TITLE: B-298590; B-298590.2; B-298590.3, General Injectables & Vaccines, Inc., November 15, 2006
BNUMBER: B-298590; B-298590.2; B-298590.3
DATE: November 15, 2006
*****************************************************************************************
B-298590; B-298590.2; B-298590.3, General Injectables & Vaccines, Inc., November 15, 2006

   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: General Injectables & Vaccines, Inc.

   File: B-298590; B-298590.2; B-298590.3

   Date: November 15, 2006

   Lawrence Z. Lorber, Esq., Mark J. Biros, Esq., Stephen D. Solomon, Esq.,
   James F. Segroves, Esq., Meredith C. Bailey, Esq., and Rachel F. Glickman,
   Esq., Proskauer Rose LLP, and Gilbert J. Ginsburg, Esq., Law Office of
   Gilbert J. Ginsburg, for the protester.

   David R. Hazelton, Esq., Roger S. Goldman, Esq., Donald M. Remy, Esq.,
   Kyle R. Jefcoat, Esq., and Joshua K. Chandler, Esq., Latham & Watkins LLP,
   and Carole S. Ungvarsky, Esq., McKesson Corporation, for McKesson
   Specialty Distribution LLC, an intervenor.

   Daniel Meron, Esq., Dana J. Petti, Esq., and Elise Harris, Esq., Centers
   for Disease Control and Prevention, Department of Health and Human
   Services, for the agency.

   Paul N. Wengert, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Protest that agency conducted discussions with eventual awardee, to
   determine whether its proposal met go/no-go requirement, is denied where
   solicitation did not preclude agency from conducting discussions regarding
   the requirement, and agency subsequently conducted discussions with all
   offerors.

   2. Protest that agency's efforts to reach consensus among evaluation
   panelists constituted improper "pressure" is denied where agency's final
   evaluation ratings are reasonably supported by record, and protester has
   not identified any substantive flaw in the evaluation of final proposal
   revisions.

   DECISION

   General Injectables & Vaccines, Inc. (GIV) protests its proposal's
   exclusion from the competitive range by the Centers for Disease Control
   and Prevention (CDC) under request for proposals (RFP) No. 2006-N-08248,
   for vaccine stockpile management and distribution under the Vaccines for
   Children Act, 42 U.S.C. sect. 1396s (2000). GIV asserts that evaluators
   were improperly pressured to change their initial evaluations, and that
   CDC conducted improper discussions with the eventual awardee, in order to
   allow it to pass a go/no-go evaluation, but failed to conduct meaningful
   discussions with GIV regarding its proposed price.

   We deny the protest.[1]

   On November 1, 2005, CDC issued the RFP, seeking proposals to manage a
   consolidated supply of vaccines under the Vaccines for Children Act, which
   provides federally-purchased vaccines for administration to children who
   meet certain criteria.[2] RFP at 6. The RFP indicated that the contractor
   would be responsible for filling an estimated 47,000 shipments initially,
   increasing to an estimated 260,000 shipments annually.[3] RFP at 8.

   The RFP provided that each proposal would first be evaluated on the
   adequacy of the offeror's information technology "Systems Security Plan."
   RFP amend. 5, at 22. Specifically, the RFP required offerors to respond to
   various questions regarding security controls, including security of
   computer information systems. The RFP further provided that the offerors'
   responses would be pre-screened on a "go/no-go" basis, and stated that
   "proposals that do not pass this first level of screening will not be
   further considered in the Source Selection process." RFP amend. 5, at 22.

   The RFP also provided that proposals evaluated as acceptable under the
   go/no-go requirement would be evaluated qualitatively on four technical
   criteria, which were "soundness of technical approach" (30 points),
   "personnel/management plan" (25 points), "organizational experience" (25
   points), and "facilities" (20 points). Lastly, the RFP specified that
   "technical merit and other non-cost factors"[4] were of equal importance
   to price. RFP amend. 7, at 4.

   Three offerors, including GIV and McKesson Specialty Distribution LLC
   (McKesson), submitted proposals by the February 21, 2006 deadline
   specified in the RFP. After an initial review of the proposals, the
   evaluators determined that McKesson's proposal had provided inadequate
   responses to a significant number of the system security plan questions by
   responding "N/A," "Unclear," "No," or by leaving the question unanswered.
   On March 7, CDC asked McKesson to "clarify" its responses. On March 12,
   McKesson submitted revised answers to those security questions; CDC
   ultimately determined that those responses were adequate.

   CDC then proceeded to evaluate the initial proposals. The contracting
   specialist who reviewed the evaluation report expressed concern that the
   evaluation reflected disagreement among the evaluators, and that the
   numerical scores did not correspond to the narrative. She asked that the
   evaluation panel reconvene because "we need more detail in some areas."
   She also pointed out large differences among the evaluators in their
   scoring for McKesson, and noted that GIV did not "seem to understand our
   requirement, yet they received the highest score." Agency Report (AR), Tab
   13, E-mail from Contracting Specialist to Technical Panel Members
   (Mar. 22, 2006).

   The technical panel reconvened on March 29, and prepared a revised report.
   Two of the four[5] voting panel members subsequently stated that they felt
   "pressured" or were "encouraged to change scores" at this meeting. In
   contrast, the other panel members stated that they felt that the meeting
   resulted in an opportunity to reach a clearer understanding of the
   proposals and establish a consensus on that basis. Supplemental Agency
   Report (Sept. 25, 2006), app. A, Declarations of Individual Technical
   Panel Members.

   CDC conducted oral discussions with GIV on May 8, and then sent a final
   written discussions document to GIV that identified various remaining
   concerns. Among other things, the agency's written discussions advised GIV
   of the following:

     GIV is proposing [deleted] people to support CDC for the East Region,
     but their past 5 contracts document [deleted] personnel supporting
     multiple state contracts ([deleted] projects) in [deleted] facilities.
     Why is GIV proposing [deleted] people with two distribution sites with
     similar volume? It appears GIV's costs are not reasonable based on this
     assessment of staffing, fewer sites and similar volume of vaccine
     distribution.

   AR, Tab 19, Issues for Discussion, at 4-5.

   Similarly, CDC further put GIV on notice that its proposed costs were too
   high, stating:

     We are aware that GIV has existing contracts with similar requirements
     (72 hour cold chain) with other government entities at unit prices
     substantially lower than those proposed. Please identify the significant
     factors that cause this disparity.

   Id. at 5.

   Subsequently, final proposal revisions (FPRs) were submitted and
   evaluated. The evaluation panel's final report continued to reflect
   differences among panel members. AR, Tab 22, Technical Panel FPR
   Evaluation Report (June 28, 2006) at 1. The narrative evaluation report
   explained those differences on the basis that some evaluators felt that
   GIV's greater familiarity with CDC resulted in a more detailed proposal,
   while "McKesson's FPR was more private sector oriented," but was
   considered technically sound. Id. at 2. All of the panel
   members--including those stating that they felt "pressured" during the
   initial evaluation--have stated that they felt no similar "pressure" in
   the evaluation of FPRs. Supplemental Agency Report (Sept. 25, 2006), app.
   A, Declarations of Individual Technical Panel Members.

   As reflected in the competitive range determination, CDC evaluated GIV's
   total price as $241,640,603.77;[6] McKesson's corresponding evaluated
   price was $98,970,547.02.

   AR, Tab 24, Competitive Range Determination, at 4-5. Based on GIV's
   significantly higher evaluated price, along with the fact that the
   offerors' technical ratings were relatively close, the contracting officer
   eliminated GIV from further consideration, reducing the competitive range
   to a single offeror, McKesson. GIV was notified of its proposal's
   exclusion from the competitive range on July 18, and requested a timely
   pre-award debriefing. This protest followed.[7]

   GIV first protests that it was improper for CDC to seek additional
   information from McKesson regarding its information technology system
   security plans, thereby permitting McKesson to revise its initially
   unacceptable responses. Specifically, GIV argues that CDC's March 7
   inquiry to McKesson constituted prohibited discussions. CDC responds that
   nothing prohibited exchanges with McKesson in this regard.

   We agree that CDC's exchanges with McKesson seeking additional information
   about its security systems constituted discussions, rather than
   clarifications, because CDC needed this information to conclude that
   McKesson's proposal was acceptable. See Nu-Way, Inc., B-296435.5,
   B-296435.10, Sept. 28, 2005, 2005 CPD para. 195 at 7. However, GIV was not
   competitively prejudiced by these discussions. As noted, GIV was similarly
   provided discussions and an opportunity to revise its proposal prior to
   CDC's final competitive range determination.

   GIV places significant emphasis on the RFP provision that "proposals that
   do not pass this first level of screening will not be further considered
   in the Source Selection process." RFP amend. 5, at 22. To the extent that
   GIV is reading this provision as precluding CDC from conducting
   discussions with offerors in connection with the "pre-screening" process,
   GIV has failed to identify a persuasive rationale for its interpretation.
   Accordingly, we decline to sustain its protest of the agency's
   determination that McKesson ultimately met the go/no-go security plan
   requirements.

   GIV next protests that CDC "pressured" two evaluators to change their
   scores regarding initial proposals, and that this "pressure" reflected an
   effort by CDC "to steer the contract award to McKesson." Supplemental
   Protest at 1; Protester's Supplemental Comments at 2. CDC responds that
   the record and the declarations of the panel members reflect that the
   "pressure" felt by the evaluators in connection with the initial
   evaluations was, in fact, a valid effort to reach consensus among
   panelists with strongly-held conflicting views about the benefits of the
   offerors' proposals.

   We have noted that it is not unusual for individual evaluator ratings to
   differ from one another, or to differ with the consensus ratings
   eventually assigned, and source selection officials may reasonably
   disagree with the evaluation ratings and results of lower-level
   evaluators. Verify, Inc., B-244401.2, Jan. 24, 1992, 92-1 CPD para. 107 at
   6-8. The overriding concern is not whether the final ratings are
   consistent with earlier, individual ratings, but whether they reasonably
   reflect the relative merits of the proposals. Cube-All Star Servs. Joint
   Venture, B-291903, Apr. 30, 2003, 2003 CPD para. 145 at 11 n.21.

   Here, the record confirms that there were strong persistent differences of
   opinion among evaluators, and that evaluators were strongly encouraged to
   discuss the issues and strive for a consensus during the initial
   evaluation. While some degree of consensus was reached, the contracting
   officer was fully informed of any remaining disagreement, and the basis
   for it. Further, the evaluators are unanimous in stating that they did not
   feel any "pressure" in the evaluation of FPRs. Supplemental Agency Report
   (Sept. 25, 2006), app. A, Declarations of Individual Technical Panel
   Members. Finally, GIV has not identified any substantive flaw in the FPR
   ratings, nor has it shown how the "pressure" to reach consensus during the
   initial evaluation affected the elimination of GIV from the competitive
   range due to its significantly higher price. Accordingly, on the record
   here, GIV's assertions regarding CDC's internal deliberations during the
   evaluation process provide no basis for sustaining this protest.

   GIV also complains that it was not adequately apprised during discussions
   that its price was too high. In response, CDC references specific
   questions, quoted above, in which CDC stated, among other things, that "It
   appears GIV's costs are not reasonable." Agencies are not required to
   "spoon-feed" an offeror during discussions. LaBarge Elecs., B-266210, Feb.
   9, 1996, 96-1 CPD para. 58 at 6. Rather, discussions must be meaningful;
   that is, discussions may not mislead offerors and must identify
   deficiencies and significant weaknesses in each offeror's proposal that
   could reasonably be addressed in a manner to materially enhance the
   offeror's potential for receiving award. PAI Corp., B-298349, Aug. 18,
   2006, 2006 CPD para. 123 at 8. Here, as quoted above, the record supports
   CDC's contention that GIV was informed during discussions that its price
   was too high. CDC's questions adequately informed GIV of CDC's concerns
   regarding GIV's price.

   Finally, GIV protests that CDC improperly failed to inquire of GIV and
   McKesson whether their prices were erroneous. However, GIV has failed to
   show any basis for CDC to have been concerned about either McKesson's or
   GIV's own pricing. McKesson itself confirmed its prices during the
   protest. McKesson's Supplemental Comments (Oct. 23, 2006) at 5-6. On this
   record, we deny this aspect of GIV's protest.[8]

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

   ------------------------

   [1] In its initial protest, GIV raised several grounds of protest which
   argued, in essence, that GIV's proposal was excluded from the competitive
   range solely on the basis of GIV's high price, and that CDC could not
   properly evaluate price under the RFP because CDC had improperly
   implemented the Service Contract Act (SCA), and thus had failed to include
   applicable wage determinations in the RFP that would be required for
   competing offerors to submit proposals in compliance with the SCA. CDC
   produced a report on these issues on September 8, but produced requested
   documents on several dates. Our Office set a deadline for comments on the
   initial agency report on September 25 by 5:30 p.m. Eastern Daylight-Saving
   Time (EDT). The protester's comments ultimately arrived by fax at 6:16
   p.m. EDT, indisputably after our filing deadline. Counsel for GIV has
   submitted a fax machine error report to show that its counsel attempted to
   file comments on the report on that date at "17:00" (or 5:00 p.m.) at
   which time counsel's machine reported "BUSY." Counsel did not request, and
   our Office did not grant, any further extension of the deadline for
   comments. Our Bid Protest Regulations provide that when comments from a
   protester are not received by the time when due, the protest "shall be
   dismissed." 4 C.F.R. sect. 21.3(i) (2006). Therefore, we do not address
   the issues raised in the initial protest.

   [2] The Vaccines for Children Act also directs CDC to maintain a 6-month
   stockpile of the vaccines, an objective that the contract was also
   designed to achieve. Contracting Officer's Statement at 2 n.1.

   [3] As of February 21, 2006, the due date for initial proposals, the RFP
   divided the areas served into three regions: a west region, an east
   region, and, as a small business set-aside, the state of Texas, thus
   providing the potential to award a separate contract for each region. When
   no proposals were received under the small business set-aside, CDC
   dissolved the set-aside and added Texas to the west region. RFP amend. 6.

   [4] The RFP also stated that CDC would evaluate offerors' small
   disadvantaged business participation plans, and offerors' past
   performance. RFP amend. 5, at 23-25; RFP amend. 7, at 4-5.

   [5] The panel consisted of six members. However, the contract specialist
   and the panel chair did not participate in scoring proposals.

   [6] GIV received a copy of the competitive range determination listing
   GIV's evaluated price on September 8. On September 26, GIV first suggested
   that its evaluated price should have been lower. Since GIV did not assert
   any error in its evaluated price until more than 10 days after it obtained
   that price, its protest regarding that matter is untimely. 4 C.F.R.
   sect. 21.2(a)(2).

   [7] While this protest was pending, CDC awarded the contract to McKesson.
   Thereafter, GIV supplemented its protest to challenge that award.

   [8] GIV raises various additional issues, including a claim that
   evaluators did not unanimously conclude that McKesson's proposal was
   "viable," that pricing should have been evaluated on the basis of
   different shipment sizes, and that CDC had an allegedly undisclosed
   preference for McKesson's reliance on leveraging its commercial
   operations, which functioned as an unstated evaluation criterion. We have
   considered all of GIV's arguments, and find them to be without merit.