LSL Industries, Inc.--Costs, B-291777.2, August 18, 2003

B-291777.2 Aug 18, 2003 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights LSL Industries, Inc. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest against the Department of Veterans Affairs' (VA) rejection of its samples under a "sources sought" notice, and the resultant issuance of a request for quotations only to (DELETED), with respect to a blanket purchase agreement for urinary drainage bags. We deny the request. View Decision B-291777.2, LSL Industries, Inc.--Costs, August 18, 2003 DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Matter of: LSL Industries, Inc.--Costs File: B-291777.2 Date: August 18, 2003 Michael C. Poliner, Esq., Poliner & Luks, for the protester. Maura C. Brown, Esq., Department of Veterans Affairs, for the agency. David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request for recommendation that protest costs be reimbursed is denied, even though agency took corrective action in response to the protest, where record does not establish that the protest was clearly meritorious. DECISION LSL Industries, Inc. requests that we recommend that it be reimbursed the costs of filing and pursuing its protest against the Department of Veterans Affairs' (VA) rejection of its samples under a –sources sought— notice, and the resultant issuance of a request for quotations only to [DELETED], with respect to a blanket purchase agreement for urinary drainage bags. We deny the request. The –sources sought— notice, published on VA's Federal Business Opportunities (VA FedBizOps) website on March 8, 2002, requested that potential offerors submit samples and detailed product literature for a number of medical/surgical items, including urinary drainage bags, for evaluation under stated criteria for each item. LSL submitted samples of a urinary drainage bag. On September 26, 2002, after being advised that its product did not meet several of the stated criteria in the notice, LSL filed an agency-level protest challenging the finding of noncompliance and asserting, among other things, that the drainage bags submitted by [DELETED] did not meet the following criterion: –17. Anti-Reflux Device or Chamber (Does Not Allow Liquid to Flow Back Up Catheter Tubing and Allow Unimpeded Flow of Liquid to Bag).— VA FedBizOps Notice, Criterion No. 17. According to LSL, the [DELETED] bags –do not have an anti'reflux device that prevents liquid back flow,— and this could be shown by turning the bags upside down when filled with liquid. LSL Agency-Level Protest, Sept. 26, 2002, at 2. VA denied LSL's agency-level protest, and on December 16 LSL filed a protest with our Office in which it reiterated several of its arguments, including its claim that the [DELETED] urinary drainage bags did not meet the anti-reflux criterion. In support of this argument, LSL asserted that the product literature for the [DELETED] models in question, copies of which it furnished with its protest, did not include a claim that the devices prevented any backflow. VA responded in its January 14 report to our Office that its evaluation had been based on –simulated actual use, product literature and established clinical experience—; that a medical/surgical user group had appropriately determined LSL's urinary drainage bag to be unacceptable; and that the evaluation of the [DELETED] models indicated that they prevented liquid backflow. Agency Report, Jan. 14, 2003, at 4, 9, Declaration of Chairperson of Medical/Surgical User Group. In its January 27 comments on the agency report, LSL narrowed its protest to its allegation that VA had improperly relaxed the anti-reflux criterion. In this regard, LSL distinguished between systems (such as that offered by LSL) that have a valve that prevents liquid from flowing back up the catheter, and systems (such as that offered by [DELETED]) that have anti-reflux chambers that serve as a housing for dripping, but nevertheless allow liquid to flow back up the catheter tubing. LSL Comments, Jan. 27, 2003, at 2. VA responded in a supplemental report that there was no requirement for a valve but, instead, only a requirement for a –device or chamber— in which no liquid flowed back up the catheter tubing. In this regard, VA reported that it had undertaken a simulation of actual clinical use, in which the bags were filled with 8 ounces of water, tilted horizontally, and raised to or above the level of the drainage tubing several times to simulate possible reversal of the gravitational flow, so as to determine whether fluid would reflux back into the tube.