Veterans Healthcare Supply Solutions, Inc.

B-417854 Nov 15, 2019 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Becton, Dickinson and Company (BD) of Franklin Lakes, New Jersey, protests the terms of request for quotations (RFQ) No. 36C24C19Q0037, issued by the Department of Veterans Affairs (VA), to establish blanket purchase agreements (BPAs) for the procurement of medical supplies.  The protester alleges that the solicitation improperly applies the Buy American Act (BAA), 41 U.S.C. §§ 8301 8305, instead of the Trade Agreements Act of 1979 (TAA), 19 U.S.C. §§ 2501 2582, to quotations from small business concerns (SBCs). We dismiss the protest. View Decision Decision Matter of:  Becton, Dickinson and Company File:  B-417854 Date:  November 15, 2019 William A. Shook, Esq., The Law Offices of William A. Shook PLLC, for the protester. Deborah K. Morrell, Esq., Department of Veterans Affairs, for the agency. Sarah T. Zaffina, Esq., and Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging solicitation terms that apply Buy American Act requirements to quotations from small businesses instead of applying Trade Agreements Act (TAA) requirements, when the Small Business Administration has issued a waiver of the nonmanufacturer rule for the solicitation, is dismissed because acquisitions set aside for small businesses are excepted from the TAA. DECISION Becton, Dickinson and Company (BD) of Franklin Lakes, New Jersey, protests the terms of request for quotations (RFQ) No. 36C24C19Q0037, issued by the Department of Veterans Affairs (VA), to establish blanket purchase agreements (BPAs) for the procurement of medical supplies.  The protester alleges that the solicitation improperly applies the Buy American Act (BAA), 41 U.S.C. §§ 8301‑8305, instead of the Trade Agreements Act of 1979 (TAA), 19 U.S.C. §§ 2501‑2582, to quotations from small business concerns (SBCs). We dismiss the protest. BACKGROUND The VA issued the RFQ on June 25, 2019.  The solicitation seeks quotations to establish BPAs in support of the VA’s Medical Surgical/Prime Vendor 2.0 Program to supply patient exam room instruments and supplies.  Agency Report (AR), Tab 3, RFQ, at 5.  The BPAs will be the mechanism to provide medical/surgical supplies to Veterans Health Administration facilities nationwide; facilities will order from the product list that the BPAs will establish.  Id.  Vendors may propose supplies from their respective catalogues that fit within the scope of a product category provided in the RFQ.  Id.  The RFQ, issued in accordance with Federal Acquisition Regulation (FAR) parts 12 and 13, and VA acquisition regulations, was assigned North American Industry Classification System (NAICS) code 339113, Surgical Appliance and Supplies Manufacturing.  Id. at 1, 6, 12.  The solicitation anticipates establishing multiple BPAs with a period of performance not to exceed 60 months.  Id. at 5‑6.  The RFQ provides for establishment of BPAs with the responsible vendors whose quotations present the best value to the government considering technical and price factors.  Id. at 32‑33.  The solicitation provides for a total set‑aside award based on a tiered evaluation method and modeled after the order of priority set forth in 38 U.S.C. § 8127; the tiered evaluation also includes large business concerns.  RFQ at 32.  In accordance with VA Procurement Policy Memorandum (PPM) 2018‑04, Guidance and Procedures Regarding the Use of Tiered Evaluation (Cascading) for Use in Solicitations Set‑Aside in Accordance with the VA Rule of Two (2018),[1] the tiers are: Service-Disabled Veteran-Owned Small Business ([SDVOSB]) concerns; Veteran-Owned Small Business (VOSB) concerns; Small Business concerns with Historically Under‑utilized Business (HUB) Zone small business concerns and 8(a) participants having priority; and Large business concerns. RFQ at 32; see generally AR, Tab 5, VA PPM 2018‑04.  Under this policy, the contracting officer evaluates the quotations, if any, from SDVOSBs, the first tier.  AR, Tab 2, Contracting Officer’s Statement (COS) at 1.  If none is received or no quotations would result in an award with a fair and reasonable price, the contracting officer documents the reason for not making an award to an SDVOSB, amends the solicitation to remove the SDVOSB set‑aside, and proceeds to evaluate quotations from the next tier below‑‑VOSBs.  Id. The contracting officer continues in this fashion until an award can be made to the vendor whose quotation represents the best value to the government.  Id.