Steriliz LLC

B-410988.2 May 12, 2015 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Steriliz, LLC, of Rochester, New York, protests the decision of the Department of Veterans Affairs (VA) to award a sole-source contract to fulfill its requirement for a mercury-free, ultra-violet (UV) medical disinfecting system to Xenex Disinfection Services, LLC. Protest at 1. We deny the protest. We deny the protest. View Decision Decision Matter of: Steriliz, LLC File: B-410988.2 Date: May 12, 2015 Angelo Mancuso, Steriliz LLC, for the protester. Edith M. Bowman, Esq., Department of Veterans Affairs, for the agency. Stephanie B. Magnell, Esq., and Jonathan L. Kang, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is denied where the agency’s sole-source award to a Federal Supply Schedule contractor had a rational basis, and protester fails to allege that its product satisfies the agency’s requirements. DECISION Steriliz, LLC, of Rochester, New York, protests the decision of the Department of Veterans Affairs (VA) to award a sole-source contract to fulfill its requirement for a mercury-free, ultra-violet (UV) medical disinfecting system to Xenex Disinfection Services, LLC. Protest at 1. We deny the protest. BACKGROUND In April 2002, the Veterans Health Administration (VHA) issued VHA Directive 2002-018, Management of “Mercury in Veterans Health Administration Facilities,” in which the VA directed its medical facilities to “[r]educe[ ] the number of Hg [mercury] containing products as necessary where suitable substitutes are available . . . with the ultimate goal of achieving a virtually Hg-free environment.” Agency Report (AR), Tab 7, VHA Directive 2002-018, at 2. VA medical facilities were also directed to “[i]mplement[ ] Hg reduction into all phases of the acquisition and procurement process as well as the operation of the facility management program.” Id. at 3. The directive expired on March 31, 2007. Id. at 4. In October 2011, the Milwaukee, Wisconsin, VA Medical Center, noting the hazards of short- and long-term exposure to mercury vapor (e.g., vomiting, diarrhea, memory loss, tremors), established a policy stating that: All Divisions . . . are hereby encouraged to minimize procurement of Mercury-containing instruments and are advised to seek safer substitutes wherever possible. Divisions are encouraged to exchange mercury containing devices with safer substitutes that already exist in the inventory on station. The goal of a mercury free environment has been outlined in VHA 2002-018, titled “Management of Mercury in Veterans Health Administration Facilities.” AR, Tab 8, Milwaukee VA Mercury Use Memorandum, at 1. On June 24, 2013, the acting division manager for the VA environmental management services division sent a memo to VA contracting personnel that described the functional specifications of the Xenex PX-426t system. AR, Tab 9, VA Memorandum. The memorandum highlighted that the Xenex system was, “to the best of our knowledge[,] the only [UV disinfection] system that does not contain mercury.”[1] Id. On December 15, 2014, the contracting officer (CO) signed a limited sources justification (LSJ) under the under Federal Supply Schedule (FSS) provisions of Federal Acquisition Regulation (FAR) § 8.405-6, restricting purchase of a UV disinfection system and base-plus-four-year service contract to Xenex, for a total (including option years) of $285,500.96. AR, Tab 5, LSJ, at 1-2. The LSJ stated that limitation of sources to Xenex’s UV disinfecting system was required for the following reasons: [The Xenex system] is the only product to use a non-mercury high intensity millisecond pulsed xenon UV gas bulb for disinfection of patient rooms. The UV-C produced by the xenon lamp is the only product capable of producing pulses from a spectrum of 200 nm [nanometers] to 280 nm covering the entire germicidal UV band. Xenex Healthcare Services is the only manufacturer and distributor of the Pulsed Xenon UV Disinfection System . . . . Id. at 2. The agency determined that Xenex’s product offered the best value to the government “because no other companies can meet the specifications required of a non-mercury UV disinfection bulb capable of producing pulses of 200 nm to 280 nm.” Id. at 3. The VA stated that in performing its market research, “[a] search of the VA NAC and GSA Advantage contracts identified 57 contractors under [the relevant schedule,] but from this number only one provided a mercury free xenon lamp capable of producing UV pulses between 200 nm and 320 nm.”[2] Id. at 4. On December 17, 2014, the agency posted its pre-solicitation notice and LSJ to the government’s central contracting website, www.fbo.gov, in conjunction with solicitation VA69D-15-Q-0136. CO Statement, at 1.