There’s an important difference between saying you’re going to comply with solicitation requirements and actually complying with them. Here, the solicitation required virus test kits. The agency found the protector’s kit did not comply with the requirements. The protester argued regardless of the kit it had provided, it had certified that it was not taking exception to the solicitation and would provide a fully compliant kit. GAO determined that the certification was meaningless. The solicitation required a compliant kit. Merely stating that your kit will comply does not suffice.
Cue Health, Inc., GAO B-420528, B-420528.2
Background
The Defense Logistics Agency (DLA) posted a solicitation seeking COVID and influenza test kits. The solicitation stated the test kits had to be self-contained, that is, everything needed for the test had to be in the kit.
DLA received a proposal from Cue Health but excluded the proposal from the competitive range. DLA determined that Cue’s test kit did not include control swabs and thus was not self-contained. The agency further concluded that Cue’s kit could not be made technically acceptable because its revised kit would need FDA approval. Cue protested
Legal Analysis
Cue’s Certification Was Irrelevant
Cue contended DLA erred in finding its proposal unacceptable. Cue argued that it expressly certified that it took no exception to the solicitation’s terms and acknowledged that it would provide control swabs to DLA at no additional cost. But GAO found that Cue’s certification was beside the point. Cue had not submitted a self-contained kit as required by the solicitation. Cue’s kit required, but did not contain, test swabs. DLA reasonably concluded Cue took exception to the solicitation’s terms.
Competitive Range Determination
Cue alleged that DLA unreasonably concluded that its proposal was not susceptible to being made acceptable without major revisions. GAO disagreed. Cue provided a kit that did not meet the minimum requirements. Cue could not simply make its kit acceptable; instead it would have to submit an entirely new kit.
Disparate Treatment
Cue asserted DLA disparately evaluated proposals because that agency allowed other offerors to submit documents during discussions that made their proposals acceptable, but did not give Cue the same opportunity. GAO noted, however, that unlike Cue, these other offerors had submitted test kits that satisfied the solicitation’s minimum requirements.
Cue is represented by Scott Arnold, Dominique Casimir, Justin A. Chiarodo, and Elizabeth N. Jochum of Blank Rome LLP. The agency is represented by Katherine B. McCulloch and Mariam Ibrahim of the Defense Logistics Agency. GAO attorneys Sarah T. Zaffina and Jennifer Westfall-McGrail participated in the preparation of the decision.
