TITLE: B-311423; B-311423.2; B-311423.3; B-311423.4; B-311423.5, Eastern Medical Equipment, Inc.; Omnicare, Inc.; Dania Medical Equipment & Supplies, Inc.; Chronic Care Pharmaceutical Services, LLC; Wound Management Technologies, Inc., May 1, 2008
BNUMBER: B-311423; B-311423.2; B-311423.3; B-311423.4; B-311423.5
DATE: May 1, 2008
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B-311423; B-311423.2; B-311423.3; B-311423.4; B-311423.5, Eastern Medical Equipment, Inc.; Omnicare, Inc.; Dania Medical Equipment & Supplies, Inc.; Chronic Care Pharmaceutical Services, LLC; Wound Management Technologies, Inc., May 1, 2008

   Decision

   Matter of: Eastern Medical Equipment, Inc.; Omnicare, Inc.; Dania Medical
   Equipment & Supplies, Inc.; Chronic Care Pharmaceutical Services, LLC;
   Wound Management Technologies, Inc.

   File: B-311423; B-311423.2; B-311423.3; B-311423.4; B-311423.5

   Date: May 1, 2008

   Jim Marco for Eastern Medical Equipment, Inc.; Robert J. Hill, Esq., Reed
   Smith LLP, for Omnicare, Inc.; Lawrence R. Metsch, Esq., The Metsch Law
   Firm, P.A., for Dania Medical Equipment & Supplies, Inc., Chronic Care
   Pharmaceutical Services, LLC, and Wound Management Technologies, Inc., the
   protesters.
   Jamie B. Insley, Esq., Department of Health and Human Services, for the
   agency.
   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Pursuant to title 18 of the Social Security Act (42 U.S.C. sections
   1395-1395hhh), Government Accountability Office lacks jurisdiction over
   protests of awards made by Centers for Medicare & Medicaid Services,
   Department of Health and Human Services under the agency's Competitive
   Acquisition Program.

   DECISION

   Eastern Medical Equipment, Inc.; Omnicare, Inc.; Dania Medical Equipment &
   Supplies, Inc.; Chronic Care Pharmaceutical Services, LLC; and Wound
   Management Technologies, Inc. protest the rejection of their bids
   submitted in response to the Centers for Medicare & Medicaid Services
   (CMS), Department of Health and Human Services (HHS), competitive bidding
   program for certain Medicare Part B covered items. The protesters assert
   that CMS improperly determined that the firms failed to submit all
   required financial documentation with their bids.

   We dismiss the protest.

   The national Medicare program is administered by CMS, an agency within
   HHS, and governed by title 18 of the Social Security Act (codified at
   42 U.S.C. sections 1395-1395hhh). Section 1847 of title 18 (42 U.S.C.
   sect. 1395w-3) establishes the Competitive Acquisition Programs (CAP) for
   the procurement of certain items and services, including durable medical
   equipment, prosthetics, orthotics, and supplies (DMEPOS).

   In the procurements at issue here, CMS solicited bids under the DMEPOS CAP
   for a number of categories of items to be provided to Medicare
   beneficiaries. These bids were submitted under the first round of
   procurements conducted under CAP, covering 10 metropolitan areas. After
   submitting their bids, the protesters were subsequently notified that the
   bids had been rejected for failing to include certain financial
   information. The protesters then filed these protests with our Office,
   asserting that the rejections were improper because the firms had in fact
   submitted the information.

   The agency argues that our Office is precluded by title 18 of the Social
   Security Act from reviewing the protests. We agree.

   In addition to establishing the CAP, section 1847 of title 18 includes a
   provision addressing administrative or judicial review of the agency's
   actions. In this regard, section 1847(b)(10) states as follows:

     There shall be no administrative or judicial review under section 1869,
     section 1878, or otherwise, of...(B) the awarding of contracts under
     this section.

   See 42 U.S.C. sect. 1395w-3(b)(10).

   The starting point of any analysis of the meaning of a statutory provision
   is the statutory language used by Congress. See Consumer Prod. Safety
   Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) ("We begin with the
   familiar canon of statutory construction that the starting point for
   interpreting a statute is the language of the statute itself.") Where the
   language is clear on its face, its plain meaning will be given effect;
   that is, if the intent of Congress is clear, "that is the end of the
   matter." SmithKline Beecham Pharm., B-271845, Aug. 23, 1996, 96-2 CPD
   para. 82 at 3, citing Chevron, U.S.A., Inc. v. Natural Res. Defense
   Council, Inc., 467 U.S. 837, 842, (1984).

   Here, we find that the language in question is unambiguous. As stated, the
   language prohibits any judicial or administrative review of the awarding
   of contracts under section 1847. Based on this plain language, since the
   procurements here were conducted under section 1847, our Office is
   precluded from considering the protests of the awards.[1]

   Omnicare argues that section 1847(b)(10) does not preclude GAO's review of
   its protest because the firm is not seeking review of the "awarding of
   contracts," but rather is challenging the disqualification of its bid. We
   do not view this distinction as meaningful. The agency's decision to
   reject the protester's bid is a necessary aspect of determining which
   bidders are eligible for award under the solicitation. More specifically,
   in requesting that we find that its bid should not have been rejected,
   Omnicare necessarily is requesting that we find that it should have
   received an award. As such, we view the agency rejection of Omnicare's bid
   as part of the process of the "awarding of contracts"; our review of its
   protest therefore is precluded by the statute.[2]

   Omnicare also argues that the jurisdictional exemption in section
   1847(b)(10) applies only to actions within the scope of the agency's
   authority; since the agency's allegedly improper actions here fall outside
   its statutory authority and required duties in administering a competitive
   bidding program as Congress intended, they are reviewable under this
   provision. Omnicare's Comments, Mar. 31, 2008, at 3. We disagree. In
   prohibiting the reviewing of contract awards, section 1847(b)(10) makes no
   distinction based on whether the actions in question are "within the scope
   of the agency's authority." Again, therefore, we find that review by our
   Office is precluded.

   Finally, Dania, Chronic Care, and Wound Management argue that GAO is not
   precluded from reviewing their protests, since section 1847(b)(10) only
   pertains to administrative or judicial review. The protesters suggest that
   the term "administrative review" refers only to review by an executive
   branch entity; GAO, as a legislative branch agency, has a "legislative"
   not an administrative review role. Protesters' Comments, Apr. 1, 2008, at
   2. However, the protesters have provided no legal support for their narrow
   reading of the term "administrative" in the context of the statute here,
   and there is nothing in the statute itself or the legislative history that
   indicates Congress intended to exclude GAO review from the exempting
   language. See H.R. Conf. Rep. No. 108-391 (2003).[3] This being the case,
   and because GAO is the principal federal agency with statutory authority
   to review bid protests, we think it is sufficiently clear that the
   exempting language was intended to preclude GAO review.[4] Accordingly, we
   reject the protesters' interpretation here.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] We note that CMS's regulations implementing the statute fully support
   our reading of the plain language. In this regard, the regulations
   implementing section 1847 of the Social Security Act repeat that "[t]here
   is no administrative or judicial review under this subpart of the
   following...(2) awarding of contracts." 42 C.F.R. sect. 414.424. During
   the comment and review period when this regulation was pending, the agency
   responded to a suggestion that, given the number of protests sustained by
   GAO and the United States Court of Federal Claims, CMS should allow
   administrative or judicial review to prevent fraud or arbitrary and
   erroneous awards. The agency responded:

     We disagree with these comments. The Medicare DMEPOS Competitive Bidding
     Program is a unique program that differs in many ways from traditional
     government procurement. We are bound to implement this program in
     accordance with the statute, which as noted earlier in this section,
     provides that there will be no administrative or judicial review of
     certain functions.

   72 Fed. Reg. 18056 (Apr. 10, 2007). We will give deference to an agency's
   reasonable interpretation of its own regulations, and we find nothing
   unreasonable in the agency's interpretation of the statute as reflected in
   the cited regulation. Israel Aircraft Indus., Ltd.--Recon., B-258229.2,
   July 26, 1995, 95-2 CPD para. 46 at 5.

   [2] Omnicare asserts that, in rejecting its bid, the agency has deprived
   the firm of its property rights without due process of law as required by
   the Fifth Amendment of the United States Constitution. However, the
   jurisdiction of our Office is limited to deciding protests concerning
   alleged violation of procurement statutes or regulations. See 31 U.S.C.
   sect. 3552. Because this allegation does not implicate violations of
   procurement statutes or regulations, it is not for resolution by our
   Office but is a matter for the courts ultimately to decide. DeTekion Sec.
   Sys., Inc., B-298235, B-298235.2, July 31, 2006, 2006 CPD para. 130 at 17
   n.6.

   [3] See also H.R. Rep. 108-181 (2003).

   [4] We note that our Office previously has indicated that we view our bid
   protest jurisdiction as administrative in nature. See Staber Indus., Inc.,
   B-276077, May 9, 1997, 97-1 CPD para. 174 at 2 (failure to follow an
   executive order, which specifically states that the order is not intended
   to create "any right to administrative or judicial review," provides no
   basis for protest to our Office by the order's own terms). The United
   States Court of Appeals for the Federal Circuit has indicated likewise.
   See NHK Eng'g v. United States, 805 F.2d 372, 378 (Fed. Cir. 1986) (noting
   that the Competition in Contracting Act, 32 U.S.C. sections 3551-3556,
   provides for an "administrative review" of a protest upon filing with
   GAO).