Apex Foot Health Industries, B-293088, January 23, 2004

B-293088 Jan 23, 2004 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Agency's decision to eliminate proposed diabetic socks from competition on basis that the seams on the socks were too prominent was based on medical judgments of evaluators with substantial expertise in the field. GAO will not question such medical judgments where there is no showing that product testing was unfairly administered. Will & Emery. Offerors were required to submit product samples. The evaluation was to consist of an initial determination of whether the offered items met the minimum requirements and. The specifications and evaluation factors were developed by a "sock workgroup" within VA's Prosthetic Clinical Management Program. Award was to be made. The RFP stated that the initial evaluation was to be "subjective. View Decision Apex Foot Health Industries, B-293088, January 23, 2004 * REDACTED DECISION DIGEST Attorneys DECISION Apex Foot Health Industries protests the rejection of three different diabetic socks it proposed in response to request for proposals (RFP) No. 797-NC-03-0024, issued by the Department of Veterans Affairs (VA) for diabetic socks. /1/ VA evaluated the socks as medically unacceptable for diabetic patients. We deny the protest. The RFP, issued as a small business set-aside on July 3, 2003, contemplated the award of a fixed-price requirements contract for a base year, with four 1-year options, for quantities of diabetic socks. Offerors were required to submit product samples. The evaluation was to consist of an initial determination of whether the offered items met the minimum requirements and, for those found acceptable, an evaluation under three factors, technical, price and quality/past performance, (listed in descending order of importance). The specifications and evaluation factors were developed by a "sock workgroup" within VA's Prosthetic Clinical Management Program. Award was to be made, without discussions, to the responsible offeror whose offer conforming to the solicitation would be most advantageous to the government, price and other factors considered. The RFP stated that the initial evaluation was to be "subjective," with "significant weight . . . given to actual performance of the socks during an evaluation at the National Acquisition Center," and noted that the "first and most important evaluation will be of the socks seams." /2/ RFP at 28. If the evaluation team determined that seams or creases of an offered sock would cause pressure or irritate the diabetic foot, the sock would be rejected without further evaluation. /3/ Id. The agency received 45 offers from 32 offerors, including the protester, which submitted offers for seven different socks. The three-member technical evaluation panel (TEP), which included two Doctors of Podiatry and a Chief of Prosthetics trained as an orthotist, evaluated each sock by visually inspecting them and then walking in them with shoes. AR, exh. 6, Declaration of TEP Chairperson, at 2. The TEP rejected three of Apex's offered socks under the initial evaluation based on the finding that they would cause pressure on or irritate the diabetic foot. /4/ Specifically, the TEP found that the seams on the various socks were "prominent" or "somewhat prominent," that the knots at the ends of seams were "prominent" or "too prominent," and that the heel seams were "too prominent" or "somewhat prominent." AR, exh. 10, Technical Evaluation Score Sheets, at 2, 6, 10. After VA notified Apex that the socks were rejected without further consideration, Apex filed an agency-level protest. That protest was denied, and Apex then filed this protest in our Office. Apex argues that the agency improperly evaluated the three socks, asserting that the socks have the feel of a seamless sock; they are designed and manufactured without seams or creases that would cause pressure on or irritation to the diabetic foot; [DELETED] and therefore no raised seam, Protest at 1, 7; and there are no heel seams because the material at the heel of the sock is "one continuous piece of fabric in which the direction of the knitting changes to create the curve of the sock around the heel." Comments at 5. Apex further asserts that its socks are designed by a team of podiatrists, orthotists, and pedorthists; are constructed of special materials, including [DELETED], that cause the socks to lie flat and smooth against the foot, minimizing bunching and wrinkling; and that, as a result, its socks do not pressure or irritate--but, rather, protect--diabetic feet. Id. at 5, 12; Protest at 8. We have held that matters involving medical judgments and policies are inappropriate for review under our bid protest function. GlaxoSmithKline, B-291822, Apr. 7, 2003, 2003 CPD Para. 77 at 5.