BNUMBER:  B-271595
DATE:  July 11, 1996
TITLE:  Amcare Medical Services, Inc.

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Matter of:Amcare Medical Services, Inc.

File:     B-271595

Date:July 11, 1996

Gary C. Crossen, Esq., Foley, Hoag & Eliot, for the protester.
John A. Cohan, Esq., Cohan & Associates, for Nahatan Medical Services, 
an intervenor.
Dennis Foley, Esq., and Philip Kauffman, Esq., Department of Veterans 
Affairs, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  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.

2.  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.

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.  In its post-hearing comments, Amcare neither alleges 
nor demonstrates that it was prejudiced by the agency's actions.  
Specifically, while Amcare maintains only that the Nahatan offer was 
technically noncompliant, and that the agency should reopen the 
competition to provide all firms an opportunity to submit offers based 
on the alternate equipment, it does not assert--and there is nothing 
in the record which suggests--that it would or could have offered the 
alternate equipment, or that any such offer would have been 
significantly lower priced (in the context of this competition).  In 
view of these considerations (and, to some limited extent, the fact 
that both Nahatan and NMC submitted BAFOs that were rated technically 
superior to and offered the compliant system at lower prices than 
Amcare's), there is no basis for concluding that the VA's actions were 
prejudicial to Amcare.

BAD FAITH

In its initial protest, Amcare alleged that a senior official at one 
of VA's installations for this acquisition had a conflict of interest.  
Specifically, Amcare alleged that the Chief of Respiratory Therapy at 
one installation was on the board of medical advisors for Nahatan and 
that, because he was the supervisor for one of the technical 
evaluators, he had an opportunity to improperly influence the outcome 
of the procurement.  During the hearing, we obtained testimony showing 
that the Chief of Respiratory Therapy had in fact entered into a paid 
consultant relationship with Nahatan, but that at the time he entered 
into the relationship, he was unaware of the fact that Nahatan was 
competing for the requirement.  The testimony further showed that the 
Chief of Respiratory Therapy and the evaluator in question never had 
substantive discussions concerning the ongoing competition or the 
firms involved.  There was no evidence, and the record gives no reason 
to believe, that the Chief of Respiratory Therapy ever directly or 
indirectly attempted to influence the outcome of the competition, or 
that the evaluator was either aware of, or influenced by, the 
existence of a relationship between the Chief Respiratory Therapist 
and Nahatan.  

In its post-hearing comments, Amcare apparently abandoned its conflict 
of interest allegation.[3]  Amcare argues instead that Nahatan's 
actions in establishing a relationship with the Chief of Respiratory 
Therapy constituted bad faith.[4]  It is not apparent on what basis 
Amcare would have us sustain its protest, since there is no evidence 
or allegation of  either a legal impropriety on Nahatan's part, or 
that the evaluation was improperly influenced.  In any case, we need 
not decide this issue since Amcare is not an interested party for 
purposes of advancing the argument.  Our Bid Protest Regulations, 4 
C.F.R.  sec.  21.1(a) and 21.0(a), require a protester to be an actual or 
prospective bidder or offeror whose direct economic interest would be 
affected by the award of a contract or the failure to award a 
contract.  As noted, there was another offeror, NMC, whose proposal 
was found technically superior to, and lower priced than, Amcare's.  
Amcare has not challenged the evaluation of NMC's proposal, or 
otherwise raised allegations that would bring into question its 
relative competitive standing.  Thus, even if Nahatan were eliminated 
from the competition, NMC, not Amcare, would be in line for award.  
Amcare therefore is not an interested party for purposes of this 
allegation.

The protest is denied in part and dismissed in part.

Comptroller General
of the United States

1. The offerors were not required to submit these BAFOs at the same 
time; Amcare was required to submit its BAFO 17 days earlier than any 
other offeror.  Amcare contends that the agency erred in not 
establishing a common cut--off date for the submission of BAFOs.  The 
record shows, however, that Amcare was advised on February 21, 1996 
that the other offerors had not been required to submit their BAFOs at 
the time Amcare made its submission.  Since Amcare did not raise this 
contention until March 29 when it protested to our Office, we dismiss 
this allegation as untimely.  4 C.F.R.  sec.  21.2(a)(2) (1996).  

2. Similarly, while Amcare initially maintained that the VA 
unreasonably delayed the award of a contract, the VA provided a 
detailed, reasonable explanation of the various events that resulted 
in delays of the award, and Amcare made no further substantive comment 
on this issue.  Thus there is no basis for finding any impropriety on 
the agency's part.  TRW, Inc.; Systems Research and Applications 
Corp., supra.

3. To the extent that Amcare's post-hearing submission can be 
interpreted as commenting on the conflict of interest protest basis, 
we deny the allegation.  There is no evidence to show that the 
consulting relationship between the Chief Respiratory Therapist and 
Nahatan either directly or indirectly affected the outcome of the 
procurement; thus, there is no basis to sustain Amcare's allegation in 
this regard.  TRESP Assocs., Inc.; Advanced Data Concepts, Inc., 
B-258322.5; B-258322.6, Mar. 9, 1995, 96-1 CPD  para.  8.

4. Amcare also alleged, without supporting evidence, that Nahatan had 
purchased equipment to be used in connection with the contract prior 
to the award.  Even if Amcare's allegation were true, however, it 
would show no more than that Nahatan had decided to buy certain 
equipment, a decision not necessarily related to the performance of 
this particular contract.