Pyxis Corporation, B-282469; B-282469.2, July 15, 1999

Pyxis Corporation, B-282469; B-282469.2, July 15, 1999 TITLE: Pyxis Corporation, B-282469; B-282469.2, July 15, 1999 BNUMBER: B-282469; B-282469.2 DATE: July 15, 1999 ********************************************************************** Pyxis Corporation, B-282469; B-282469.2, July 15, 1999 Decision Matter of: Pyxis Corporation File: B-282469; B-282469.2 Date: July 15, 1999 Paul W. Cobb, Jr., Esq., and Leslie H. Lepow, Esq., Jenner & Block, for the protester. Jeff Arbuckle for OmniCell Technologies, Inc., an intervenor. Maj. David Newsome, Jr., Department of the Army, for the agency. Linda S. Lebowitz, Esq., and Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Where an untimely issue raised by the protester provides an opportunity to clarify the caselaw concerning the ordering of non-Federal Supply Schedule (FSS) items in connection with an FSS buy, a matter which the General Accounting Office (GAO) views as of widespread interest to the procurement system, GAO will consider this issue pursuant to the significant issue exception to its timeliness rules. 2. An agency may no longer rely on the "incidentals" test to justify the purchase of non-FSS items in connection with an FSS buy; where an agency buys non-FSS items, it must follow applicable acquisition regulations. 3. Agency reasonably issued delivery orders to FSS vendor whose hospital medication and supply dispensing system offered features that satisfied the agency's needs, rather than to the protester, another FSS vendor, whose comparably priced system did not satisfy these needs. DECISION Pyxis Corporation protests the issuance of delivery order Nos. DADA10-99-F-0194, DADA10-99-F-0216, and DADA10-99-F-0217, to OmniCell Technologies, Inc. by the United States Army Medical Command, Department of the Army, for automated medication and supply dispensing equipment and software, known as a "point of use" (POU) system for, respectively, Womack Army Medical Center, Madigan Army Medical Center, and Walter Reed Army Medical Center. The delivery orders were issued under OmniCell's Federal Supply Schedule (FSS) contract No. V797P-3406K for medical equipment and supplies. Pyxis contends the agency improperly issued the orders to OmniCell. We sustain the protest. For each medical center, the agency required a POU system that would link and provide automated access to medication and supply information at the patient level, while interfacing with existing and future patient information systems and billing networks. Contracting Officer's (CO) Statement, May 10, 1999, at 1. The POU system would identify the specific supply and pharmacy costs involved with treating individual patients by case, diagnosis, and provider. As relevant here, by e-mail message dated December 14, 1998, from the agency to Pyxis, the agency described its urgent requirement for a POU system which "utilizes existing local area network infrastructure and is consistent with DOD [Department of Defense] standards for architecture (WIN NT) [Windows NT]." Protest, Apr. 8, 1999, Tab A; see also Agency Report, May 10, 1999, Tab I, Memorandum--Policy for Military Health Services System Operating Systems, Health Affairs Policy 96-058, Aug. 26, 1996 (Windows NT workstations and servers to be the standard). On December 14, the agency requested FSS and product information from Pyxis and OmniCell, the two firms which had FSS contracts for POU equipment. Pyxis and OmniCell subsequently submitted relevant product information which was reviewed by the agency between December 17, 1998 and January 8, 1999. In reviewing the product information, the agency determined that OmniCell's system satisfied the agency's needs, while the comparably priced Pyxis system did not. CO Statement at 4. The most significant difference between the two systems was that OmniCell's system was Windows NT compliant at the time of the agency's review, while Pyxis, as stated in its product submission, "was in the process of implementing Windows NT servers." Supplemental Protest, May 20, 1999, at 12. (Pyxis also contemporaneously advised the agency by e-mail message dated December 18, 1998, that its architecture would be Windows NT compliant by the "MARCH/APRIL timeframe of 1999," Protest, Tab C, and by letter dated March 25, 1999, Pyxis announced that its Windows NT-compliant servers were now commercially available. Supplemental Agency Report, June 2, 1999, encl. 1.) On March 15, the agency issued a delivery order for $293,990 to OmniCell for a POU system at Womack, and on March 26, the agency issued two delivery orders--one for $1,993,730 and one for $799,760 to OmniCell for POU systems at Madigan and Walter Reed, respectively.