Beckman Coulter, Inc. (W81K00-22-Q-0109)

B-421748 Jul 28, 2023 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Beckman Coulter, Inc., of Indianapolis, Indiana, protests the award of a contract to Sysmex America, Inc., of Lincolnshire, Illinois, under request for quotations (RFQ) No. W81K00-22-Q-0109, issued by the Department of the Army, Army Medical Command, for laboratory equipment and maintenance services for flow cytometry testing. The protester alleges the award was improper because the awardee should have been found to be technically unacceptable. We dismiss the protest as untimely. View Decision Decision Matter of: Beckman Coulter, Inc. File: B-421748 Date: July 28, 2023 Thomas M. Holl, Beckman Coulter, Inc., for the protester. Andrew J. Smith, Esq., Natalie W. McKiernan, Esq., Blaine L. Hutchison, Esq., Seth Ritzman, Esq., and Nhu T. Tran, Esq., Department of the Army, for the agency. Cree W. Townsend, Emily R. O’Hara, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the awardee’s technical acceptability is dismissed as untimely where the protest was filed more than 10 days after the protester received the information that formed the basis of protest. DECISION Beckman Coulter, Inc., of Indianapolis, Indiana, protests the award of a contract to Sysmex America, Inc., of Lincolnshire, Illinois, under request for quotations (RFQ) No. W81K00-22-Q-0109, issued by the Department of the Army, Army Medical Command, for laboratory equipment and maintenance services for flow cytometry testing. The protester alleges the award was improper because the awardee should have been found to be technically unacceptable. We dismiss the protest as untimely. BACKGROUND The Army issued the RFQ on July, 14, 2022, using the simplified acquisition procedures for the purchase of commercial items prescribed in subpart 13.5 of the Federal Acquisition Regulation (FAR), for laboratory equipment and flow cytometry testing at the San Antonio Military Medical Center, Fort Sam Houston, Texas. Req. for Dismissal (RFD) at 1; RFD, exh. 1, RFQ at 60. The RFQ anticipated that award would be made on a lowest-priced, technically acceptable (LPTA) basis. RFQ at 95. As relevant here, the solicitation required all testing materials to be Food and Drug Administration (FDA) approved platforms. RFQ at 52. On May 3, 2023, the Army notified Beckman Coulter that Sysmex had been selected for award. RFD, exh. 2, Unsuccessful Offeror Notification at 1. Eight days later on May 11, the protester emailed the contract specialist, inquiring, among other things, whether the awardee’s testing equipment “offer[ed] the required FDA-cleared . . . testing solutions” as specified in the solicitation. RFD, exh. 3, Email from Protester to Agency at 2. The contract specialist replied to the protester’s email the same day, confirming that the awardee “complied with all the terms and conditions of Solicitation W81K00‐22‐Q‐0109 for the Flow Cytometry Testing Requirement.” Id. at 2. The protester then requested a phone call with the contract specialist to discuss the award, stating its belief that the awardee did not hold any FDA approvals for flow cytometry testing and that the awardee’s offer, therefore, should not have been considered technically acceptable. Id. at 1-2. On May 15, the agency conducted a teleconference with the protester.[1] During that call, the protester communicated the same questions and claims about the awardee’s offer that the firm had previously made in its emails. RFD at 3. The contracting officer informed the protester that the Procurement Integrity Act precluded the agency from providing any additional information about the content of the awardee’s quotation. Id. After this discussion, on May 19, the protester filed an agency-level protest with the Army. RFD, exh. 5, Agency-Level Protest at 1. On June 6, the agency dismissed the protest as untimely because the protest had been filed more than 10 days after the protester knew or should have known the basis of its protest. RFD, exh. 4, Agency-Level Protest Decision at 2. On June 13, the protester filed this protest with our Office. DISCUSSION Prior to the agency report due date, the agency requested that our Office dismiss Beckman Coulter’s protest as untimely because Beckman was notified on May 3 that award had been made to Sysmex America. RFD at 2. According to the agency, the protester knew or should have known of the basis for protest at that time, and the protest should have been filed no later than 10 days from receipt of the notice of award, which, in this instance, would have been May 15.[2] Id. The protester contends that the basis of its protest was not known until May 11, when it received the response email from the agency, stating that the awardee’s testing solution “complied with all the terms and conditions of the solicitation.” Protest at 2.