Red Heritage Medical, Inc. (IHS1407616)

B-418934 Oct 19, 2020 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Red Heritage Medical, Inc., a small business of Knoxville, Tennessee, protests the terms of request for quotations (RFQ) No. IHS1407616, which was issued by the Department of Health and Human Services, Indian Health Service, for brand name or equal ankle fracture podiatry surgical instruments for the Northern Navajo Medical Center. The protester also challenges the agency's award to Arthrex, Inc., a small business of Naples, Florida, on the basis that the agency may have conducted unequal discussions. 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:  Red Heritage Medical, Inc. File:  B-418934 Date:  October 19, 2020 Jonathan Perrone, Esq., Whitcomb Selinsky, P.C., for the protester. Seeta Rebbapragada, Esq., Department of Health and Human Services, for the agency. Stephanie B. Magnell, Esq., and Evan C. Williams, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is dismissed where the challenge to the solicitation’s terms is untimely and the remainder of the protest lacks a sufficient factual basis for its argument.  DECISION Red Heritage Medical, Inc., a small business of Knoxville, Tennessee, protests the terms of request for quotations (RFQ) No. IHS1407616, which was issued by the Department of Health and Human Services, Indian Health Service, for brand name or equal ankle fracture podiatry surgical instruments for the Northern Navajo Medical Center.  The protester also challenges the agency’s award to Arthrex, Inc., a small business of Naples, Florida, on the basis that the agency may have conducted unequal discussions.  We dismiss the protest.  BACKGROUND On June 22, 2020, the agency issued the RFQ as a combined synopsis/solicitation for brand name or equal ankle fracture podiatry surgical instruments.  RFQ at 2.[1]  The solicitation was issued as a request for quotations pursuant to Federal Acquisition Regulation parts 12 and 13.  Id. at 3.  Attached to the RFQ was a fee schedule, which listed item serial numbers and descriptions of the products to be purchased by the agency, including an item identified as AR-89435.  AR, Tab 2, RFQ attach. 1, fee schedule.  Also attached to the RFQ were the product specifications for AR-89435, an ankle fracture management system.  AR, Tab 3, RFQ attach. 2, Product Specifications.  Quotations were due by 5:00 p.m. mountain time on June 25.  RFQ at 2.  The agency received three quotations prior to the submission deadline, including those of Red Heritage and Arthrex.  Contracting Officer’s Statement at 1.  The agency made award to Arthrex on July 6, without holding discussions.  Id. at 1.  Red Heritage filed its protest on July 16. DISCUSSION Red Heritage asserts that the solicitation’s brand name or equal requirement is unduly restrictive and that the agency held unequal discussions with the awardee.  For the reasons below, the protest is dismissed.[2] Restrictive Requirements Red Heritage contends that the RFQ’s brand-name-or-equal requirement was overly restrictive.  Protest at 4-5.  In response, the agency argues that this protest ground is an untimely challenge to the terms of the solicitation.  Memorandum of Law (MOL) at 1. Our Bid Protest Regulations contain strict rules for the timely submission of protests. These rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process.  Verizon Wireless, B-406854, B-406854.2, Sept. 17, 2012, 2012 CPD ¶ 260 at 4.  Our timeliness rules require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals be filed before that time.  4 C.F.R. § 21.2(a)(1); see American Sys. Grp., B‑418535, June 9, 2020, 2020 CPD ¶ 190 at 3.  Where, as here, a protester challenges the terms of the solicitation as overly restrictive, and raises those challenges after the deadline for receipt of quotations, we dismiss that protest ground as untimely.  Id. The protester also asserts that it was unable to discern the meaning of the restriction until award was made to Arthrex.  Protest at 5.  On this basis, the protester contends that this rendered the solicitation defective, and that this defect was latent.  Id.; see also Comments at 4. Our decisions provide that an ambiguity exists where two or more reasonable interpretations of the terms or specifications of the solicitation are possible.  Colt Def., LLC, B-406696, July 24, 2012, 2012 CPD ¶ 302 at 8.  A patent ambiguity exists where the solicitation contains an obvious, gross, or glaring error, while a latent ambiguity is more subtle.  Id.