Draeger, Inc.

B-414938 Sep 21, 2017 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Draeger, Inc., of Telford, Pennsylvania, protests purchase order No. SPM2D1-09-D-8348, issued by the Department of Defense, Defense Logistics Agency (DLA), to Datex-Ohmeda Inc. dba GE Healthcare (GE), of Madison, Wisconsin, for anesthesia machines. Draeger contends that the order exceeds the scope of GE's underlying indefinite-delivery, indefinite-quantity (IDIQ) contract and that GE's anesthesia machines do not meet the required technical specifications. We dismiss the protest. We dismiss 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:  Draeger, Inc. File:  B-414938 Date:  September 21, 2017 Hilary S. Cairnie, Esq., Pepper Hamilton LLP, for the protester. Jared P. Weissberger, Esq., Defense Logistics Agency, 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 that a purchase order for medical equipment exceeds the scope of the awardee's underlying indefinite-delivery, indefinite-quantity (IDIQ) contract is dismissed as untimely where the record shows that the protester knew, prior to submitting its proposal, that the agency considered such medical equipment to be within the scope of the solicitation and the protester has received orders for the same type of equipment under its own IDIQ contract. DECISION Draeger, Inc., of Telford, Pennsylvania, protests purchase order No. SPM2D1-09-D-8348, issued by the Department of Defense, Defense Logistics Agency (DLA), to Datex-Ohmeda Inc. dba GE Healthcare (GE), of Madison, Wisconsin, for anesthesia machines.  Draeger contends that the order exceeds the scope of GE's underlying indefinite-delivery, indefinite-quantity (IDIQ) contract and that GE's anesthesia machines do not meet the required technical specifications. We dismiss the protest. BACKGROUND On March 15, 2007, DLA issued request for proposals (RFP) No. SP0200-06-R-8014 to award multiple IDIQ contracts for various categories of patient monitoring systems, including "anesthesia monitoring systems."  Req. for Dismissal (RFD) at 1; Tab 2, RFP, at 1, 7.  The RFP's statement of work (SOW) also stated that the medical equipment to be purchased "includes, but is not limited to . . . anesthesia apparatus[,]" among 21 other types of listed equipment.  RFP, SOW, at 171-72.  The RFP provided for an "open season" before the end of each contract term during which DLA would consider additional proposals from new suppliers only.[1]  RFP at 11.  The agency has issued numerous amendments to the RFP, including amendment 14, issued on October 29, 2013, to open the 2013 open season, and amendment 15, issued on November 19, 2013, to extend the deadline for submission of proposals for the 2013 open season until January 6, 2014.  RFP amends. 14 & 15; see generally www.fbo.gov/spg/DLA/J3/ DSCP-M/SP0200-06-R-8014/listing.html (last visited Sept. 21, 2017).  DLA has awarded over 40 IDIQ contracts, including to GE and Draeger.  RFD, Tabs 3-4, GE & Draeger IDIQ Contracts; Tab 7, Modality Matrix.  Draeger was awarded its IDIQ contract in August 2014 after submitting a proposal during the December 2013 open season.  RFD, Tab 4, Draeger IDIQ Contract, at 1 (offer & award dates). On July 12, 2016, the agency issued a request for offers (RFO) to IDIQ contractors, including GE and Draeger, soliciting "anesthesia machines."[2]  RFD at 1; Tab 6, RFO § 1.[3]  DLA received quotations from both GE and Draeger in response to the RFO, and on June 20, 2017, the agency issued a purchase order for 12 anesthesia machines to GE for $383,924.  RFD at 2; Tab 1, Order.  This protest followed. DISCUSSION Draeger argues that the purchase order exceeds the scope of the IDIQ solicitation and resulting contracts because, according to the protester, an anesthesia monitor is not the same as an anesthesia machine, and the IDIQ contracts provide for delivery of the former, but do not expressly provide for delivery of the latter.[4]  Protest at 3, 5, 12; attach., Decl. ¶¶ 6, 8.  Draeger claims that "IDIQ offerors could not reasonably have anticipated that the [IDIQ contracts] should be understood to provide for inclusion of anesthesia machines under the CLINs [contract line item numbers] specifying delivery of anesthesia monitors."  Protest at 12.  Draeger asserts that the agency has unreasonably restricted competition, materially compromised the integrity of the procurement process, and deprived IDIQ contractors of a fair opportunity to compete for future purchase orders, because not all offerors could make an informed decision about whether to offer anesthesia machines (at the IDIQ contract level).  See id.