Seaborn Health Care, Inc. v. United States

101 Fed. Cl. 42, 2011 U.S. Claims LEXIS 2012, 2011 WL 4863958
CourtUnited States Court of Federal Claims
DecidedSeptember 29, 2011
DocketNos. 11-489C, 11-500C
StatusPublished
Cited by17 cases

This text of 101 Fed. Cl. 42 (Seaborn Health Care, Inc. 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
Seaborn Health Care, Inc. v. United States, 101 Fed. Cl. 42, 2011 U.S. Claims LEXIS 2012, 2011 WL 4863958 (uscfc 2011).

Opinion

OPINION AND ORDER 1

WHEELER, Judge.

In this post-award bid protest, two disappointed offerors, Seaborn Health Care, Inc. (“Seaborn”) and Top Echelon Contracting, Inc. (“Top Echelon”), challenge a Blanket Purchase Agreement (“BPA”) awarded by the Department of Veterans Affairs (“VA”) to Teamstaff Government Solutions, Inc. (“Teamstaff’). The BPA is for pharmacist and pharmacy technician staffing services at seven VA mail order pharmacy facilities in the United States. The VA conducted the procurement as a Federal Supply Schedule (“FSS”) purchase under Federal Acquisition Regulation (“FAlR”) Subpart 8.4. The VA evaluated proposals on a “best value” basis, taking into account each offeror’s technical excellence, past performance, socioeconomic status, and price. The VA reserved the right to make separate awards for each of the seven facilities, but instead it made one award for all of the facilities to Teamstaff.

For the reasons explained below, the Court must dismiss Seaborn’s protest for lack of standing. While Seaborn submitted a proposal for all seven VA facilities, its rating on the non-price evaluation factors was no better than eighth among eleven evaluated offerors. Seaborn contests the VA’s evaluation of its own proposal as well as Team-staffs, but it does not question the evaluation of any of the other six offerors who were rated higher than Seaborn overall. On the record presented, the Court finds that Sea-born could not materially improve its position to be in contention for award. Accordingly, Seaborn is not an “interested party” under 28 U.S.C. § 1491(b)(1) because it does not have a “substantial chance” of being awarded [46]*46the contract for any of the VA facilities. Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378 (Fed.Cir.2009); Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed.Cir.2009).

Top Echelon submitted a proposal for only one VA facility near Dallas, Texas, and the VA rated Top Echelon very highly on the non-price evaluation factors. The VA regarded Top Echelon as equal to Teamstaff, but Top Echelon’s price was substantially higher than Teamstaffs. Thus, on the basis of a lower price, the VA awarded the Dallas facility to Teamstaff. Top Echelon contests the award to Teamstaff on multiple grounds: (1) that the VA did not employ the evaluation criteria stated in the solicitation; (2) that the VA failed to consider negative past performance information regarding Teamstaff; (3) that the VA held an unstated preference for a single vendor; and (4) that Teamstaff did not possess a current FSS contract as required by the solicitation. The Court will address each of Top Echelon’s arguments in turn, but concludes that Top Echelon’s protest must be denied. Even if the VA did not conduct a perfect procurement in this instance, the VA’s selection of the lower-priced of two highly rated proposals was a reasonable decision that the Court will not disturb. See Andersen Consulting v. United States, 959 F.2d 929, 932 (Fed.Cir.1992) (“Any good lawyer can pick lint off any Government procurement, pundits say. We will not set aside an award, even if violations of law are found, unless those violations have some significance.”) (quoting Andersen Consulting, GSBCA No. 10833-P, 91-1 BCA ¶ 23,474 (1990) at 117,759).

Factual Background2

On August 17, 2010, the VA issued Request for Quotation VA-797M-10-RQ0212/GSA E-Buy RFQ 496494 to establish BPAs for the staffing of six VA Consolidated Mail Order Pharmacy (“CMOP”) facilities. The six CMOP facilities are located in Charleston, South Carolina; Hines, Illinois; Lancaster (Dallas), Texas; Leavenworth, Kansas; Murfreesboro, Tennessee; and Tucson, Arizona. The solicitation also included the staffing of a “Meds by Mail” facility in Dublin, Georgia. (AR 14.) The CMOP facilities prepare and dispense prescriptions and medical products by mail to military veterans and other patients. (AR 15.)

The VA intended to award one BPA for staffing services at each facility by contracts ing with companies who possessed General Services Administration (“GSA”) FSS contracts. (AR 30, 2492.) The VA sent the solicitation only to prospective offerors holding a valid FSS contract for pharmacists and pharmacy technicians under FSS Schedule 621 I, Professional and Allied Healthcare Staffing Services. (AR 14, 40-46.) The VA requested in the solicitation that offerors quote discounts from their existing FSS contract prices for pharmacists and pharmacy technicians. (AR 31.) The BPAs were to constitute one-year agreements with four option years. (AR 28.) The BPA would expire at the end of the agreement, or upon the expiration of the FSS contract, whichever occurred earlier. Id.

The VA employed a best value method for evaluating proposals. The VA advised offer-ors in the solicitation that the BPAs “will be established with those responsible offerors whose offers conform to the solicitation and will be most advantageous to the Government, price and other factors considered.” (AR 30.) The solicitation further stated that the non-price evaluation factors of technical excellence, past performance, and socioeconomic status were listed “in descending order of importance” and “when combined, are slightly more important when compared to price.” Id. The VA’s internal Source Selection Plan Outline indicated the weight for each evaluation factor: technical excellence (40%), past performance (6%), socioeconomic status (5%), and price (49%). (AR 6-11.) The VA divided the technical excellence factor into two sub-factors: approach to the scope of work and quality control plan, each with a weight of 20%. (AR 7.) The VA intended to evaluate proposals by using an adjectival rating system for the non-price [47]*47factors. Id. The VA would evaluate price by using estimated annual hours for pharmacists and pharmacy technicians at each location, multiplied by the offeror’s firm fixed hourly rates for that location. (AR 31, 36-37.)

By the proposal closing date of September 24, 2010, the VA received proposals from 24 offerors. (AR 2492-93.) Among the offerors were the three parties to this proceeding: Seaborn, Top Echelon, and Teamstaff. Id. Seaborn is the incumbent contractor at the Leavenworth, Kansas facility; Top Echelon is the incumbent at the Dallas facility; and Teamstaff is the incumbent at the other five facilities. (AR 1574-1600, 1635-44, 1610-18.)

The VA assembled a six-person technical evaluation team to evaluate proposals. (AR 2493.) This team met on October 12-14 and November 8-11, 2010 at the VA’s National Acquisition Center in Hines, Illinois to perform the evaluation. Id. Of the 24 proposals received, the VA determined that thirteen were unacceptable based upon “a lack of information provided and identification of significant weaknesses and deficiencies.” (AR 2496.)

The adjectives to be used for rating the technical excellence factor were: Exceptional, Above Average, Average, Marginal, and Unacceptable. (AR 2494-95.) For the past performance factor, the adjectives were: Excellent, Very good, Good, Fair, Poor, and Neutral.

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101 Fed. Cl. 42, 2011 U.S. Claims LEXIS 2012, 2011 WL 4863958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seaborn-health-care-inc-v-united-states-uscfc-2011.