TITLE:  LSL Industries, Inc.--Costs, B-291777.2, August 18, 2003
BNUMBER:  B-291777.2
DATE:  August 18, 2003
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LSL Industries, Inc.--Costs, B-291777.2, August 18, 2003

   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:   LSL Industries, Inc.--Costs
    
File:            B-291777.2
    
Date:              August 18, 2003
    
Michael C. Poliner, Esq., Poliner & Luks, for the protester.
Maura C. Brown, Esq., Department  of Veterans Affairs, for the agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Request for recommendation that protest costs be reimbursed is denied,
even though agency took corrective action in response to the protest,
where record does not establish that the protest was clearly meritorious.
DECISION
    
LSL Industries, Inc. requests that we recommend that it be reimbursed the
costs of filing and pursuing its protest against the Department of
Veterans Affairs* (VA) rejection of its samples under a *sources sought*
notice, and the resultant issuance of a request for quotations only to
[DELETED], with respect to a blanket purchase agreement for urinary
drainage bags.
    

   We deny the request.
    
The *sources sought* notice, published on VA*s Federal Business
Opportunities (VA FedBizOps) website on March 8, 2002, requested that
potential offerors submit samples and detailed product literature for a
number of medical/surgical items, including urinary drainage bags, for
evaluation under stated criteria for each item. 
    
LSL submitted samples of a urinary drainage bag.  On September 26, 2002,
after being advised that its product did not meet several of the stated
criteria in the notice, LSL filed an agency-level protest challenging the
finding of noncompliance and asserting, among other things, that the
drainage bags submitted by [DELETED] did not meet the following
criterion:  *17.  Anti-Reflux Device or Chamber (Does Not Allow Liquid to
Flow Back Up Catheter Tubing and Allow Unimpeded Flow of Liquid to Bag).* 
VA FedBizOps Notice, Criterion No. 17.  According to LSL, the [DELETED]
bags *do not have an anti‑reflux device that prevents liquid back
flow,* and this could be shown by turning the bags upside down when filled
with liquid.  LSL Agency-Level Protest, Sept. 26, 2002, at 2.
    
VA denied LSL*s agency-level protest, and on December 16 LSL filed a
protest with our Office in which it reiterated several of its arguments,
including its claim that the [DELETED] urinary drainage bags did not meet
the anti-reflux criterion.  In support of this argument, LSL asserted that
the product literature for the [DELETED] models in question, copies of
which it furnished with its protest, did not include a claim that the
devices prevented any backflow.  VA responded in its January 14 report to
our Office that its evaluation had been based on *simulated actual use,
product literature and established clinical experience*; that a
medical/surgical user group had appropriately determined LSL*s urinary
drainage bag to be unacceptable; and that the evaluation of the [DELETED]
models indicated that they prevented liquid backflow.  Agency Report,
Jan. 14, 2003, at 4, 9, Declaration of Chairperson of Medical/Surgical
User Group.
    
In its January 27 comments on the agency report, LSL narrowed its protest
to its allegation that VA had improperly relaxed the anti-reflux
criterion.  In this regard, LSL distinguished between systems (such as
that offered by LSL) that have a valve that prevents liquid from flowing
back up the catheter, and systems (such as that offered by [DELETED]) that
have anti-reflux chambers that serve as a housing for dripping, but
nevertheless allow liquid to flow back up the catheter tubing.  LSL
Comments, Jan. 27, 2003, at 2.
    
VA responded in a supplemental report that there was no requirement for a
valve but, instead, only a requirement for a *device or chamber* in which
no liquid flowed back up the catheter tubing.  In this regard, VA reported
that it had undertaken a simulation of actual clinical use, in which the
bags were filled with 8 ounces of water, tilted horizontally, and raised
to or above the level of the drainage tubing several times to simulate
possible reversal of the gravitational flow, so as to determine whether
fluid would reflux back into the tube.  According to the agency, while it
*would have rejected any drainage bag that allowed liquid to flow back up
the catheter tubing,* in fact no backflow occurred with any of the
submitted bags and thus all were determined to meet this criterion. 
Supplemental Agency Report, Feb. 3, 2003, Second Declaration of
Chairperson of Medical/Surgical User Group.  The agency recognized that
reflux could be forced in any system through the application of *abnormal
and excessive pressure,* but affirmed the position that the tests
conducted by the agency simulated *actual use,* and that the products
tested did not allow fluid to back up into the tubing.  Id.
    
In its response (dated February 11), LSL further clarified its position on
anti-reflux chambers.  According to the protester, there are three types
of drainage bags.  First, there are bags that do not provide any specific
protection against the backflow of liquid from the bag.  Second, there are
bags with anti-reflux chambers that
    
provides some protection against backflow, but will allow liquid to flow
unimpeded back through the catheter tubing in many circumstances.  These
bags contain a feature known in the industry as a *chamber,* which is a
small cavity within the drainage bag. . . .  [T]he chamber will catch very
small amounts of back flow, which is helpful for inadvertent errors that
are immediately rectified.  Should the error last more than a second or
two, however, the chamber will fill up with urine.  Once the chamber is
filled, the drainage bag is no different than a drainage bag with no
protection at all‑‑at that point, the liquid will flow
unimpeded back into the catheter tube and into the bladder.
LSL Comments, Feb. 11, 2003, at 2-3.  Finally, according to LSL, there are
bags that contain a mechanical valve considered to be an
*anti‑reflux device,* which closes when the flow reverses itself,
thus preventing any backflow regardless of how long the bag is in a
reverse flow position. 
    
In support of its position, LSL furnished with its February 11 comments a
copy of an e-mail in which a [DELETED] sales representative differentiated
between two types of [DELETED]  urinary drainage bags:  (1) bags, as
selected by VA, that have an anti‑reflux chamber, and (2) bags with
a MonoFlo anti‑reflux valve.  According to the e-mail, *[t]he anti
reflux valve (MonoFlo) does not allow the backflow of urine into the
tubing.  The anti reflux chamber does not prevent such backflow.*  LSL
Comments, Feb. 11, 2003, attach.  LSL also furnished a sworn declaration
from its president stating that, in response to an inquiry from LSL, a
named nurse at [DELETED] had left a voice-mail message addressing the
difference between [DELETED] drainage bags with anti‑reflux
chambers, such as the bag selected by VA, and [DELETED] bags with
anti‑reflux devices.  According to LSL, the [DELETED] nurse stated
that while an anti-reflux chamber prevents urine backflow into the
drainage tube, it does not prevent all reflux.  The [DELETED] nurse,
according to LSL, stated that with an anti‑reflux device there
should not be any backflow.  As for VA*s test, which confirmed compliance
with the anti-reflux criterion, LSL suggested that it may have been flawed
because (1) VA had not sufficiently filled the urinary drainage bags with
liquid, and/or (2) the bags were not elevated above the drainage tubing
for a sufficiently long period of time.
    
By letter of February 20, VA advised our Office that it had confirmed with
[DELETED] the contents of the [DELETED] e-mail furnished by LSL, and
specifically confirmed with [DELETED] that there could be reflux with
[DELETED] selected bag, which has an anti‑reflux chamber.  VA
advised that it would cancel the procurement and issue a new *sources
sought* notice.  After our Office dismissed the protest based on VA*s
determination to take corrective action, LSL filed this request for a
declaration of entitlement to protest costs.
    
Under the Competition in Contracting Act of 1984, our Office may recommend
that protest costs be reimbursed only where we find that an agency*s
actions violated a procurement statute or regulation.  31 U.S.C. S:
3554(c)(1) (2000).  Our Bid Protest Regulations provide that, where the
contracting agency decides to take corrective action in response to a
protest, we may recommend that the protester be reimbursed the costs of
filing and pursuing its protest, including reasonable attorneys* fees.  4
C.F.R. S: 21.8(e) (2003).  This does not mean that costs should be
reimbursed in every case in which an agency decides to take corrective
action; rather, a protester will be reimbursed its costs where an agency
unduly delayed its decision to take corrective action in the face of a
clearly meritorious protest.  Griner*s-A-One Pipeline Servs.,
Inc.--Entitlement to Costs, B-255078.3, July 22, 1994, 94-2 CPD P: 41.  A
protest is *clearly meritorious* when a reasonable agency inquiry into the
protester*s allegations would show facts disclosing the absence of a
defensible legal position.  Department of the Army--Recon., B-270860.5,
July 18, 1996, 96-2 CPD P: 23 at 3.  The mere fact that an agency decides
to take corrective action does not establish that a statute or regulation
clearly has been violated.  Spar Applied Sys.--Declaration of Entitlement,
B-276030.2, Sept. 12, 1997, 97-2 CPD P: 70 at 5. 
    
Here, we conclude that there is no basis for recommending that LSL be
reimbursed its protest costs because the protest was not, in our view,
clearly meritorious.  First, the protester conceded in its February 11
comments that the terms *device* and *chamber* were understood in the
industry to have separate, distinct meanings, with only the term *device*
meaning a valve.  LSL Comments, February 11, 2003, at 5.  Thus, while LSL
essentially argues in its protest that anti-reflux chambers do not prevent
liquid from flowing back up the catheter tubing, and thus cannot satisfy
the anti‑reflux criterion, the *sources sought* notice*s reference
to an *Anti-Reflux Device or Chamber* indicated that bags with either a
valve or an anti‑reflux chamber indeed would meet the agency*s
needs.  Further, the record indicates that VA based its determination of
[DELETED] compliance with the anti-reflux criterion, in part, on a
simulation of actual clinical use, in which no backflow occurred with any
of the tested bags.  It was only in LSL*s February comments on the agency
report that the agency was presented for the first time with information
clearly calling into question the determination that there would be no
reflux with the selected bags; specifically, these comments included
information from representatives of the manufacturers of the selected bags
indicating that there could be reflux even where the bag included an
anti‑reflux chamber.  In these circumstances, we find no basis for
concluding that the agency had failed to undertake a reasonable inquiry
into the protester*s initial allegations that would have shown facts
disclosing the absence of a defensible legal position.  The fact the
agency ultimately came to the position, as a result of the new information
presented by the protester, that bags with an anti-reflux chamber would
not meet its needs may have justified the VA*s taking corrective action,
but it does not establish that selection of such bags initially was
unlawful.  We conclude that the
agency did not unduly delay its decision to take corrective action in the
face of a clearly meritorious protest.   
    
The request for a recommendation that costs be reimbursed is denied.   
    
Anthony H. Gamboa
General Counsel