Sancilio & Company, Inc.

B-414579 May 15, 2017 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Sancilio & Company, Inc. (SCI), of Riviera Beach, Florida, protests the award of a contract to Liberty BioScience LLC (Liberty) of New York, New York, under request for proposals (RFP) No. VA797P-16-R-0100, issued by the Department of Veterans Affairs (VA) for fish oil capsules. Sancilio alleges that the VA should have rejected Liberty's proposal as technically unacceptable for not complying with the Trade Agreements Act (TAA). We dismiss the protest because, as filed with our Office, it does not establish a valid basis for challenging the agency's action. We dismiss the protest because, as filed with our Office, it does not establish a valid basis for challenging the agency's action. View Decision Decision Matter of:  Sancilio & Company, Inc. File:  B-414579 Date:  May 15, 2017 Robert P. Mino, Esq., for the protester. Maura C. Brown, Esq., Department of Veterans Affaris, for the agency. Pedro E. Briones, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is dismissed where nothing in the record suggests that agency had any reason to doubt the awardees’ certification of compliance with the Trade Agreements Act DECISION Sancilio & Company, Inc. (SCI), of Riviera Beach, Florida, protests the award of a contract to Liberty BioScience LLC (Liberty) of New York, New York, under request for proposals (RFP) No. VA797P‑16‑R‑0100, issued by the Department of Veterans Affairs (VA) for fish oil capsules.  Sancilio alleges that the VA should have rejected Liberty’s proposal as technically unacceptable for not complying with the Trade Agreements Act (TAA). We dismiss the protest because, as filed with our Office, it does not establish a valid basis for challenging the agency’s action. As relevant to SCI’s protest, the solicitation incorporated by reference Federal Acquisition Regulation (FAR) clause 52.225‑5, which implements the TAA requirement that only end products of the United States and designated countries can be provided.  RFP at 27; FAR § 52.225‑5, Trade Agreements (Feb 2016); 19 U.S.C. §§ 2501-2582.  Also relevant here, the RFP required offerors to “provide a separate and distinct eleven‑digit National Drug Code (NDC) Number and/or Universal Product Code (UPC) number for the line item offered, unique to the offeror.”  RFP amend. 2, at 1; see RFP, Scope of Contract (Scope), §§ 5, 7.  The RFP also required that all product information pertaining to all items offered under the solicitation, including the offeror’s unique NDC code, must be submitted to First Data Bank (FDB), RxNorm, and Medispan prior to the effective date of contract performance.[1]  Scope § 3.  The solicitation, which provided for award on a lowest price, technically‑acceptable basis, stated that an offer would be considered technically acceptable if it met several criteria, including that the NDC or UPC number of each product offered is unique to the offeror.  RFP amend. 2, at 4. SCI contends that the award was improper and contrary to the terms of the RFP, because the NDC number for Liberty’s proposed fish oil capsules allegedly corresponds to a drug company located in the People’s Republic of China, which is not a TAA designated country.  Protest at 4.  SCI maintains, among other things, that the VA should have rejected Liberty’s proposal as technically unacceptable for not providing an NDC number unique to the distributor or for providing “a falsified NDC number[.]”  Id. at 4‑5 (citing the code for the Chinese company as listed in the Food and Drug Administration’s on‑line directory of NDCs). As a threshold matter, the VA requests that our Office dismiss the protest as untimely, because it was filed on April 12, 2017, which is 15 days after the agency informed SCI on March 28 that it was not awarded the contract.[2]  Request for Dismissal at 5.  Moreover, the VA maintains that SCI’s April 3 request for a debriefing was also untimely, because the request was submitted 6 days after the March 28 notice.  Id., citing FAR § 15.506(a)(1) (requiring an agency to provide an offeror with a debriefing when it is requested within 3 days of the offeror receiving notice of award); SCI Email to Contracting Officer (CO), Apr.