TITLE: B-310230, Sunrise Medical HHG, Inc., December 12, 2007
BNUMBER: B-310230
DATE: December 12, 2007
******************************************************
B-310230, Sunrise Medical HHG, Inc., December 12, 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: Sunrise Medical HHG, Inc.

   File: B-310230

   Date: December 12, 2007

   Leigh T. Hansson, Esq., Gregory S. Jacobs, Esq., and Steven D. Tibbets,
   Esq., Reed Smith LLP, for the protester.

   Edward O. Patton, Esq., Mansour, Gavin, Gerlack & Manos Co., LPA, for
   Invacare Corp., an intervenor.

   Melbourne A. Noel, Esq., Department of Veterans Affairs, for the agency.

   Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest is denied where the agency's evaluation of offerors' technical
   proposals and past performance were either reasonable or did not prejudice
   the protester.

   2. Protest is denied where agency reasonably did not accept protester's
   late proposal submission because protester was not the "otherwise
   successful offeror."

   DECISION

   Sunrise Medical HHG, Inc. protests the award of a contract to Invacare
   Corp. under request for proposals (RFP) No. VA-797-NC-06-RP-0001, issued
   by the Department of Veterans Affairs (VA) for provision of manual
   wheelchairs. Sunrise contends that the VA unreasonably evaluated offerors'
   technical and past performance proposals, and that the agency improperly
   refused to accept the protester's submission of a late proposal
   modification that lowered its price.

   We deny the protest.

   BACKGROUND

   The RFP sought proposals to provide manual wheelchairs and accessories for
   the VA's Prosthetic Clinical Management Program. The RFP anticipated award
   of a contract with a 1-year base term, and four 1-year options. Offerors
   were advised that award would be made to the responsible offeror whose
   proposal was "most advantageous to the Government, price and other factors
   considered." RFP at 46. The RFP identified four factors for consideration
   in the award decision, which were listed in decreasing order of importance
   as follows: technical, price, quality/past performance, and small
   disadvantaged business (SDB) participation. Id. Within the technical
   factor, the following subfactors were identified: quality of
   materials/design and workmanship, wheelchair performance, portability,
   test results in compliance with wheelchair standards issued by the
   American National Standards Institute and Rehabilitation Engineering &
   Assistance Technology Society of North America (ANSI/RESNA), and warranty
   period. Id. at 46. The first two technical subfactors were of equal and
   greatest importance, with the remaining subfactors listed in decreasing
   order of importance. Id.

   The agency received five proposals by the August 17, 2006 due date,
   including, as relevant here, a proposal from Invacare for its "Patriot
   Plus" wheelchair model, and proposals from Sunrise for its "Sunrise
   Quickie 2" (Q2) and "Sunrise LXE" models.

   On December 29, 2006, the agency issued RFP amendment 7, requesting that
   offerors agree to extend their proposed prices through March 30, 2007. RFP
   amend. 7, at 1. Sunrise acknowledged the amendment, but stated that "not
   only will we hold the original price but we are also submitting reduced
   pricing." Agency Report (AR), Tab 12, Letter from Sunrise to the
   Contracting Officer (CO), Jan. 11, 2007, at 1. Sunrise stated that it
   believed that the agency could accept the revised proposal because a
   Federal Acquisition Regulation (FAR) clause incorporated into the RFP
   permitted such submissions. Id. This clause, Instructions to
   Offerors--Commercial Items, states that "a late modification of an
   otherwise successful offer, that makes its terms more favorable to the
   Government, will be considered at any time it is received and may be
   accepted." RFP at 37; FAR sect. 52.212-1(f)(2)(ii). The VA, however, did
   not consider Sunrise's proposal modification in its evaluation of
   offerors' proposals because it was submitted after the proposal due date
   and Sunrise was not considered by the agency to be the otherwise
   successful offeror. AR, Tab 9B, Price Negotiation Memorandum, at 29; CO
   Statement at 5.

   As relevant to the protest, the VA evaluated the offerors' test data
   demonstrating their compliance with standards promulgated by ANSI/RESNA, a
   national testing standards organization. The VA rated the Sunrise LXE
   model test data under the AMSI/RESNA subfactor as "poor," based on the
   following evaluation:

     Testing appears performed and passed. The 11 year old testing report was
     unsigned. All testing performed was done by Sunrise QA personnel
     (In-house vs. independent lab) which is acceptable but preferred method
     of testing would be by independent lab which would have resulted in a
     higher score. 11 year old report calls into question whether the current
     durability of the LXE can be meaningfully authenticated by model built
     this far in the past.

   AR, Tab 9B, Price Negotiation Memorandum, at 9.

   The agency rated the Sunrise Q2 model test data under the AMSI/RESNA
   subfactor as "acceptable," based on the following evaluation:

     Testing appears performed and passed. Six year old unsigned report was
     submitted. Based on serial numbers, 4 to 5 chairs were tested before
     drum and curb drop fatigue tests were passed. All testing performed was
     done by Sunrise QA personnel (In-house vs. independent lab) which is
     acceptable but preferred method of testing would be by independent lab
     which would have resulted in a higher score.

   Id. at 7.

   The agency rated the Invacare Patriot Plus model test data under the
   AMSI/RESNA subfactor as "good," based on the following evaluation:

     Testing appears performed and passed. 1 1/2 year old testing report with
     signature was submitted. All testing performed was done by Invacare QA
     personnel (In-house vs. independent lab) which is acceptable but
     preferred method of testing would be by independent lab which would have
     resulted in a higher score but because the report was signed Invacare
     received a rating higher than acceptable.

   Id. at 11.

   Also, as relevant to the protest, offerors were required to submit 10 past
   performance references, representing an offeror's highest sales of
   wheelchairs to VA medical centers for the prior 36 months. RFP at 40.
   Invacare submitted 10 past performance references, and the CO sent surveys
   to all of the references. AR, Tab 9B, Price Negotiation Memorandum, at 20.
   Despite three requests to complete the surveys, the CO did not receive any
   responses from Invacare's references. Id. The CO subsequently contacted
   program managers at the VA medical centers to request return of the
   surveys, and eventually received three completed surveys. Id. These
   surveys provided Invacare one overall rating of "very good," and two
   ratings of "excellent." Id. Based on these responses, the VA rated
   Invacare's past performance as "excellent." Id.

   The VA's final evaluation of the offerors' proposals was as follows:

   +------------------------------------------------------------------------+
   |                                 | SUNRISE Q2 |SUNRISE LXE |  INVACARE  |
   |---------------------------------+------------+------------+------------|
   |TECHNICAL                        | ACCEPTABLE | ACCEPTABLE |    GOOD    |
   |---------------------------------+------------+------------+------------|
   |-- Quality Design and Workmanship| Acceptable | Acceptable |    Good    |
   |---------------------------------+------------+------------+------------|
   |-- Performance                   |    Good    | Acceptable |    Good    |
   |---------------------------------+------------+------------+------------|
   |-- Portability                   | Acceptable | Acceptable | Acceptable |
   |---------------------------------+------------+------------+------------|
   |-- ANSI/RESNA Testing            | Acceptable |    Poor    |    Good    |
   |---------------------------------+------------+------------+------------|
   |-- Warranty                      |    Good    |    Good    | Acceptable |
   |---------------------------------+------------+------------+------------|
   |QUALITY/PAST PERFORMANCE         | VERY GOOD  | VERY GOOD  | EXCELLENT  |
   |---------------------------------+------------+------------+------------|
   |SDB PARTICIPATION                | ACCEPTABLE | ACCEPTABLE | EXCELLENT  |
   |---------------------------------+------------+------------+------------|
   |PRICE                            |$17,778,402 |$14,535,189 |$14,196,220 |
   +------------------------------------------------------------------------+

   AR, Tab 9B, Price Negotiation Memorandum, at 5, 14, 16, 18, 23.[1]

   Additionally, the CO noted in her responsibility determination that a Dunn
   and Bradstreet (D&B) report regarding Invacare identified "8 pending
   lawsuits against Invacare," and that "4 of these are employee actions and
   4 for product liability." Id. at 30. That report, however, did not address
   the Invacare product offered for the procurement, nor did it indicate any
   judgments against Invacare. Supplemental (Supp.) AR at 8. The CO's
   responsibility determination reviewed the information in the report, and
   concluded that the information did not "present an unacceptable risk to
   the government." AR, Tab 9B, Price Negotiation Memorandum, at 30.

   Based on the evaluation of the offerors' proposals, the CO, who was also
   the source selection authority, selected Invacare's proposal for award.
   Id. at 29. The CO determined that Invacare's proposal was technically
   superior to Sunrise's proposal; in light of Invacare's lower proposed
   price, the CO concluded that no price-technical tradeoff was required.

   The agency advised Sunrise on August 17, 2007 that it had not been
   selected for award. Sunrise requested a debriefing, which was provided in
   writing on August 28, 2007. AR, Tab 5, Sunrise Debriefing Letter, Aug. 28,
   2007. This protest followed.

   DISCUSSION

   Sunrise contends that the VA's award determination was flawed for three
   reasons: (1) the agency unreasonably evaluated Invacare's past
   performance, (2) the agency improperly refused to accept Sunrise's late
   proposal submission, which would have lowered its proposed price, and (3)
   the agency unreasonably evaluated Sunrise's ANSI/RESNA test results for
   both of its proposed wheelchair models.[2] For the reasons discussed
   below, we conclude that none of the protester's arguments provides a basis
   to sustain the protest.

   As a general matter, the evaluation of an offeror's proposal is a matter
   within the agency's discretion, since the agency is responsible for
   defining its needs and the best method for accommodating them. U.S.
   Textiles, Inc., B-289685.3, Dec. 19, 2002, 2002 CPD para. 218 at 2. In
   reviewing a protest against an agency's evaluation of proposals, including
   technical and past performance evaluations, our Office will examine the
   record to determine whether the agency's judgment was reasonable and
   consistent with the stated evaluation criteria and applicable procurement
   statutes and regulations. See Shumaker Trucking & Excavating Contractors,
   Inc., B-290732, Sept. 25, 2002, 2002 CPD para. 169 at 3. A protester's
   mere disagreement with the agency's judgment in its determination of the
   relative merit of competing proposals does not establish that the
   evaluation was unreasonable. C. Lawrence Constr. Co., Inc., B-287066, Mar.
   30, 2001, 2001 CPD para. 70 at 4.

   Past Performance Evaluation

   Sunrise raises two arguments challenging the reasonableness of the VA's
   evaluation of Invacare's past performance. First, the protester contends
   that because the agency received survey responses from only 3 of the 10
   past performance references identified by Invacare, the agency lacked a
   basis to rate the awardee as "excellent" under this evaluation factor.

   There is no legal requirement, however, that an agency consider all
   references in evaluating an offeror's past performance. ITS Servs., Inc.,
   B-298941, B-298941.2, Jan. 10, 2007, 2007 CPD para. 23 at 7 n.11. Rather,
   an agency is only required to make a reasonable effort to contact a
   reference, and where that effort proves unsuccessful, it is
   unobjectionable for the agency to proceed with its evaluation without
   benefit of that reference's input. Universal Bldg. Maint., Inc., B-282456,
   July 15, 1999, 99-2 CPD para. 32 at 8 n.1. Furthermore, absent specific
   solicitation language, not present here, there is no minimum number of
   past performance survey responses that an agency must receive relative to
   the number of references identified by the offeror, nor is there any
   requirement that offerors' have the same number of references to receive
   equal ratings. See Paragon Sys., Inc., B-299548.2, Sept. 10, 2007, 2007
   CPD para. 178 at 11; Data Mgmt. Servs. Joint Venture, B-299702,
   B-299702.2, July 24, 2007, 2007 CPD para. 139 at 8.

   Here, the VA attempted to contact all 10 references at least three times.
   AR, Tab 9B, Price Negotiation Memorandum, at 20. On this record, we
   conclude that the agency made a reasonable effort to contact Invacare's
   references, and that the number of surveys received did not preclude the
   agency from rating Invacare's past performance as "excellent," based on
   survey information provided by the references that responded.

   Second, Sunrise contends that the VA unreasonably failed to consider
   information concerning lawsuits filed against Invacare in the evaluation
   of that firm's past performance. As discussed above, the CO reviewed as
   part of her responsibility determination a D&B report indicating that
   Invacare was the subject of four product liability suits. Sunrise also
   contends that certain media reports indicate that Invacare has settled
   product liability claims regarding an electric wheelchair and that
   lawsuits are pending against the firm regarding other products.[3]

   The evaluation of past performance, including the agency's determination
   of the relevance and scope of an offeror's performance history to be
   considered, is a matter of agency discretion that we will not find
   improper unless unreasonable, or inconsistent with the solicitation
   criteria or procurement statute or regulation. Standard Comms., Inc.,
   B-296972, Nov. 1, 2005, 2005 CPD para. 200 at 5. Here, the agency argues
   that the information in the D&B report and news articles cited by Sunrise
   concerning the product liability lawsuits against Invacare did not concern
   the product offered by that firm for this procurement. The agency also
   notes that the information cited does not indicate any court judgments
   against Invacare holding it responsible for problems with its products.[4]
   Supp. AR at 8. The record supports the agency's view. Furthermore, the
   agency did consider this information in its assessment of Invacare's
   responsibility, but concluded that the information did not represent "an
   unacceptable risk to the government." AR, Tab 9B, Price Negotiation
   Memorandum, at 30. On this record, we find no basis to object to the
   agency's actions.[5]

   Late Proposal Submission

   Sunrise argues that the agency should have accepted its late proposal
   submission in January 2007, which lowered the protester's proposed price
   for both of its proposed wheelchair models. In particular, Sunrise
   contends that its modified price for the LXE model would have been lower
   than Invacare's proposed wheelchair, and thus eliminates the VA's
   rationale for award, i.e., that Invacare's proposal was lower-priced and
   more highly rated technically than either of Sunrise's proposals. As
   discussed above, the solicitation included the FAR clause, Instructions to
   Offerors--Commercial Items, which addresses the submission of late
   proposals as follows:

     (2)(i) Any offer, modification, revision, or withdrawal of an offer
     received at the Government office designated in the solicitation after
     the exact time specified for receipt of offers is "late" and will not be
     considered . . .

     (ii) However, a late modification of an otherwise successful offer, that
     makes its terms more favorable to the Government, will be considered at
     any time it is received and may be accepted.

   FAR sect. 52.212-1(f).[6]

   The protester contends that because its late proposal submission lowered
   its price below that proposed by Invacare, Sunrise should be considered an
   "otherwise successful offeror" from whom the agency should have accepted a
   late proposal. We disagree.

   Under negotiated procurements, the FAR provides generally that a proposal
   received after the time set for receipt shall not be considered. FAR sect.
   15.208(b)(1). Our Office has long held that the late proposal rule
   alleviates confusion, ensures equal treatment of offerors, and prevents
   one offeror from obtaining a competitive advantage as a result of being
   permitted to submit a proposal later than the deadline set for all
   competitors. Tishman Constr. Corp., B-292097, May 29, 2003, 2003 CPD para.
   94 at 3. The FAR provides a limited exception for receipt of late
   proposals that are submitted by the "otherwise successful offeror" and
   which provide more favorable terms. This exception to the general "late is
   late" rule is intended to allow the government to receive the benefit of a
   more advantageous proposal from the offeror who has been selected for
   award, without offending the general rule that offerors must be treated
   equally.

   With regard to the protester's arguments, an offeror cannot make itself
   the "otherwise successful offeror" by submitting a late proposal
   modification; instead the offeror must already be the offeror in line for
   award prior to the time the late proposal modification is submitted.
   Phyllis M. Chestang, B-298394.3, Nov. 20, 2006, 2006 CPD para. 176 at 5
   n.3. In this regard, an offeror cannot avail itself of the late proposal
   submission provision where the agency has not already identified an
   "otherwise successful offeror." Global Analytic Info. Tech. Servs., Inc.,
   B-298840.2, Feb. 6, 2007, 2007 CPD para. 57 at 5-6.

   Here, the agency evaluated the timely-submitted proposals and selected
   Invacare, and not Sunrise, for award; therefore, the limited exception to
   the FAR's general rule for timely submission and consideration of
   proposals does not apply.[7] On this record, we conclude that the agency's
   determination not to accept Sunrise's late proposal modification was
   reasonable.

   ANSI/RESNA Test Data

   Sunrise raises three arguments that the VA's evaluation of its ANSI/RESNA
   test data was unreasonable. Sunrise's proposal for its LXE model
   wheelchair received a rating of "poor" under this subfactor, and its Q2
   model received a rating of "acceptable." AR, Tab 9B, Price Negotiation
   Memorandum, at 5. As discussed below, we find that the first argument
   lacks merit, and that the second and third arguments are untimely because
   they were disclosed to Sunrise at its debriefing but were not challenged
   until the protester filed its comments on the agency report.

   First, Sunrise contends that the agency unreasonably determined that the
   test data for both its proposed models had a weakness because the tests
   were performed in-house by Sunrise personnel, rather than an outside
   party. The protester argues that the solicitation did not disclose that
   the agency would consider this factor in its evaluation. As the agency
   notes, however, this criticism was leveled at the test data submitted by
   both Sunrise and Invacare. AR, Tab 9B, Price Negotiation Memorandum, at
   11. Thus, even if the agency's evaluation was not consistent with the
   solicitation, there was no possibility on this record of prejudice to
   Sunrise because the agency assessed the same weakness to Invacare's
   proposal.

   To succeed in its protest, the protester must demonstrate not only that
   the agency failed to evaluate proposals in accordance with the
   solicitation and applicable regulations, but also that the failure could
   have materially affected the outcome of the competition. McDonald Bradley,
   B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see Statistica, Inc. v.
   Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996). Because Sunrise and
   Invacare had the same weakness, Sunrise cannot demonstrate that, even if
   the agency should not have assessed the weakness for in-house testing,
   Sunrise's competitive position would have been improved vis-`a-vis
   Invacare. See NCR Gov't Sys. LLC, B-297959, B-297959.2, May 12, 2006, 2006
   CPD para. 82 at 14.

   The second and third arguments raised by Sunrise are that the agency
   unreasonably found weaknesses in Sunrise's test data based on the age of
   the test reports, and because the test reports were not signed. The VA and
   the intervenor argue, however, that both of these arguments are untimely
   because although the debriefing provided by the agency disclosed these
   issues, the protester did not raise them until it filed supplemental
   protest grounds in its comments on the agency report. In this regard,
   Sunrise's initial protest challenged only the agency's conclusions
   regarding the value of the in-house testing approach; the protester raised
   the second and third arguments for the first time in its comments on the
   agency report. Protest at 4-5; Protester's Comments on the AR at 2-8. We
   agree that these two supplemental protest grounds are untimely raised.

   The written debriefing provided by the agency clearly identified the two
   grounds of protest that the protester raised for the first time in its
   comments on the agency report, as follows:

     [Sunrise Q2] The weakness and/or deficiencies found under the factor of
     ANSI/RESNA: Six year old unsigned report was submitted. Based on serial
     numbers, 4 to 5 chairs were tested before drum and curb drop fatigue
     tests were passed. All testing preformed was done by Sunrise QA
     personnel (In-house vs. independent lab) which is acceptable but
     preferred method of testing would be by independent lab which would have
     resulted in a higher score.

     [Sunrise LXE] The weakness and/or deficiencies found under the factor of
     ANSI/RESNA: 11 year old testing report was submitted. All testing
     performed was done by Sunrise QA personnel (In-house vs. independent
     lab) which is acceptable but preferred method of testing would be by
     independent lab. 11 year old report calls into question whether the
     current durability of the LXE can be meaningfully authenticated by model
     tested this far in the past.

   AR, Tab 5, Sunrise Debriefing Letter, Aug. 28, 2007, at 2-3.

   Our Bid Protest Regulations require protests based on other than
   solicitation improprieties to be filed within 10 days of when the
   protester knew or should have known its bases of protest. Bid Protest
   Regulations, 4 C.F.R. sect. 21.2(a)(2). Where a protester initially files
   a timely protest, and later supplements it with independent grounds of
   protest, the later-raised allegations must independently satisfy the
   timeliness requirements, since our Regulations do not contemplate the
   unwarranted piecemeal presentation or development of protest issues.
   University Research Co., LLC, B-294358.8 et al., Apr. 6, 2006, 2006 CPD
   para. 66 at 16. These two supplemental arguments are clearly distinct from
   the protester's initial argument that the agency unreasonably determined
   that the in-house testing was a weakness. On this record, we conclude that
   the two protest grounds regarding the age of Sunrise's ANSI/RESNA test
   results and the lack of signature on the Sunrise Q2 model are untimely.[8]

   Furthermore, even if we were to agree with the protester that the
   signature and test date issues were meritorious, the record does not
   demonstrate that Sunrise was prejudiced by the agency's evaluation of the
   test results. In this regard, eliminating all three weaknesses assessed
   with regard to Sunrise's ANSI/RESNA test results would have resulted in a
   similar rating to Invacare. None of the other evaluation ratings would
   have been affected, and thus Invacare's proposal still would have higher
   ratings than Sunrise's proposal under the more heavily-weighted subfactors
   of quality design and workmanship and performance, and Sunrise's and
   Invacare's proposals would remain equal under the portability subfactor.
   AR, Tab 9B, Price Negotiation Memorandum, at 5. Further, even if Sunrise
   were rated equally to Invacare under the technical evaluation factor,
   Invacare's proposal remains more highly rated under the Past Performance
   and SDB participation evaluation Factors, while also remaining
   lower-priced. On this record, we find that there was no possibility of
   prejudice to Sunrise by the VA's actions.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The agency used an evaluation scheme of exceptional, good, acceptable,
   and poor. Id. at 4.

   [2] The protester also argued in its protest that the VA improperly
   determined that the Sunrise wheelchair components were "flimsy," and that
   the agency spent more time evaluating Sunrise's products as compared to
   Invacare's products. Protest at 5. Although the VA addressed these
   allegations in its report on the protest, Sunrise did not comment on the
   agency's report regarding this issue. Where, as here, an agency provides a
   detailed response to a protester's assertions and the protester either
   does not respond to the agency's position or provides a response that
   merely references or restates the original allegation without
   substantively rebutting the agency's position, we deem the
   initially-raised arguments abandoned. Citrus College; KEI Parsons, Inc.,
   B-293543 et al., Apr. 9, 2004, 2004 CPD para. 104 at 8 n.4. We conclude
   that Sunrise has abandoned this argument regarding the VA's evaluation of
   its proposal and therefore we will not consider it further.

   [3] Although the protester raised this argument as a supplemental protest
   ground in its comments on the agency report, we consider it timely filed
   to the extent that it challenges the way in which the VA chose to evaluate
   information regarding Invacare, i.e., the decision to consider the product
   liability suits in the context of responsibility, rather than past
   performance.

   [4] The protester notes the solicitation stated that the VA "may use
   information from the public domain" in the evaluation of offerors' past
   performance. RFP at 47. This statement, however, does not require the
   agency to do so, nor does it change the agency's discretion to consider
   the relevance of past performance information.

   [5] Sunrise also argues that the VA should have considered information
   disclosed in Invacare's Securities and Exchange Commission (SEC) annual
   filings concerning an investigation by the SEC of what the protester
   characterizes a "well-known promotional and rebate programs maintained by
   it." Sunrise, however, does not clearly explain why an investigation by
   SEC into rebate allegations is relevant to evaluation of Invacare's past
   performance. In this regard, the RFP stated that the agency would evaluate
   an offeror's record as it pertains to the production of wheelchairs, e.g.,
   workmanship and conformance to specifications. RFP at 47. In any event,
   this protest allegation was filed as a supplemental ground of protest in
   Sunrise's comments on the agency report, and is thus untimely because the
   basis for the protester's knowledge, i.e., the publicly-available SEC
   filings, was available to the protester at the time its original protest
   was filed. Our Bid Protest Regulations applicable here require protests
   based on other than solicitation improprieties to be filed within 10 days
   of when the protester knew or should have known its bases of protest. Bid
   Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2007).

   [6] The clause at FAR sect. 52.212-1(f)(2)(ii) contains nearly identical
   language to the late proposal provisions at FAR sect. 15.208, which is
   applicable to negotiated procurements. Although the cases cited herein
   primarily address the provision in FAR part 15, we consider the two FAR
   provisions to be interchangeable for purposes of this protest allegation.

   [7] Sunrise submitted its late proposal modification on January 11, 2007,
   in conjunction with the agency's request in RFP amendment 7 to extend
   offeror's pricing. The amendment, however, requested that offerors confirm
   their existing prices; it did not invite or permit offerors to submit
   revised prices. See RFP amend. 7, at 1.

   [8] In its response to these allegations, the agency also notes that its
   criticism of the age of the Sunrise LXE 11-year-old test data was based on
   the fact that the ANSI/RESNA test standards were revised in 1998, thereby
   calling into question the validity of the tests conducted under the
   earlier test standards. Supp AR at 2-3; Decl. of VA Engineer at 2.