Cue Health, Inc. (SPE2DE-22-R-0007)

B-420528,B-420528.2 May 23, 2022 Jump To FULL REPORT VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Cue Health Inc. (Cue), a small business of San Diego, California, protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SPE2DE-22-R-0007, issued by the Defense Logistics Agency (DLA) for SARS-CoV-2 (COVID), influenza (flu), and respiratory syncytial virus (RSV) rapid test kits and analyzers. The protester contends that the agency's decision to exclude its proposal was the result of an unreasonable and unequal evaluation. We deny 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: Cue Health, Inc. File: B-420528; B-420528.2 Date: May 23, 2022 Scott Arnold, Esq., Dominique Casimir, Esq., Justin A. Chiarodo, Esq., and Elizabeth N. Jochum, Esq., Blank Rome LLP, for the protester. Katherine B. McCulloch, Esq. and Mariam Ibrahim, Esq., Defense Logistics Agency, 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 that agency improperly excluded protester from the competitive range is denied where record shows that agency’s evaluation was reasonable and consistent with the solicitation’s evaluation criteria. DECISION Cue Health Inc. (Cue), a small business of San Diego, California, protests the exclusion of its proposal from the competitive range under request for proposals (RFP) No. SPE2DE‑22‑R‑0007, issued by the Defense Logistics Agency (DLA) for SARS‑CoV‑2 (COVID), influenza (flu), and respiratory syncytial virus (RSV) rapid test kits and analyzers. The protester contends that the agency’s decision to exclude its proposal was the result of an unreasonable and unequal evaluation. We deny the protest. BACKGROUND Issued on December 23, 2021, under the procedures of Federal Acquisition Regulation (FAR) parts 12 and 15, the RFP contemplated award of multiple indefinite‑delivery, indefinite‑quantity (IDIQ) contracts for a period of 18 months from the date of award to meet the continuing need for rapid COVID, flu, and RSV test kits. Agency Report (AR), Tab 1, RFP at 4‑5; Contracting Officer’s Statement and Memorandum of Law (COS/MOL) at 2.[1] The solicitation identified two different items to be delivered: (1) a single‑plex Point-of-Care (POC) Nucleic Acid Amplification Test (NAAT) and analyzers for SARS-CoV-2 confirmatory testing (contract line item number (CLIN) 0001), and (2) a multi‑plex POC NAAT and analyzers for Influenza A, Influenza B, RSV, and SARS-CoV-2 confirmatory testing (CLIN 0002).[2] RFP at 4‑5, 8. Under CLIN 0001, the RFP required offerors to propose both test kits (subCLIN 0001a) and analyzers (subCLIN 0001b). Id. at 13. For CLIN 0001, DLA sought to make multiple awards on a lowest‑price, technically acceptable basis to provide the estimated requirement of 9 million tests and 2,250 analyzers. Id. at 7, 14. As relevant here, the RFP stated that the test kit must be self‑contained. Id. at 4, 8‑9. In this regard, the RFP required that the test kit must include positive and negative controls, and sterile sample swabs for use with the test.[3] RFP at 4, 8‑9. The RFP directed firms to submit a technical description of the items being offered, which might include product literature. Id. at 44. The RFP also required that the test kits be U.S. Food and Drug Administration (FDA) ‑approved, 510(K)‑cleared,[4] or emergency use authorization (EUA) -approved. Id. at 4, 8. The RFP required the FDA documentation, as well as the product instructions for use, in the proposal submission. Id. at 7. Additionally, the RFP instructed that offers from distributors must include a signed letter of commitment from the manufacturer. Id. at 5, 13. To be eligible for award, a proposal had to be rated technically as acceptable. Id. at 15. The RFP advised that “[l]ack of adequate documentation in a proposal to support any portion of the [t]echnical [r]equirements” or “[t]aking exception to the terms and conditions of the solicitation” might result in a proposal being found technically unacceptable.[5] Id. at 13, 15. The RFP contemplated award without discussions, but advised that if discussions were necessary offerors might “be permitted to provide revised/additional supporting documentation to support an ‘acceptable’ rating.” Id. at 15, 16, 46. The agency received a number of timely proposals, including one from the protester. AR, Tab 13, Competitive Range Determination at 6. The protester’s proposal included a POC test cartridge and the “Cue Health Monitoring System” (analyzer). AR, Tab 6I, Cue Proposal at 1.