B-298444, Bausch & Lomb, Inc., September 21, 2006

B-298444 Sep 21, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Bausch & Lomb, Inc. (B&L) protests the Department of Veterans Affairs' (VA) issuance of sole-source purchase orders to Alcon Laboratories, Inc. for ophthalmology equipment used in cataract procedures for the VA Medical Centers (VAMC) located at Albany and Syracuse, New York. We sustain the protest. View Decision B-298444, Bausch & Lomb, Inc., September 21, 2006 Decision Matter of: Bausch & Lomb, Inc. File: B-298444 Date: September 21, 2006 John F. LaFave, Esq., for the protester. Dennis Foley, Esq., and Philip Kauffman, Esq., Department of Veterans Affairs, for the agency. Katherine I. Riback, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Agency's sole-source order of ophthalmology equipment based on unusual and compelling urgency was improper where the awardee was determined to be the only responsible source, yet the capabilities of the equipment of other interested firms were not considered. DECISION Bausch & Lomb, Inc. (B&L) protests the Department of Veterans Affairs' (VA) issuance of sole-source purchase orders to Alcon Laboratories, Inc. for ophthalmology equipment used in cataract procedures for the VA Medical Centers (VAMC) located at Albany and Syracuse, New York. We sustain the protest. The Chief of Ophthalmology in the VAMC Albany facility indicated, in a memorandum dated May 31, that two patients developed eye infections due to the use of certain medical equipment used in cataract procedures because the equipment had been improperly cleaned. The doctor went on to state in the memorandum that the medical equipment was outdated in any case and required replacement and that her doctors were familiar and comfortable with the Infiniti machine manufactured by Alcon as a result of their private practice experiences. Agency Report, Tab B, VAMC Albany Memorandum (May 31, 2006). On that same day, the VA issued a purchase order for ophthalmology medical equipment for cataract procedures to Alcon for the VAMC Albany facility. The order was made without advertisement or competition on the basis of unusual and compelling urgent circumstances affecting patient care at the facility. On June 14, the VA publicized in FedBizOpps an intent to award a sole-source contract to Alcon for ophthalmology medical equipment for cataract procedures for the VAMC Syracuse facility, and invited interested parties to respond by 4:30 p.m. that same day. Agency Report, Tab C, FedBizOpps Notice, June 14, 2006. On that same date, VA issued a sole-source purchase order to Alcon for the equipment. The equipment ordered under these purchase orders has been delivered. After the awards were made, the contracting officer prepared an undated justification and approval (J&A) for other than full and open competition on the basis of urgent circumstances for the sole-source purchases of medical equipment for the VAMC Albany and the VAMC Syracuse facilities.[1] The J&A stated that the ophthalmology equipment for the two VAMC facilities was urgently needed and that its doctors have found that only Alcon could meet the needs of the government because its ophthalmology equipment was –state of the art technology,— and that other similar units on the market lacked –advanced design features,— such as a torsional phaco handpiece or the aqualase technology. The J&A also stated that the –other vendors have had no significant change in their handpiece design in 14 years.— Regarding the Syracuse VAMC facility, the J&A stated that the medical equipment in question was 12 years old and had been proven unreliable in the operating room. The J&A finally stated, without further elaboration, that B&L and another firm had expressed an interest in these acquisitions. Agency Report, Tab B, J&A.[2] The protester contends that the sole-source orders to Alcon were improper. The protester states that the J&A prepared in connection with the orders was not adequately justified, and that the VA failed to request offers from as many potential sources as practicable. B&L argues that the agency's conclusion that only Alcon's equipment could meet VA's requirements was inaccurate and that B&L's Millennium equipment was the most advanced system on the market and could better satisfy VA's requirements. B&L argues that to the extent the orders to Alcon were justified based on urgency, the urgent circumstances were the result of the VA's lack of advance planning. The Competition in Contracting Act of 1984 (CICA) requires agencies to conduct their procurements using –full and open competition.— 41 U.S.C. sect. 253(a)(1)(A). CICA, however, permits noncompetitive acquisitions in specified circumstances, such as when the agency's need for the services is of unusual and compelling urgency.