Protest denial decision of DHA Medical Professional Staffing Services requirement released

DIGEST

Protest challenging use of “highest technically rated offerors with a fair and reasonable price” source selection method, for failing to properly consider price, is denied where the protester fails to establish that such an approach is prohibited by statute or regulation.

DISCUSSION

Maxmed challenges the terms of the amended RFP, arguing that the amendment “did not correct the underlying issues with the [s]olicitation.”3  Protest at 5.  Specifically, the protester alleges that DHA again elected to adopt a source selection methodology that provides for a competition without the evaluation of price, in violation of federal statute and regulation.  Maxmed also argues that the solicitation impermissibly allows mentor protégé joint ventures to rely on the past performance of the mentor alone with no past performance required of the protégé.  Id. at 6-7.  We have considered each argument and for the reasons discussed below, find no basis to sustain the protest.  Source Selection Methodology and Consideration of Price  First, Maxmed asserts that DHA’s corrective action was “illusory in nature” because the revised solicitation, now containing an HTRO source selection method, still fails to evaluate price.  In this regard, the protester asserts that the proposed “competitive approach does not actually involve an evaluation of price as a part of the competition itself.”  Protest at 5; Comments at 2.  The protester complains that:  [i]nstead of going back and either (1) adding price as an actual evaluation factor (using a sample task order or something of that nature) or (2) providing that all technically acceptable offers with fair and reasonable pricing will receive award, DHA simply removed the mention of “qualifying offeror” and tried to save face by saying that it will award “approximately” ten awards, as though saying it “might” award all qualifying offerors is acceptable.  Protest at 9-10.  Maxmed also asserts that the terms of the solicitation are contrary to FAR section 15.304(c)(1) and 10 U.S.C. § 3206(c)(3), which provide that price or cost must be considered in every source selection decision.  Id. at 6-8.  The protester argues that the only exception to this requirement arises under FAR section 15.304(c)(ii), which states that price or cost need not be an evaluation factor for award where the agency intends to award certain types of contracts to “each and all qualifying offerors,” among other requirements.4  Id. at 7-8.  Because DHA intends to award contracts only to offerors who are the “highest technically rated with a fair and reasonable price,” the protester contends that the proposed acquisition approach runs counter to the applicable statute and regulation.

DECISION

Maxmed Healthcare, Inc., a small business of San Antonio, Texas, challenges the terms of request for proposals (RFP) No. HT001523R0003, issued by the Department of Defense, Defense Health Agency (DHA) for medical professional staffing services.  Maxmed contends that the solicitation provides for competition without the evaluation of price, and improperly allows for the past performance evaluation of only one partner in a joint venture.  We deny the protest.

See the decision here.

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