Novavax Inc., B-286167; B-286167.2, December 4, 2000

Novavax Inc., B-286167; B-286167.2, December 4, 2000 TITLE: Novavax Inc., B-286167; B-286167.2, December 4, 2000 BNUMBER: B-286167; B-286167.2 DATE: December 4, 2000 ********************************************************************** Novavax Inc., B-286167; B-286167.2, December 4, 2000 Decision Matter of: Novavax Inc. File: B-286167; B-286167.2 Date: December 4, 2000 Frank M. Rapoport, Esq., Alison L. Doyle, Esq., Dana B. Pashkoff, Esq., and David Kasanow, Esq., McKenna & Cuneo, for the protester. Michael J. Lacek, Esq., and Anne Robbins, Esq., Palmer & Dodge, for OraVax, Inc., an intervenor. Elise Harris, Esq., and Scott C. Briles, Esq., Centers for Disease Control and Prevention, for the agency. Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protests that contracting agency improperly interpreted and applied the solicitation's indemnification/insurance requirement as to the protester's and awardee's proposals, and improperly eliminated the protester's proposal from the competitive range, are denied where the record shows that the agency's interpretation of the requirement was reasonable and that its evaluation of both proposals and its competitive range determination were reasonable and consistent with the solicitation's requirements. DECISION Novavax Inc. protests its proposal's exclusion from the competitive range and the award of a contract to OraVax, Inc., under request for proposals (RFP) No. 2000-N-00001, issued by the Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), for the development and stockpiling of a smallpox vaccine. Novavax contends that the CDC improperly interpreted and applied the solicitation's indemnification/insurance requirement as to both proposals and improperly eliminated its proposal from the competitive range. We deny the protests. BACKGROUND Over the centuries, smallpox has been feared as one of the most serious of all pestilential diseases. The practice of vaccination was invented to fight smallpox more than two hundred years ago. After an aggressive global vaccination program, smallpox was officially declared eradicated in 1980. In recent years, however, concern has grown that large-scale biological weapons research and production involving smallpox might still exist in many countries. [1] The civilian population of the United States would be extremely vulnerable to a bioterrorist attack using smallpox virus. There is no effective treatment for the disease, which has a fatality rate of 30 percent or more. Routine immunization against smallpox ended in 1972 and it is estimated that no more than 20 percent of the population has any immunity from prior vaccinations. [2] The vaccine is no longer manufactured anywhere in the world and only 15.4 million doses of the 20-year-old vaccine are available for use in an emergency. Agency Finding and Determination at 2-3. Through HHS's anti-bioterrorism initiative, the CDC is coordinating and leading overall planning efforts to upgrade national public health capabilities to respond to biological and chemical terrorism. Smallpox virus is consistently ranked highest of the bioterrorism threat agents because of its potentially catastrophic public health effects, and replenishing diminished smallpox vaccine stocks is the top priority for HHS and CDC. Id. This solicitation was issued on February 11, 2000. Its objective is to obtain a stockpile of 40 million doses of a smallpox (vaccinia) vaccine in the shortest time possible to be used in case of a public health emergency. The RFP required the successful contractor to develop a candidate smallpox vaccine; provide at least two pilot lot vaccines for use in conducting clinical trials; conduct clinical trials; obtain final licensure; produce at least 40 million doses of the vaccine; store a portion of the stockpile; and produce stockpile replacement vaccines or new vaccine lots. These tasks were divided into four line items subject to varying payment terms. Award was to be made to the offeror whose integrated proposal (technical, business, and past performance) offered the highest technical merit at the best overall value to the government. Technical merit was to be considered significantly more important than cost or price. In addition to including technical and past performance evaluation criteria, the solicitation included a pass/fail requirement, referred to as an "absolute criterion," that each proposal demonstrate that the offeror "has the capability to provide indemnification/liability" in accordance with section H.14 of the solicitation. RFP sect. M.2.