Yes. Tell BMW NA that the code that failed is the customer code for missing drivability expectations and that the BMW and BMW NA has failed to program this code into their central memory banks.
Right a litter to BMW NA and cc the dealer. THey just do not want to replace the transmission and it becomes you against the BMW NA spin machine. Sorry for reality but telling you straight. Just write a letter and send it off and keep doing so until you get a resolution. BMW is purely putting money against the odds that you will give up.