Novartis Pharmaceuticals Corporation; Parke-Davis--Costs, B-281681.8; B-281681.9, August 24, 1999

Novartis Pharmaceuticals Corporation; Parke-Davis--Costs, B-281681.8; B-281681.9, August 24, 1999 TITLE: Novartis Pharmaceuticals Corporation; Parke-Davis--Costs, B-281681.8; B-281681.9, August 24, 1999 BNUMBER: B-281681.8; B-281681.9 DATE: August 24, 1999 ********************************************************************** Novartis Pharmaceuticals Corporation; Parke-Davis--Costs, B-281681.8; B-281681.9, August 24, 1999 Decision Matter of: Novartis Pharmaceuticals Corporation; Parke-Davis--Costs File: B-281681.8; B-281681.9 Date: August 24, 1999 Ronald K. Henry, Esq., and Mark A. Riordan, Esq., Kaye, Scholer, Fierman, Hays & Handler; and David C. Hammond, Esq., and Mary Baroody Lowe, Esq., Powell, Goldstein, Frazer & Murphy, for the protesters. Sharif T. Dawson, Esq., Defense Supply Center Philadelphia, Defense Logistics Agency, for the agency. Jeff Podraza, David A. Ashen, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST General Accounting Office will not recommend that protester be reimbursed costs of filing and pursuing protest of alleged solicitation deficiencies following agency corrective action, where protest arguments were not clearly meritorious. DECISION Novartis Pharmaceuticals Corporation and Parke-Davis request that we recommend that they be reimbursed the costs of filing and pursuing their protests challenging the terms of solicitation SP0200-99-R-1502, issued by the Defense Supply Center Philadelphia (DSCP), Defense Logistics Agency, for HMG-CoA Reductase Inhibitors. We deny the requests. BACKGROUND The solicitation, issued on October 23, 1998, contemplated the award of one or two fixed-price national contracts for HMG-CoA Reductase Inhibitors (cholesterol-lowering drugs, commonly referred to as statins) for use in the Department of Defense's formulary programs and military treatment facilities. The solicitation initially provided that proposals would be evaluated based on two factors of equal importance, cost-efficacy and past performance. (The solicitation provided for calculation of the cost-efficacy of any particular statin through a mathematical formula that considers both the drug's annual cost per patient and the efficacy of the statin in lowering cholesterol.) In the event that proposals were rated essentially equal after application of these two factors, the solicitation provided for consideration of the effect of the statin on the incidence of fatal and non-fatal myocardial infarctions (MIE); if the proposals then were still essentially equal, the inconvenience of switching patients to the contracted statins would be considered. RFP (Oct. 23, 1998) at 29-33. On December 1, 1998, DSCP issued amendment No. 0002 to the solicitation, which (1) elevated MIE from its tie-breaker status to an evaluation factor, and (2) made the technical factors significantly more important than cost. As amended, the solicitation stated as follows: Award will be made to the offeror(s) whose proposal contains the combination of those criteria (set forth below) offering the best overall expected value . . . . In aggregate, the technical factors are significantly more important than cost or price. . . . In achieving this objective, the following evaluation factors will be considered and are listed in descending order of importance: Cost-Efficacy Evidence of effect on incidence of fatal and non-fatal myocardial infarctions Past Performance RFP amend. No. 0002, at 29. On December 9, Novartis protested to our Office that the solicitation as amended was ambiguous as to the basis for award, unclear as to how the agency would calculate MIE, and unduly restrictive of competition due to limitations on the types of evidence of effectiveness the agency would consider. DSCP amended the solicitation on December 16 (amendment No. 0006) to (1) delete the statement that the technical factors would be significantly more important than cost in the evaluation and to provide instead simply that the factors are "listed in descending order of importance," and (2) address the alleged ambiguity with respect to the MIE calculation. [1] On December 29 Parke-Davis, and on December 30 Novartis, protested that competition was unreasonably restricted due to consideration of only MIE under the second evaluation factor to the exclusion of other favorable outcomes, and due to the definition of acceptable MIE evidence. DSCP amended the solicitation on January 11 and January 14, 1999 (amendment Nos. 0007 and 0008) in an effort to respond to these protests. Finally, on February 11, the agency amended the solicitation (amendment No. 0009) to provide for consideration of favorable cardiovascular outcomes other than reducing MIE and to broaden the definition of acceptable evidence. Meanwhile, on December 3, DSCP amended the solicitation (amendment No.