Smith and Nephew, Inc.

B-410453 Jan 02, 2015 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Smith & Nephew, Inc., of St. Petersburg, Florida, protests the terms of request for quotations (RFQ) No. VA119-14-Q-0158, issued by the Department of Veterans Affairs (VA) for sterile foam dressings for wound care. Smith & Nephew contends that the RFQ's minimum absorption requirement does not reasonably relate to the agency's needs and is therefore unduly restrictive of competition. We sustain the protest. We sustain the protest. View Decision 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. Decision Matter of: Smith and Nephew, Inc. File: B-410453 Date: January 2, 2015 John G. Horan, Esq., McKenna Long & Aldridge LLP, for the protester. Ashley D. Presley, Esq., Department of Veterans Affairs, for the agency. Gary R. Allen, Esq., and Christina Sklarew, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging a technical specification (set out as a “minimum technical requirement”) in a solicitation for sterile wound dressing as unduly restrictive of competition is sustained where the record shows that the agency: (1) has not established its actual need for the requirement; (2) acknowledges that it has no data to support setting any specific requirement as its actual need; and (3) based its specification on an analysis of industry responses to inquiries about what products might be available, rather than first determining the agency’s actual needs. DECISION Smith & Nephew, Inc., of St. Petersburg, Florida, protests the terms of request for quotations (RFQ) No. VA119-14-Q-0158, issued by the Department of Veterans Affairs (VA) for sterile foam dressings for wound care. Smith & Nephew contends that the RFQ’s minimum absorption requirement does not reasonably relate to the agency’s needs and is therefore unduly restrictive of competition. We sustain the protest. BACKGROUND In preparation for an attempt to standardize procurements for sterile foam dressings, the agency, on December 19, 2013, posted a request for information (RFI) to the General Services Administration’s eBuy website seeking sources for three types of dressings. Contracting Officer’s Statement (COS) at 1. Each dressing was designated with a contract line item number (CLIN), as follows: (1) sterile bordered foam dressing (without contact layer) (CLIN 0001); (2) sterile bordered foam dressing (with contact layer) (CLIN 0002); and (3) sterile foam dressing (non-bordered) (CLIN 0003). Agency Report (AR), Tab 4a, RFI (Dec. 19, 2013), at 1-2. This protest relates only to CLIN 0002, the sterile bordered foam dressing with contact layer. See Protest at 4; Comments at 2. As relevant here, before issuing the RFI, the agency determined that there were no clinical studies or industry standards for the “fluid handling capacity” of the types of dressings being sought under the RFI. AR, Tab 8, Wound Care Integrated Product Team Chair Decl., at 2; Tab 6b, E-Mails Related to Second RFI, at 7. For this reason, the RFI required vendors to submit documentation--including test result data--of the fluid handling capacity of their dressings.[1] AR, Tab 4a, RFI (Dec. 19, 2013), at 7-9. The RFI did not, however, specify any minimum fluid handling capacity requirement for the dressings. See id. Eight vendors submitted responses to the RFI, including Smith & Nephew. AR at 1. Only three of these vendors [deleted], provided fluid handling capacity test result data for the dressing listed under CLIN 0002. The table below summarizes this data. Vendor Product Fluid Handling Capacity (g/10cm²/24hr) deleted deleted deleted deleted deleted deleted deleted deleted deleted Protest, exh. E, Smith & Nephew Response to First RFI, at 4; Tab 5a, [deleted] Response to First RFI, at 36; Tab 5g, [deleted] Response to First RFI, at 43. As reflected in this table, [deleted] provided significantly different test results [deleted] grams of absorption versus [deleted] grams of absorption) for two different lots of the same product [deleted]. AR, Tab 5a, [deleted] Response to First RFI, at 36. [deleted] did not provide an explanation for this wide variance or represent that one of the test results was more accurate than the other. See id. On March 9, 2014, the agency issued a second RFI. AR, Tab 4b, RFI (Mar. 9, 2014). This RFI was nearly identical to the first RFI, except that it included a minimum fluid handling capacity specification of 20 g/10cm²/24hr for the dressings listed under CLIN 0002. Id. at 7, 8, 9. After the RFI was issued, but before submitting a response to it, Smith & Nephew asked the agency about the rationale for this specification. AR, Tab 6b, E-Mails Related to Second RFI, at 7.