BNUMBER: B-270698; B-270698.4; B-270698.5; B-270698.7
DATE: April 10, 1996
TITLE: Physician Corporation of America
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DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Physician Corporation of America
File: B-270698; B-270698.4; B-270698.5; B-270698.7
Date:April 10, 1996
David R. Hazelton, Esq., Roger S. Goldman, Esq., C. Chad Johnson,
Esq., and Robert Braumuller, Esq., Latham & Watkins, for the
protester.
Peter L. Wellington, Esq., Daniel C. Sauls, Esq., and Mark J.
Hulkower, Esq., Steptoe & Johnson, for Humana Military Healthcare
Services, Inc., an intervenor.
Ellen C. Callaway, Esq., and Laurel C. Gillespie, Esq., Office of the
Civilian Health and Medical Program of the Uniformed Services, 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
1. In determining whether any action of a former government employee
may have resulted in prejudice in favor of the awardee, the General
Accounting Office will consider all relevant evidence, including
whether the former government employee had access to competitively
useful inside information generated prior to the protested
procurement.
2. Protest that awardee obtained an unfair competitive advantage by
virtue of its employment of former government employees is denied
where either the government employees did not possess inside
information that would provide an unfair competitive advantage or the
record provides no basis for concluding that the awardee benefited
from the inside information.
3. Protest that awardee obtained an unfair competitive advantage from
its alleged receipt of source selection sensitive information from a
government employee is denied where the contracting officer furnished
the information to all offerors.
4. Protest that offeror's proposal should have been credited with
more technical strengths and fewer weaknesses because its allegedly
similar proposal in a prior procurement for the same type of services
was credited with more strengths and fewer weaknesses is denied; each
procurement action is a separate transaction and, thus, the evaluation
conducted under one is not relevant to the propriety of the evaluation
under another for purposes of a bid protest.
DECISION
Physician Corporation of America (PCA) protests the award of a
contract by the Office of Civilian Health and Medical Program of the
Uniformed Services (OCHAMPUS) to Humana Military Healthcare Services,
Inc. under request for proposals (RFP) No. MDA906-94-R-0002. The RFP
sought proposals to provide health care and associated administrative
services in the states of Alabama, Florida, Georgia, Mississippi,
South Carolina, and Tennessee, and in portions of Louisiana and
Arkansas (Managed Care Support Regions 3 and 4) for Civilian Health
and Medical Program of the Uniformed Services (CHAMPUS) beneficiaries,
who include military service retirees, their dependents, and
dependents of active duty members. PCA primarily argues that Humana
obtained an unfair competitive advantage in the procurement by virtue
of its employment of former government employees and its alleged
receipt of source selection sensitive information from another
government employee. In addition, PCA challenges the evaluation of
technical proposals and asserts that Humana's proposal failed to
comply with mandatory solicitation requirements.
We deny the protests.
BACKGROUND
Under the RFP, issued on August 1, 1994, offerors were required to
propose three health care options--the TRICARE options--for CHAMPUS
beneficiaries. Specifically, the RFP required offerors to propose a
health care system under which CHAMPUS beneficiaries could opt to
obtain services: (1) from providers of their own choosing on a
fee-for-service basis, (2) from members of the contractor's preferred
provider organization (PPO), or (3) from a contractor-established
health maintenance organization (HMO).
The RFP stated that the government intended to award a fixed-price
contract (with the price subject to specified adjustments during
performance) for a base period with five 1-year options. The
fixed-price nature of the contract, however, was modified by a
risk-sharing arrangement under which, in the event of health care cost
overruns, the government and the contractor will share responsibility
for absorbing the excess cost above a set percentage of the contract
price. Responsibility will continue to be shared under a formula set
out in the RFP until the contractor has absorbed overruns equal to its
cumulative net gains under the contract and the amount of contractor
equity that it put at risk in its proposal. At that point, the
contract will begin to function on a cost reimbursement basis, with
the government assuming total responsibility and paying for all
additional health care costs. An offeror's putting more equity at
risk postpones the point of total government responsibility and is
thus favorable to the government. The RFP required that offerors
place a minimum of $100 million at risk, but permitted them to exceed
that minimum.
Actual health care costs will be a function of a large number of
variables, such as the number of CHAMPUS beneficiaries (and, in
particular, the participation of beneficiaries in the HMO and PPO
options), inflation, and the contractor's ability to manage health
care utilization. The RFP explained that offerors were to propose
"trend factors," with appropriate justification, for many of these
variables. The RFP advised offerors that the agency would substitute
its independent government cost estimate (IGCE) factors for those
proposed by offerors in the case of trend factors over which the
contractor was unlikely to have control (such as inflation). With
respect to the trend factors under the contractor's control (such as
utilization management, the percentage of beneficiaries participating
in the HMO and PPO options, and discounts offered by health care
providers), the RFP provided for the agency to evaluate the realism of
each proposed factor based on the agency's judgment about "the likely
trends under the offeror's approach" and make appropriate adjustments.
The total probable health care cost for a proposal would be the
offeror's proposed health care cost, as modified above, plus a fixed
administrative price and the offeror's health care profit.
The RFP stated that, in the selection of an awardee, technical content
would be more important than cost. Specifically, the weighting ratio
was set out as 60 percent for technical and 40 percent for
cost. The technical score was the result of the evaluation of 14
tasks that are to be performed, plus experience and performance.
OCHAMPUS received five proposals from four offerors, including Humana,
PCA and two other firms, by closing time on March 3, 1995. All
proposals were included in the competitive range. At the conclusion
of discussions, OCHAMPUS requested submission of best and final offers
(BAFO) by August 2. Humana's BAFO received the highest weighted
technical score (604.16 points), with 3 exceptional, 13 more than
satisfactory and 0 unsatisfactory ratings; in contrast, PCA's BAFO
received the second highest technical score (594.35), with 0
exceptional, 8 more than satisfactory and 2 unsatisfactory ratings.
In addition, Humana's BAFO was evaluated as offering the lowest cost
to the government ($3,775,591,099), approximately 10 percent less than
the evaluated cost ($4,197,243,479) of PCA's BAFO. After calculation
of cost scores and normalization of both technical and cost scores,
Humana's BAFO received the highest overall "best buy" score (1,000
points), while PCA's BAFO received the second highest (950.1). Given
the higher technical score and lower cost of Humana's BAFO, the source
selection advisory council (SSAC) recommended award to Humana. When
the source selection official accepted this recommendation and
selected Humana for award, PCA filed these protests with our Office.
UNFAIR COMPETITIVE ADVANTAGE
PCA primarily argues that Humana obtained an unfair competitive
advantage in this procurement by virtue of its employment of former
government employees and its alleged receipt of source selection
sensitive information from another government employee. Based upon
our review of the record, and after conducting a hearing at which we
took testimony concerning the alleged actions of the government
employees, we conclude that OCHAMPUS reasonably determined not to
exclude Humana from the competition on the basis of the alleged unfair
competitive advantage.
Standard of Review
A contracting officer may protect the integrity of the procurement
system by disqualifying an offeror from the competition where the firm
may have obtained an unfair competitive advantage, even if no actual
impropriety can be shown, so long as the determination is based on
facts and not mere suspicion. NKF Eng'g, Inc., 65 Comp. Gen. 104
(1985), 85-2 CPD para. 638; Holmes and Narver Servs.,
Inc./Morrison-Knudson Servs., Inc., a joint venture; Pan Am World
Servs., Inc., B-235906; B-235906.2, Oct. 26, 1989, 89-2 CPD para. 379;
Laser Power Technologies, Inc., B-233369; B-233369.2, Mar. 13, 1989,
89-1 CPD para. 267. Where a protester alleges that the awardee has
obtained an unfair competitive advantage by virtue of its employment
of a former government employee, our role is to determine whether any
action of the former government employee may have resulted in
prejudice in favor of the awardee. General Elec. Gov't Servs., Inc.,
B-245797.3, Sept. 23, 1992, 92-2 CPD para. 196; FHC Options, Inc.,
B-246793.3, Apr. 14, 1992, 92-1 CPD para. 366; Technology Concepts and
Design, Inc., B-241727, Feb. 6, 1991, 91-1 CPD para. 132. In so doing, we
typically consider whether the former government employee had access
to competitively useful inside information, whether generated during
the procurement in question or previously, see Central Texas College,
71 Comp. Gen. 164 (1992), 92-1 CPD para. 121, as well as whether the
employee's activities with the firm were likely to have resulted in a
disclosure of such information.[1] See Textron Marine Sys., supra.
These are the same questions to be considered in reviewing an
allegation that source selection information has been disclosed to a
competing contractor. Guardian Technologies Int'l, B-270213 et al.,
Feb. 20, 1996, 96-1 CPD para. ___.
Employment of Former Government Employees
Humana Chief Executive Officer
PCA contends that Humana's hiring in (May 1994) of a retired Air Force
colonel as its Chief Executive Officer (CEO) gave Humana an unfair
competitive advantage in this procurement. Prior to his retirement in
1994, the CEO served as the Chief of the Managed Care Division, Office
of the Air Force Surgeon General. In that position, the CEO
formulated policies, program procedures and positions on managed care
initiatives, including TRICARE, for the Air Force Surgeon General and
participated in Department of Defense working groups concerned with
those issues. Of particular relevance here, in the September/October
1993 time period, the colonel contributed to the preparation of the
draft statement of work (SOW) for the Managed Care Support Region 6
solicitation, which was issued in November 1993. Hearing Transcript
(Tr.) at 265-274.
PCA bases its claim of an unfair competitive advantage on the
possibility that Humana's CEO may have had, indeed "presumably had,"
access to the undisclosed internal evaluation criteria developed for
the Region 6 procurement. In this regard, PCA notes that an
individual who briefly served as the contracting officer for Region 6
between November 1994 and January 1995 has executed a declaration
stating that she "knew that [the CEO] had participated in the
development of technical evaluation criteria for the Region 6
procurement." In addition, PCA more generally argues that Humana
possessed an unfair competitive advantage simply as a result of the
service of its CEO as a TRICARE procurement official.
We find that OCHAMPUS reasonably determined--on the basis of an
extensive investigation into the relevant facts and
circumstances--that Humana's employment of the CEO did not confer an
unfair competitive advantage on Humana. Humana's CEO testified at the
hearing in this matter that he in fact had never seen or discussed the
Region 6 evaluation criteria. Tr. at 270-271. This testimony was
consistent with prior statements he gave to the Office of the Air
Force Surgeon General in May 1994, and to OCHAMPUS during its
pre-award investigation in September 1995. In addition, declarations
executed by officials familiar with the Region 6 procurement and
responsible for development of the undisclosed Region 6 evaluation
criteria, including the chairman of the Region 6 source selection
evaluation board (SSEB), corroborated the CEO's statements. These
statements also are supported by the fact that the criteria were only
completed in August 1994, that is, 3 months after the CEO commenced
work with Humana. We find this evidence more persuasive than the
statement of the individual who served briefly as the contracting
officer for Region 6, particularly given that (1) she did not assume
her position until November 1994, which was approximately 6 months
after the CEO commenced work with Humana, and (2) the cited source for
her knowledge in this regard, the government's Lead Agent for Region
6, has contradicted her account. In these circumstances, we accord
her statement little weight. We conclude that OCHAMPUS reasonably
determined that Humana's CEO did not have access to the undisclosed
internal evaluation criteria developed for Region 6.
Further, the CEO's general familiarity with the TRICARE program and
his specific contribution to the preparation of the draft SOW for the
Region 6 solicitation also do not establish any improper advantage.
The relevant SOW was disclosed in the Region 6 solicitation and thus
cannot be considered inside information. Further, the mere employment
of an individual who is familiar with the type of work required and
helped prepare the specifications or SOW does not establish an unfair
competitive advantage, where the individual was not privy to the
contents of proposals or other inside information. See Guardian
Technologies Int'l, supra; Textron Marine Sys., supra; ITT Fed.
Servs. Corp., supra; General Elec. Gov't Servs., Inc., supra; FHC
Options, Inc., supra. We conclude that the record does not support
PCA's contention that Humana's CEO possessed inside information that
provided the firm an unfair competitive advantage.
Humana Utilization Management Director
Humana's parent company in December 1994, prior to submission of
Humana's initial proposal for Regions 3/4 in March 1995, hired a
retired colonel in the United States Air Force as its Director of
Utilization Management (UM). Prior to her retirement in 1994, the UM
Director served as the Chief of Utilization Management in the Managed
Care Division, Office of the Air Force Surgeon General. In that
position, the UM Director participated (August 1994) in the evaluation
of the UM portion of the BAFO submitted by a third firm (neither
Humana nor PCA) under the Managed Care Support Regions 9/10/12
solicitation. After being hired by Humana, she participated in
preparing the UM and quality management (QM) portions of Humana's BAFO
submitted on August 2. PCA maintains that her employment gave Humana
an unfair competitive advantage because of her knowledge of the
undisclosed internal UM/QM evaluation criteria for Regions 9/10/12,
which PCA asserts are similar to the internal UM/QM evaluation
criteria for Regions 3/4.
We conclude that OCHAMPUS reasonably determined that Humana's
employment of the UM Director did not confer an unfair competitive
advantage on Humana. In this regard, OCHAMPUS has reviewed each of
the increases in Humana's BAFO score under the evaluation subcriteria
in the UM/QM area, which totaled 160 "raw" points or approximately
48.8 weighted technical points, and concluded that these increases
were attributable to factors that were unrelated to the undisclosed
internal UM/QM evaluation criteria for Regions 9/10/12. For example,
OCHAMPUS found that 20 of the 160-point increase in the BAFO raw score
resulted from Humana's response to requirements--not included in the
Regions 9/10/12 procurement--concerning the military's lead agent in
each region.
OCHAMPUS further found that 80 of the 160 points were attributable to
corrections and clarifications prompted by specific discussion
questions and another 17 points were attributable otherwise to
providing specific information requested by the agency. For example,
noting that Humana had submitted identical charts with respect to
utilization rates experienced by Humana for differing time periods,
OCHAMPUS advised Humana during discussions that
"[t]he proposal has provided . . . access data from two time
periods that match the utilization reduction data. However,
many of the charts in the second time period appear to be
copied from the first time period."
Humana's BAFO score increased by 45 points when it submitted the
correct charts (which demonstrated a [DELETED]). Further, with
respect to review staff qualifications, OCHAMPUS asked Humana four
clarifying questions, three of which directed Humana either to resolve
an inconsistency between charts or to explain the source of work load
and productivity numbers, while the fourth requested Humana to explain
its staffing rationale. Humana's raw score increased 16 points when
it deleted the confusing staffing charts and provided its staffing
logic. Humana's raw score increased by seven additional points when
it responded to OCHAMPUS' direction during discussions to resolve an
inconsistency in its initial proposal as to when it would require
pre-authorization for psychoanalysis--[DELETED]--and also incorporated
into its proposal the approach taken in its commercial business of
[DELETED].
OCHAMPUS found that 43 of the 160-point increase in Humana's BAFO raw
score was attributable to Humana's including in its BAFO UM/QM plan
information already found elsewhere in its initial proposal. For
example, the SOW required the contractor to
"use review criteria published by InterQual, Inc . . . in
their most current version as the criteria for screening
medical and inpatient surgical care for first level review.
The contractor may use additional criteria . . . only when
they are not addressed by InterQual."
In addition, the solicitation referred offerors to review criteria
published by Health Management Strategies, International, Inc. (HMSI)
for reviews of mental health care. Agency evaluators noted that
Humana's initial UM plan did not discuss using [DELETED], but
considered the impact of this to be minimal since these were discussed
elsewhere in its proposal. Humana's BAFO technical score increased by
5 points when it responded as directed to OCHAMPUS' direction during
discussions to [DELETED]. Likewise, Humana's BAFO score increased by
5 points when it responded as specifically directed by OCHAMPUS and
included in its BAFO clinical quality management program plan a
discussion of [DELETED]--which had been included elsewhere in its
initial proposal--and [DELETED].
We find that the record shows that the answers to the questions in the
UM/QM area which led to the increases in Humana's score (1) were
reasonably suggested by the questions themselves, (2) resulted from
preexisting information (such as charts initially not furnished or
information initially included elsewhere in its proposal), (3)
reflected the incorporation of Humana commercial practice, or (4)
concerned areas and approaches not addressed by the Regions 9/10/12
criteria. We thus conclude that OCHAMPUS reasonably determined that
the increases in Humana's BAFO score under the UM/QM evaluation
subcriteria generally did not appear to be attributable to any
knowledge of the undisclosed internal UM/QM evaluation criteria for
Regions 9/10/12.
Furthermore, not only is there no evidence in Humana's BAFO changes
that they resulted from any knowledge of the Regions 9/10/12 internal
UM/QM evaluation criteria, the evidence in the record indicates that
it was unlikely such knowledge would even have been available to
Humana. Specifically, the record shows that the Regions 9/10/12
BAFO evaluators were prohibited from making or retaining copies of the
internal evaluation criteria and, because the copier was in an open
area outside the office of the chairman of the SSEB, it is unlikely
that they were able to do so. Tr. at 171, 237-238, 252-253. As a
result, Humana's UM Director was unlikely to have had a copy of the
Regions 9/10/12 criteria available to her when assisting in preparing
Humana's Regions 3/4 BAFO. Further, since the Regions 9/10/12
criteria were quite detailed, the passage of time between the service
of the UM Director as a Regions 9/10/12 BAFO evaluator in August 1994
and the commencement of the Regions 3/4 negotiations on May 16, 1995
made it unlikely that the UM Director could have remembered
significant portions of the Regions 9/10/12 internal UM/QM evaluation
criteria in sufficient detail and with sufficient reliability so as to
base Humana's Regions 3/4 BAFO on it. See Textron Marine Sys., supra;
General Elec. Gov't Servs., Inc., supra.[2] [3]
Likewise, we find no merit to PCA's argument that other aspects of the
government service of Humana's UM Director required a finding that
Humana had gained an unfair competitive advantage in the Regions 3/4
procurement from hiring her to assist in the preparation of its BAFO.
Thus, while PCA asserts that an unfair competitive advantage resulted
merely from the UM Director's familiarity with the TRICARE concept and
community and having served on an OCHAMPUS SSEB, the mere employment
of an individual who is familiar with the type of work required, but
who is not privy to the contents of proposals or other inside
information, does not itself confer an unfair competitive advantage.
Textron Marine Sys., supra. Likewise, while PCA speculates that the
UM Director may have played a significant role in the Region 6
procurement which amounted to participation in the restructuring of
the Region 6 TRICARE RFP, even if Humana's UM Director was involved in
rewriting the Region 6 solicitation (which OCHAMPUS denies),
participating in preparing specifications or a SOW which is
subsequently released to the public does not itself confer an unfair
competitive advantage. Id.[4] Finally, PCA claims that given her
position and alleged role in restructuring the Region 6 RFP, the UM
Director "may well have been involved in the review of [the Region 6
internal] evaluation criteria." This amounts to no more than
unsupported speculation and, moreover, is contradicted by the
statements of the Region 6 procurement officials most likely to be
aware of the facts, including two Region 6 contracting officers and
the chairman of the Region 6 SSEB.[5]
The record thus provides no basis for concluding that Humana acquired
an unfair competitive advantage in the Regions 3/4 procurement from
using its UM Director to assist in the preparation of its BAFO.
Disclosure of Source Selection Sensitive Information
PCA contends that Humana was the recipient of source selection
sensitive information during the procurement which gave it an unfair
competitive advantage.
The record indicates that in May 1995, after submission and evaluation
of initial proposals but before submission of BAFOs, one of the five
co-chairpersons of the Regions 3/4 SSEB contacted several of the
offerors regarding possible future employment after his forthcoming
retirement. After being contacted by telephone by the co-chairman,
Humana's CEO advised OCHAMPUS of the contact. OCHAMPUS immediately
relieved the co-chairman of his evaluation duties and undertook an
investigation. This investigation established that the co-chairman
was distributing a resume in which he described his most recent
experience as director of managed care for Regions 3/4 as: "Director
of $4.5 billion managed care contract for 6 states in the southeast
region of the United States. This contract will establish a triple
option managed care delivery system for 1.7 million beneficiaries."
(Although the co-chairman advised OCHAMPUS that with the permission of
Humana's CEO he had sent a copy of his resume to the CEO (and so
testified at the hearing), he had no knowledge as to whether Humana's
CEO had received the resume, and the latter individual denied
receiving it (and so testified at the hearing). Tr. at 24-26, 49-51,
330.) While the contracting officer determined that release of the
aggregate IGCE without disclosure of its components would afford no
competitively useful information (since an offeror could not determine
where to reduce its costs), he nevertheless advised all offerors in
writing that:
"It has been brought to my attention that certain information has
inadvertently been provided to one or more offerors.
"We are continuing this acquisition by ensuring impartiality and
preferential treatment for none. Therefore, this information is
to be provided to all offerors.
"The following is extracted from the document containing the
aforementioned information
'. . . $4.5 billion managed care contract for 6 states in
the southeast region of the United States. This contract
will establish a triple option managed care delivery
system for 1.7 million beneficiaries.'"
According to PCA, only Humana could benefit from the contracting
officer's letter, and it would have benefited whether or not its CEO
in fact received a copy of the resume, since the CEO would have
realized the significance of the contracting officer's letter coming
as it did shortly after he reported to OCHAMPUS the co-chairman's
contact. Tr. at 329. PCA notes that it unsuccessfully asked OCHAMPUS
for more information concerning the source of the excerpt; the
protester argues that this information was of no value without an
indication of its source.
We think, however, that a reasonable offeror receiving the contracting
officer's letter, advising of the need to disclose to all offerors
certain "inadvertently" disclosed information concerning the size of
the contract and expected beneficiary population in order to assure
that no offeror received an advantage from its prior release, would
assume that the information in question was source selection sensitive
information. In our view, offerors receiving the contracting
officer's letter, which in effect validated the significance of the
information with respect to projected contract size and beneficiary
population, were not significantly worse off than an offeror also
receiving the resume from the co-chairman (without explanation of this
information) in evaluating the significance of the information. In
any case, we note that the record indicates that the figure of 1.7
million beneficiaries--which referred to the total number of
beneficiaries of the military health care system, rather than just
CHAMPUS beneficiaries--set forth in the co-chairman's resume was
derived from publicly available information which also was included on
the data tapes furnished all offerors. Tr. at 34, 63-65. As such,
this information was not inside information the possession of which
would give rise to an unfair competitive advantage. See Textron
Marine Sys., supra; Person-Sys. Integration, Ltd., B-243927.4, June
30, 1992, 92-1 CPD para. 546; General Elec. Gov't Servs., Inc., supra.
The record thus provides no basis for concluding that Humana acquired
an unfair competitive advantage in the Regions 3/4 procurement from
the actions of the SSEB co-chairman.
OTHER ISSUES
PCA asserts that award to Humana was improper because its proposal was
noncompliant with mandatory solicitation requirements. The protester
points out that the agency's final evaluation summary identified four
"weaknesses" in Humana's proposal (which, we note, were in low risk
areas) which "can be resolved post award." (The prior report of the
SSAC apparently characterized them as "issues that must be addressed
by the Contracting Officer on a post-award basis.") PCA argues that
these matters precluded award to Humana.
A contracting agency properly may determine that a proposal is
technically acceptable where it is in substantial, although not total,
compliance with a solicitation requirement. Intermagnetics Gen.
Corp., B-255741; B-255741.3, May 10, 1994, 94-1 CPD para. 302; Sabreliner
Corp., B-248640; B-248640.4, Sept. 14, 1992, 92-2 CPD para. 222. The
propriety of such a determination turns on whether it prejudices any
other offeror and whether the proposal meets the agency's needs. Id.
OCHAMPUS determined that Humana's BAFO satisfied all material
solicitation requirements and that the weaknesses referred to above
were minor, easily correctable weaknesses which did not preclude
award. PCA has not shown this determination to have been
unreasonable. In any case, our review indicates that PCA could not
have been prejudiced by OCHAMPUS' treatment of Humana since PCA itself
benefited from similar flexibility--PCA's proposal was found to be
acceptable notwithstanding the fact that it received unsatisfactory
evaluation ratings in two areas and included five weaknesses, one
which was considered to be of medium risk, which would have to have
been resolved after award.
In addition, PCA questions Humana's compliance with the solicitation
requirement that offerors place a minimum of $100 million of equity at
risk. The protester generally argues that it was improper for Humana
to rely on the financial resources of its parent corporation to comply
with this requirement, and specifically asserts that the fact that the
indemnity and guarantee agreement from its parent which Humana
included in its business proposal appeared to be missing pages and did
not specify the specific amount of funding to be provided required
rejection of Humana's proposal.
This argument is without merit. No provision in the solicitation
precluded offerors from relying on the resources of their corporate
parent in performing the contract. (Indeed, we note that three of the
four offerors proposed to rely on the resources of their corporate
parent.) In the absence of such a prohibition, we have recognized
that where an offeror represents in its proposal that resources of its
parent company will be committed to the contract, the agency properly
may consider such resources in evaluating its proposal. Military
Newspapers of Virginia, B-249381.2, Jan. 5, 1993, 93-1 CPD para. 5; see
Unison Transformer Servs., Inc., 68 Comp. Gen. 74 (1988), 88-2 CPD para.
471. Further, no provision in the solicitation established a required
form to be used to document a parent's commitment of resources to the
contract. Humana generally represented in its technical proposal that
its corporate parent [DELETED], and specifically stated that its
corporate parent [DELETED]. We find nothing improper in OCHAMPUS
taking this commitment into account.
PCA also challenges the evaluation of its technical proposal, arguing
that its proposal should have been credited with more technical
strengths and fewer weaknesses. PCA's proposal was credited with more
strengths and fewer weaknesses under its Region 6 approach; PCA
generally maintains that since its Region 6 approach was the
same as its Region 3/4 approach, the strengths and weaknesses should
have been the same.
Each procurement action is a separate transaction; thus, the
evaluation conducted under one is not relevant to the propriety of the
evaluation under another for purposes of a bid protest. Shirley
Constr. Corp., 70 Comp. Gen. 62 (1990), 90-2 CPD para. 380; Transact
Int'l, Inc., B-241589, Feb. 21, 1991, 91-1 CPD para. 196. PCA's
evaluation under a prior procurement does not demonstrate that the
current evaluation was unreasonable. Since PCA has not shown that
OCHAMPUS' overall technical evaluation conclusions for the Regions 3/4
procurement, as explained by the agency in its report responding to
PCA's protest, were unreasonable, its protests in this regard provide
no basis to question the award to Humana.
The protests are denied.
Comptroller General
of the United States
1. We reject the position of OCHAMPUS and Humana that since the source
selection information allegedly involved here was obtained by the
former government employees during a different procurement, it cannot
have provided an improper competitive advantage. OCHAMPUS' and
Humana's position is based primarily on their interpretation of the
procurement integrity provisions of the Office of Federal Procurement
Policy (OFPP) Act, as amended, 41 U.S.C. sec. 423 (1994), as prohibiting
the disclosure of only source selection information generated during
the current procurement in question. See generally Federal
Acquisition Regulation sec. 3.104-4(c)(2). However, our review of these
matters is not aimed at enforcement of the OFPP Act; the
interpretation and enforcement of the Act are primarily matters for
the procuring agency and the Department of Justice. ITT Fed. Servs.
Corp., B-253740.2, May 27, 1994, 94-2 CPD para. 30. Our role in resolving
such allegations is solely to determine whether any action of the
former government employee may have resulted in prejudice in favor of
the awardee. General Elec. Gov't Servs., Inc., supra. In making this
determination, we will consider all relevant evidence, including
whether the former government employee had access to competitively
useful inside information generated prior to the protested
procurement. See, e.g., Central Texas College, supra; Stanford
Telecommunications, Inc., Feb. 7, 1995, 95-1 CPD para. 50; ITT Fed. Servs.
Corp., supra; Textron Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD para.
63; General Elec. Gov't Servs., Inc., supra.
2. Our conclusions above are also consistent with the results of
Humana's investigation (conducted with the assistance of outside
counsel) into the activities of the UM Director, and the testimony of
Humana's CEO and an outside UM/QM consultant who participated with
Humana's UM Director in preparing the UM/QM portions of Humana's BAFO.
Both the reported results of Humana's investigation and the testimony
of Humana's witnesses support Humana's contention that its UM Director
gave no outward indication of relying on any knowledge of the
Regions 9/10/12 internal UM/QM evaluation criteria, or other inside
information, when assisting in the preparation of Humana's Regions 3/4
BAFO in these areas. Tr. at 317, 320-326, 467-483.
3. PCA also argues that Humana's use of its UM Director to assist in
preparing its BAFO resulted in an unfair competitive advantage with
respect to the evaluation of its cost proposal; according to the
protester, Humana's higher technical score in the UM/QM area
translated into a more favorable evaluation of its proposed trend
factors, and thus a lower evaluated cost. However, in view of our
conclusion that the increases in Humana's BAFO technical score in the
UM/QM area did not appear to be attributable to any knowledge of the
undisclosed internal UM/QM evaluation criteria for Regions 9/10/12,
there is no basis for concluding that Humana acquired an unfair
competitive advantage with respect to its cost proposal as a result of
its improved technical score.
4. The record indicates that the UM Director was involved in policy
discussions during the period of the Region 6 procurement concerning
the extent to which TRICARE contractors should perform UM in military
hospitals and clinics in the direct care system, not the CHAMPUS
system. Tr. at 110-114.
5.[DELETED].