CareandWear II, LLC (SPE1C1-20-R-0138)

B-419140,B-419140.2 Dec 10, 2020 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights CareandWear II, LLC (Care+Wear), a small business of New York, New York, protests its elimination from award consideration by the Defense Logistics Agency (DLA), under request for proposals (RFP) No. SPE1C1-20-R-0138, issued for disposable isolation gowns. The protester argues that it submitted the lowest-priced, technically acceptable proposal, and the agency's decision to eliminate Care+Wear from the competition was unreasonable. Additionally, the protester alleges that the agency acted in bad faith. We deny the protest. View Decision Decision Matter of:  CareandWear II, LLC File:  B-419140; B-419140.2 Date:  December 10, 2020 Chaitenya Razdan, for the protester. Amanda Stone, Esq., Defense Logistics Agency, for the agency. Raymond Richards, Esq., and Laura Eyester, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1.  Protest challenging the agency’s interpretation of a solicitation requirement to submit a test report showing that the offeror’s product met certain performance metrics is denied where the solicitation’s test requirements were unambiguous. 2.  Allegation of bad faith on the part of agency personnel is denied where there is no evidence in the record to support a finding that government personnel acted with specific, malicious intent to harm the protester. DECISION CareandWear II, LLC (Care+Wear), a small business of New York, New York, protests its elimination from award consideration by the Defense Logistics Agency (DLA), under request for proposals (RFP) No. SPE1C1‑20‑R‑0138, issued for disposable isolation gowns.  The protester argues that it submitted the lowest‑priced, technically acceptable proposal, and the agency’s decision to eliminate Care+Wear from the competition was unreasonable.  Additionally, the protester alleges that the agency acted in bad faith.   We deny the protest. BACKGROUND DLA issued the solicitation on July 20, 2020, pursuant to the commercial item procedures of Federal Acquisition Regulation (FAR) part 12, and the evaluation procedures of FAR subpart 15.4.  Conformed RFP (RFP) at 3‑4, 26.  The RFP sought proposals for level 2 disposable isolation gowns, and divided the agency’s requirement into three distinct lots based on the preference for certain domestic commodities and the approval of a domestic non‑availability determination.[1]  Id. at 4‑5, 14.  The RFP anticipated the award of multiple fixed‑price, indefinite‑delivery, indefinite‑quantity (IDIQ) contracts with an ordering period of 12 months, to the responsible offerors submitting the lowest‑priced, acceptable proposals.  Id. at 6‑7.  As the agency explains, in order to prevent exposure to COVID-19, personnel interacting with infected individuals or materials and supplies require personal protective equipment.  Redacted Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 3.  DLA issued the solicitation in support of the requirement to obtain urgently needed personal protective equipment, in this case, isolation gowns.  Id. The RFP established two non-cost/price evaluation factors:  technical, and past performance.  RFP at 25, 26-27.  The technical factor, called the product demonstration model (PDM), consisted of two subfactors:  test reports; and visual, dimensional, and manufacturing requirements.  Id.  Relevant here, the RFP’s instructions to offerors required the submission of the following test reports:  barrier performance ([American Association of Textile Chemists and Colorists (AATCC)] 42 and 127); [2] tensile strength (ASTM D5034); tear strength (ASTM D5587 or D5733); seam strength (ASTM D1683/D1683M); biocompatibility (ISO/ANSI/AAMI 10993‑10); and flammability (Consumer Product Safety Commission standard set forth in 16 C.F.R. part 1610).  Id. at 23.  Under the test report subfactor, the agency would evaluate the test reports submitted.  Id. at 26; see also AR, Exh. 3, Amend. 02, Proposal Submission Form at 8.  The RFP provided that the PDM factor would be evaluated on an acceptable unacceptable basis; each subfactor would be independently evaluated and an overall rating would be assigned.  RFPat 26.  An acceptable rating under the PDM factor would indicate that the proposal clearly met the minimum requirements of the solicitation, while an unacceptable rating would indicate that the proposal did not clearly meet the minimum requirements of the solicitation.  Id. at 27.  As relevant here, the RFP advised that proposed disposable isolation gowns “shall meet all [of the] requirements” in ASTM F3352‑19 and ANSI/AAMI PB70.  Id. at 15.  ASTM F3352‑19 provides minimum requirements for isolation gowns used for the protection of healthcare workers.  AR, Exh. 7, ASTM F3352 at ¶ 4.1.  ASTM F3352 explains that isolation gowns must be designed to comply with the barrier performance requirements of ANSI/AAMI PB70.  Id.