in its proposal advised the agency regarding this purported interpretation
and intent to comply with the solicitation's specified quality
standards.[5]
Here, Stewart's inclusion of quality standards that conflicted with the
solicitation's stated standards--even if viewed in a light most favorable
to Stewart--created an ambiguity regarding Stewart's intention to comply
with the RFP's requirements. Since the agency selected Balfurd's proposal
for award without discussions, as contemplated by the solicitation, the
agency properly rejected Stewart's proposal as technically unacceptable
for failure to clearly meet the solicitation's stated requirements. On the
record here, we have no basis to question the agency's actions.
Alternatively, Stewart protests that, because two other offerors'
proposals were similarly determined to be technically unacceptable, the
agency had an obligation to open discussions.[6] We disagree.
Where, as here, an RFP provides for award on the basis of initial
proposals without discussions, an agency may make award without
discussions, unless discussions are determined to be necessary. 41 U.S.C.
sect. 253b(d)(1)(B) (2000). An agency may dispense with discussions where
there is a reasonable basis to conclude that the proposal of the intended
awardee represents the best overall value to the government. See Sierra
Military Health Servs., Inc.; Aetna Gov't Health Plans, B-292780 et al.,
Dec. 5, 2003, 2004 CPD para. 55 at 6-7 n.5.
Here, as discussed above, the solicitation specifically defined the
performance standards and the maximum allowable degree of deviation from
those standards; accordingly, there was no ambiguity with regard to the
solicitation's requirements.[7] Further, the record shows that the agency
clearly had a reasonable basis to conclude that Balfurd's proposal
represented the best overall value to the government. That is, Balfurd
submitted a low-priced, technically acceptable proposal, that contained no
deficiencies requiring discussions. Accordingly, on this record, the
agency had no obligation to conduct discussions.
The protest is denied.
Gary L. Kepplinger
General Counsel
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[1] Stewart's technical proposal was prepared by its proposed
subcontractor, Clean Textile Systems, Inc. (CleanCare).
[2] Similarly, with regard to an item identified as "Thermo," Stewart's
proposal stated: "No dark stains. No more than two light stains, no larger
than 3 inches." Id. at 38. With regard to an item identified as
"Pad/Briefs," Stewart's proposal stated: "Not more than one light stain,
no larger than a quarter." Id.
[3] The agency similarly concluded that two other offerors' proposals
failed to comply with the solicitation's performance requirements and,
consistent with the action taken regarding Stewart's proposal, rejected
those proposals as technically unacceptable.
[4] With regard to a very limited number of items--specifically, items
identified as "Bath Towels," "Wash cloth," and "Baby"--Stewart's proposal
stated "No stains" and "No holes." Id. at 37-38.
[5] Stewart complains that its proposal contained a blanket assertion that
it would abide by the terms and conditions of the RFP; however such
statement is insufficient to supersede the specific conflicting provisions
of its proposal, discussed above. See, e.g., National Shower Express,
Inc.; Rickaby Fire Support, supra, (offeror is responsible for including
sufficient information in its proposal to establish compliance with
solicitation requirements, and blanket statements of compliance are
insufficient to meet this obligation).
[6] One of the other rejected proposals was submitted by CleanCare,
Stewart's proposed subcontractor, on CleanCare's own behalf.
[7] To the extent Stewart's protest is challenging the solicitation
provisions as being overly restrictive, its protest is not timely filed.
Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006).