Novartis Pharmaceuticals Corporation, B-285038.4; B-285038.5, February 1, 2002

Novartis Pharmaceuticals Corporation, B-285038.4; B-285038.5, February 1, 2002 TITLE: Novartis Pharmaceuticals Corporation, B-285038.4; B-285038.5, February 1, 2002 BNUMBER: B-285038.4; B-285038.5 DATE: February 1, 2002 ********************************************************************** Decision Matter of: Novartis Pharmaceuticals Corporation File: B-285038.4; B-285038.5 Date: February 1, 2002 Ronald K. Henry, Esq., Kaye, Scholer, Fierman, Hays & Handler, for the protester. Donald A. Tobin, Esq., and Lori Ann Lange, Esq., Bastianelli, Brown & Kelley, for the intervenor. Maura C. Brown, Esq., and Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the agency. John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST The protester was not prejudiced by the agency's alleged defective evaluation of the offerors' proposed implementation and small disadvantaged business plans submitted in response to a solicitation, where the record reflects that, even if the protester had been aware of the manner in which the agency evaluated proposals, it would not have submitted a different proposal that would have had a reasonable possibility for award, particularly given its significantly high price. DECISION Novartis Pharmaceuticals Corporation protests the award of a contract to Mylan Pharmaceuticals Inc. under request for proposals (RFP) No. 797-NC-00-0043, issued by the Department of Veterans Affairs (VA), for the drug clozapine. [1] Novartis argues that the agency's evaluation of proposals and selection of Mylan's proposal as representing the best value to the government was unreasonable and not in accordance with the evaluation factors set forth in the solicitation. We deny the protest. BACKGROUND The RFP provided for the award of a fixed-price contract for a base period of 1 year with four 1-year options. The RFP, as amended, contemplated establishing a source to provide an estimated 20,040 bottles of clozapine tablets per year for purchase through VA's Pharmaceutical Prime Vendor (PPV) program. [2] RFP at 3; amend. 4 at 2. The solicitation stated that award would be made to the offeror submitting the proposal determined to be most advantageous to the agency. The RFP provided that price was the most important factor; less important were the past performance and implementation plan evaluation factors, which were equal in importance; and the small disadvantaged business (SDB) factor, which was significantly less important than the other factors; price was said to be more important than the combined weight of the other factors. [3] RFP at 32. The solicitation requested that offerors submit technical proposals that included completed past performance forms and an implementation plan. RFP at 31. The RFP stated that the implementation plan was to detail how the offeror would satisfy the RFP's requirements regarding the operation and maintenance of a clozapine registry, such that each issue addressed would be complete and detailed enough to assure the agency of the offeror's understanding and capability to perform the cited requirements, and to "substantiate that the contract will be fully operational on the contract start date." [4] RFP at 4, 31. The RFP included a detailed six-page specification of the registry requirements, and stated that "by signing this solicitation and providing a proposal the offeror assures the VA that their registry meets the [listed registry] requirements." RFP at 5-10. Proposals were received from five firms by March 31, 2000. The agency evaluated the proposals received, conducted discussions with the three offerors whose proposals were found in the competitive range (including Novartis and Mylan), and requested and evaluated final revised proposals. Before an award selection was made, the agency became aware of various medical studies that caused it to review its requirements and obtain additional information from the offerors and the Food and Drug Administration. Based on the results of this review, VA amended the RFP on March 30, 2001 to provide that while "[a]ll new patient starts will be prescribed the awardee's product," the "VA has made the medical decision not to make it mandatory that physicians switch patients to the awarded drug due to the highly sensitive nature of this drug," and that "the decision to switch patients must be physician driven." This amendment changed the estimated quantity of clozapine to be purchased by the agency from 33,401 to 20,040 bottles per year, and provided revised price schedules to be completed by the offerors. Additionally, the amendment made a number of changes to the "registry requirements" section of the RFP by deleting or revising some provisions and adding new ones. Offerors were requested to acknowledge the amendment by April 20, 2001, in order to remain in the competition. RFP amend.