Shertech Pharmacy Piedmont, LLC

B-413945 Nov 07, 2016 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Shertech Pharmacy Piedmont, LLC, a small business, of Kernersville, North Carolina, protests the award of a contract to Cardinal Health 414, LLC, of Dublin, Ohio, under request for proposals (RFP) No. W91YTZ-16-R-0068, which was issued by the Department of the Army, for the provision of radiopharmaceuticals for the Womack Army Medical Center at Fort Bragg, North Carolina. Shertech alleges that the agency unreasonably found its proposal technically unacceptable as a consequence of a latent ambiguity regarding the solicitation's requirements, and the solicitation, as interpreted by the agency, was unduly restrictive of competition. We deny the protest in part and dismiss it in part. We deny the protest in part and dismiss it in part. View Decision Decision Matter of:  Shertech Pharmacy Piedmont, LLC File:  B-413945 Date:  November 7, 2016 Timothy A. Sheriff, Esq., Sheriff & White, PLLC, for the protester. Evan C. Williams, Esq., and Scott N. Flesch, Esq., Department of the Army, for the agency. Evan D. Wesser, Esq., and Edward Goldstein, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1.  Protester’s interpretation of solicitation provision requiring a 30 minute response time for certain materials as requiring only an acknowledgment by the contractor, as opposed to actual delivery, is unreasonable when the solicitation is read as a whole and in a manner giving effect to all of its provisions; the only reasonable interpretation is that the contractor will be required to deliver the materials within the specified time period. 2.  Protest challenging the terms of the solicitation as being unduly restrictive of competition is dismissed as untimely where the challenge is raised after award. DECISION Shertech Pharmacy Piedmont, LLC, a small business, of Kernersville, North Carolina, protests the award of a contract to Cardinal Health 414, LLC, of Dublin, Ohio, under request for proposals (RFP) No. W91YTZ-16-R-0068, which was issued by the Department of the Army, for the provision of radiopharmaceuticals for the Womack Army Medical Center at Fort Bragg, North Carolina.  Shertech alleges that the agency unreasonably found its proposal technically unacceptable as a consequence of a latent ambiguity regarding the solicitation’s requirements, and the solicitation, as interpreted by the agency, was unduly restrictive of competition. We deny the protest in part and dismiss it in part. BACKGROUND On June 8, 2016, the Army issued the RFP for the provision of  radiopharmaceuticals at the Womack Army Medical Center.  The RFP contemplated the award of a fixed-price contract with a base year and 4 one-year options.  RFP at 129, 132.  Award was to be made on a lowest-priced, technically acceptable basis.  Id. at 132.  On July 6, the agency amended the RFP to extend the closing time for the receipt of proposals from July 11 to July 18.  RFP, amend. No. 1, at 2. On July 14, the Army issued amendment No. 2 to the RFP, incorporating agency responses to offerors’ questions.  RFP, amend. No. 2, at 4-5. On September 27, the agency notified Shertech that its lower-priced proposal was not selected for award because it was rated as technically unacceptable.  See Request for Dismissal, exh. No. 6, Unsuccessful Offeror Notice (Sept. 27, 2016), at 2.  Specifically, the Army explained that:  “[y]our company couldn’t meet the STAT Delivery (CLIN [contract line item numbers] 0033, 1033, 2033, 3033, 4033) requirement of paragraph 11.d of the SOW [statement of work].”  Id.  As relevant, the RFP required that “Stat delivery time shall be no more than 30 minutes.”  RFP at 19.  Paragraph 11.d of the SOW further defined Stat deliveries to mean those deliveries that “can be called in at any time and must have an immediate response time of no more than 30 minutes after placing the order.”  Id. at 129.  On October 7, Shertech filed this protest.  DISCUSSION Shertech challenges the agency’s conclusion that its proposal was unacceptable with respect to the Stat deliveries requirement.  According to Shertech, it reasonably understood the requirement for a 30 minute “response time” to mean that the contractor need only reply to the request, as opposed to actually deliver the material, within 30 minutes.  In response, the agency argues that the solicitation established a clear requirement for delivery of required items within 30 minutes of when the Army placed an order for a Stat delivery.  Shertech does not contend that its proposal demonstrated that it would make Stat deliveries within 30 minutes.  Rather, the protester argues that its proffered interpretation--that “response time” refers only to the contractor’s need to acknowledge the request for a Stat delivery, not to actually make the delivery--is a reasonable alternative interpretation, thus evidencing a latent ambiguity.