AmerisourceBergen Drug Corp. v. United States

60 Fed. Cl. 30, 2004 WL 626540
CourtUnited States Court of Federal Claims
DecidedMarch 25, 2004
DocketNo. 04-0063C
StatusPublished
Cited by10 cases

This text of 60 Fed. Cl. 30 (AmerisourceBergen Drug Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AmerisourceBergen Drug Corp. v. United States, 60 Fed. Cl. 30, 2004 WL 626540 (uscfc 2004).

Opinion

OPINION

MARGOLIS, Senior Judge.

This post-award bid protest is before the Court on the parties’ cross-motions for summary judgment on the administrative record. The parties completed briefing on March 5, 2004, and oral argument on the motions was held on March 11, 2004. Plaintiff, AmerisourceBergen Drug Corporation (“ABC”) challenges the United States’, acting through the Department of Veterans Affairs, (“VA” or “defendant”), award of a contract to McKesson Corporation (“McKesson” or “defendant-intervenor”), for the distribution of pharmaceutical products. Plaintiff challenges the VA’s award, contending that the price proposal on which the VA’s award is based is prohibited by the solicitation. Plaintiff requests that this Court issue a permanent injunction terminating the award to McKesson and directing the VA to make award of the contract to ABC for all the regions involved, or, at a minimum, for Regions 1-13. In the alternative, plaintiff requests that this Court issue a permanent injunction ordering the VA to amend the solicitation to adequately reflect the VA’s needs, and to reopen competition to all offerors within the competitive range. After careful consideration of the parties’ briefs and oral arguments, this Court DENIES plaintiffs motion and GRANTS defendant’s [32]*32and defendant-intervenor’s motions for summary judgment on the administrative record.

FACTS

1. The Solicitation

On June 20, 2003, the United States Department of Veterans Affairs issued Solicitation No. 797-PV-03-002 (“Solicitation” or “RFP”) for the procurement of pharmaceutical product distribution. The solicitation provided for a contract with a base period of two years, with three two-year renewable options. The government estimated the value of the contract to be $24 billion over the entire eight-year period. The VA issued the solicitation in connection with the Veterans Affairs National Acquisition Center’s (“NAC”) Pharmaceutical Prime Vendor (“PPV’) program. The solicitation contemplated award of one or more requirements contracts under which a PPV contractor distributes pharmaceutical products to the VA and other designated federal agencies. The PPV contractor purchases pharmaceutical products from various government supply contracts and "is responsible for delivering the products to the participating agencies whenever they place an order with the PPV contractor. The solicitation listed 665 government facilities that would utilize the contract’s services. These facilities were divided into 14 regions. Regions 1-13 were divided by the geographic location of the customer base. Region 14 consisted of: (1) the Consolidated Mail Outpatient Pharmacy (“CMOP”) facilities: (2) the HHS, Service Supply Center facilities; and (3) the NAC accounts. These facilities service a customer base that spans several regions.

Under the solicitation, proposals were evaluated with respect to: (1) Price, (2) Past/Current Performance, (3) Technical Approach, and (4) Small Disadvantaged Business (“SDB”) participation. Price was the most important evaluation factor, and accounted for [* * *] of the evaluation. Past/Current Performance and Technical Approach were the next most important evaluation factors, and each accounted for [* * *] of the evaluation. SDB Participation was the least important evaluation factor, and accounted for [* * *] of the evaluation.2 The RFP indicated that award would be made to the offeror whose offer represented the best value to the government, considering both price and non-price factors. With respect to non-price factors,3 the VA scored the proposals using ratings of Exceptional, Highly Acceptable, Acceptable, Marginally Acceptable, and Unacceptable.

The solicitation required offerors to submit written proposals consisting of a Business proposal (“BP”) and a Technical proposal (“TP”). The BP was to include information regarding price, current and past performance, and SDB participation. The TP was to include an implementation plan (in the form of a chart demonstrating the offeror’s implementation work schedule); a training schedule (in the form of a chart illustrating a training timeline); and a distribution center map or chart. The solicitation informed offerors that the VA did not want a lengthy written explanation on how the offeror would perform the contract. The solicitation provided for a two-hour oral presentation that was “intended to provide the offeror the opportunity to discuss, describe, highlight and expand upon the information submitted as part of their written proposal and the requirements of [the] solicitation.” Administrative Record (“AR”) 0184.

The RFP was structured as a commercial-item acquisition under Federal Acquisition Regulation (“FAR”) Part 12 and required offerors to submit pricing in terms of negative distribution fees. The pharmaceutical prices are set through federal contracts between the government and the manufacturer. Negative distribution fees are calculated by subtracting the discount offered by the PPV [33]*33contractor from the actual cost of the products. The solicitation indicated that the VA would award the highest rating to the offeror providing the highest negative distribution fee.4

The solicitation explained that offerors were permitted to submit offers on “one, more than one, or each and every one of the identified regions.” AR 0131. The government made clear, however, that it would not accept any offers submitted “only as an ‘ALL OR NONE’ offer.” Id. The solicitation also allowed offerors to submit more than one pricing proposal. If an offeror chose to submit an additional pricing proposal, which the solicitation referred to as an alternate offer, an offeror was required to clearly identify the offer as an alternate offer. AR 0260-73. Further, on every page of the fee schedule, the solicitation informed offerors that “[i]n order to be eligible for award, any Offeror submitting alternate offers (which are multiregion offers) also must submit offers for each individual region offered in the alternate offer.” Id. In addition, the RFP contained FAR 52.212 — 1(h), which permits the government to “accept any item, or group of items of an offer, unless the offeror qualifies the offer by specific limitations.” AR 0177. Consequently, the solicitation allowed the VA to award the contract on a regional or multiple regional basis, depending on which proposal offered the best value to the government.

The solicitation set aside three of the 13 geographic regions (6, 7 and 8) for the participation of small business concerns. The solicitation noted, however, that the VA reserved the right to dissolve the set-asides under two circumstances: (1) failure to receive at least two offers from qualified small business concerns, or (2) a determination by the contracting officer that no offer submitted by a small business concern was acceptable. In the event of dissolution, the RFP provided that the VA would consider offers for the regions on a “full and open unrestricted basis from all responsible business concerns (regardless of size).” AR 0257. Offerors, therefore, were encouraged to submit offers for the set-aside regions. AR 0139-40. The solicitation noted that because the VA intended to award the contract without discussion, offerors should submit their best terms in their initial offers.

II. The Proposals

In response to the solicitation, the VA received eight offers. ABC submitted individual price proposals for all 14 regions, and [* * *].

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Bluebook (online)
60 Fed. Cl. 30, 2004 WL 626540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amerisourcebergen-drug-corp-v-united-states-uscfc-2004.