Bid Protest Weekly | BID PROTEST LAWYERS

Sterling Medical Associates, Inc., B-406729, B-406729.2, August 8, 2012

Link: GAO Decision

Protestor: Sterling Medical Associates, Inc.

Agency: Department of Veterans Affairs

Disposition: Protest Denied.


GAO Digest:

Protest of the exclusion of the protester’s proposal from the competitive range is denied where an agency reasonably found that the protester’s proposal did not have a reasonable possibility of being selected for award.

General Counsel PC Highlight:

Sterling Medical Associates, Inc. protested the exclusion of its proposal from the competitive range under an RFP for healthcare services for Community-Based Outpatient Clinics (CBOCs) in various locations in Florida. Award was to be made on a best value basis, considering experience and staffing, coordination and continuity of care, past performance, subcontracting plan, and price. The RFP instructed offerors to provide a monthly capitation rate, equaling the unit cost per veteran inclusive of all services. For each CLIN, the RFP identified an estimated quantity of visits; total CLIN price would be determined by multiplying offerors’ monthly capitation rate by estimated quantity and by 12 months. Sterling was eliminated from the competitive range because the CO concluded that its proposal had no reasonable possibility of receiving award, given its significantly higher price as compared to the IGE.

The GAO first disagreed with Sterling’s belief that the agency’s evaluation of proposals was inadequately documented, pointing out that the evaluators’ judgment as to the merits, along with the strengths and weaknesses under the evaluation factors and subfactors, was well-documented for each proposal. The GAO also found reasonable the agency’s marginal evaluation of Sterling’s past performance, based on Sterling’s failure to provide three past performance surveys as required by the RFP. The GAO found no merit to the argument that the agency had converted the procurement to a lowest-priced, technically-acceptable award, finding reasonable the agency’s conclusion that Sterling’s price was substantially higher than other offerors and had no reasonably possibility of receiving award.

The establishment of a competitive range is a matter of agency discretion, and the GAO will not question the elimination of proposals from the competitive range so long as the evaluation of those proposals was reasonable. Eliminated offerors should always request a preaward debriefing so as to understand the reasoning behind their elimination from the procurement. If an offeror believes their elimination was unreasonable based on an evaluation which did not comply with the terms of the solicitation, a preaward protest may lead to corrective action after which their proposal will be considered for award. However, protestors must always remember that corrective action will not necessarily lead to award. It may merely give the protestor another chance to be considered in the tradeoff decision.