Amcare Medical Services, Inc.

B-271595 Jul 11, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that agency improperly made award to firm submitting technically noncompliant offer is denied where protester has neither alleged nor demonstrated that agency's actions were prejudicial. Prejudice is an essential element of every viable protest. Where none is shown. General Accounting Office will not sustain a protest. Even where the agency's actions may have been improper. Protester is not an interested party to maintain that awardee acted in bad faith where another offeror would be in line for award should the protester's allegation prove correct and awardee be eliminated from the competition. Six proposals were received. Four of which were determined to be within the competitive range. View Decision Matter of: Amcare Medical Services, Inc. File: B-271595 Date: July 11, 1996 Protest that agency improperly made award to firm submitting technically noncompliant offer is denied where protester has neither alleged nor demonstrated that agency's actions were prejudicial; prejudice is an essential element of every viable protest, and where none is shown, General Accounting Office will not sustain a protest, even where the agency's actions may have been improper. Protester is not an interested party to maintain that awardee acted in bad faith where another offeror would be in line for award should the protester's allegation prove correct and awardee be eliminated from the competition. Attorneys DECISION Amcare Medical Services, Inc. protests the award of a contract to Nahatan Medical Services under request for proposals (RFP) No. 523-38-95, issued by the Department of Veterans Affairs (VA) for the acquisition of home oxygen services. Amcare challenges the award on several grounds. We deny the protest in part and dismiss it in part. The RFP called for offers to provide home oxygen services and provided for award on a best value basis. Six proposals were received, four of which were determined to be within the competitive range. After engaging in both technical and cost discussions with the competitive range offerors and receiving proposal revisions in response thereto, the agency solicited and received best and final offers (BAFO). [1] Based on the BAFO evaluation, Amcare's proposal was ranked third technically (with a technical score of 77.25 points) and was highest priced. Nahatan's proposal was ranked first technically (with a score of 91.5 points) and was the lowest priced. The proposal of a third offeror, NMC Homecare, was ranked second technically (with a score of 87 points), and was priced between Amcare's and Nahatan's. Based on these evaluation results, the VA made award to Nahatan as the firm submitting the proposal deemed to offer the best overall value to the government. TECHNICAL EVALUATION Amcare maintains that the agency misevaluated its technical proposal in several respects. The VA provided our Office a detailed report addressing each of Amcare's contentions regarding the technical evaluation, however, and Amcare provided no substantive response to the agency's position in its comments; it stated only that this was one of several issues that " . . . can be determined based upon the agency report and relevant documents. . . ." We have reviewed Amcare's arguments regarding the evaluation in light of the agency's explanation. As there is nothing on the face of the evaluation which brings the reasonableness of the agency's conclusions into question, and Amcare has not rebutted the agency's position, there is no basis for questioning the evaluation. See TRW, Inc.; Systems Research and Applications Corp., B-260968.2, et al., Aug. 14, 1995, 95-2 CPD para. 101. We therefore deny this aspect of Amcare's protest. [2] NONCOMPLIANCE WITH SPECIFICATIONS Amcare maintains that Nahatan's BAFO did not comply with the specifications in certain material respects and that the agency improperly allowed Nahatan, but not the other offerors, to submit a proposal based on noncompliant equipment. Amcare maintains that Nahatan offered a "liquid low loss" oxygen system rather than a "LINDE" liquid oxygen system or equal (as specified in the RFP) and also offered "M" size oxygen cylinders rather than the "E" and "H" size cylinders called for by the solicitation. The record (our Office conducted a hearing in connection with this issue) confirms that the agency made award based on Nahatan's alternate proposal for a "liquid low loss system," as Amcare alleges. However, prejudice is an essential element of every viable protest and where none is shown, our Office will not sustain a protest, even where the agency's actions may have been improper. IT Corp., B-258636, et al., Feb. 10, 1995, 95-1 CPD para. 78. At the conclusion of the hearing, the parties were asked to address prejudice in connection with this issue.