The federal government buys billions of {dollars} in healthcare-related items and companies yearly, and no authorities procurement is ideal. In a enterprise the place each contract award issues, healthcare contractors ought to be conscious that they might have a second likelihood at profitable a contract if the federal government company made a fabric error in its procurement course of. The query disenchanted healthcare contractors ought to ask is whether or not the company acted unreasonably in its analysis and collection of the awardee. If the reply is “sure”—and even “possibly”—healthcare firms could file a bid protest on the Authorities Accountability Workplace (“GAO”) or the U.S. Courtroom of Federal Claims (“COFC”) difficult the award. If profitable, the company will typically have to reevaluate proposals and make a brand new award, giving protestors one other alternative to be chosen.

Protestors have alleged many flaws in healthcare-related procurements over time, however not all of these flaws are enough for GAO or the COFC to ship the federal government again to strive once more. So which arguments do win bid protests of healthcare-related contract awards? Listed here are just a few profitable arguments from current case regulation that healthcare contractors would possibly take into account subsequent time they lose out on a contract:

• The company didn’t consider proposals in keeping with the solicitation’s said analysis standards. The solicitation informs potential bidders of what the company will search for and take into account of their proposals, in addition to how the company will weigh components of the proposals. When an company deviates from the solicitation’s said analysis plan, this can be a highly effective floor for protest. For instance, in Spectrum Healthcare Sources, Inc., B-421325, 2023 CPD ¶ 74 (Mar. 2023), the protestor challenged a contract award by the Federal Emergency Administration Company for medical and behavioral well being companies. The solicitation contemplated a two-phase analysis course of with separate analysis elements for “technical functionality,” which requested offerors to element prior related expertise, and “staffing and administration method,” which instructed offerors to explain their method to performing the work. In its analysis of “technical functionality,” the company assigned the protestor’s proposal a number of weaknesses for failing to elucidate the way it deliberate to fulfill the necessities of the solicitation. Spectrum protested, arguing that the company had conflated the “technical functionality” and “staffing and administration method” elements. GAO agreed and located that the solicitation required that the company assess offerors’ means to fulfill the necessities of the contract and method to performing the work beneath the “staffing and administration method” issue, not the “technical functionality” issue. As a result of the company didn’t consider Spectrum’s proposal in accordance with the solicitation, GAO beneficial the company reevaluate Spectrum’s proposal and make a brand new award resolution. See additionally Onesource PCS, LLC, B-419222, 2021 WL 131280 (Jan. 2021) (protest towards Air Drive contract award for photorefractive keratectomy private and non-personal companies sustained the place company didn’t consider the relevance of offeror’s previous efficiency as required by the solicitation); Ohio KePRO, Inc., B-417836, 2020 CPD ¶ 47 (Nov. 2019) (protest towards Middle for Medicare & Medicaid Providers (“CMS”) contract award for beneficiary oversight and declare assessment companies sustained as a result of company failed to guage price realism, degree of effort, and relevance of previous efficiency as required by the solicitation).
• The company engaged in unequal or not significant discussions with offerors. When an company is evaluating proposals, it might contact offerors to ask questions on their proposals. Relying on the character of the communications, they are often thought of “clarifications” or “discussions.” If an company holds discussions with one offeror, it should conduct significant discussions with all offerors within the aggressive vary, i.e., it should alert all offerors to deficiencies of their proposals in order that they might have a chance to right them. If an company fails to make its discussions significant, or to offer all offerors the identical alternative to right their proposals, GAO or the COFC could maintain a bid protest. In Ohio KePRO, Inc., B-417836.4, 2021 CPD ¶ 325 (Nov. 2020) the protestor challenged a CMS contract award for beneficiary oversight and declare assessment companies. Following the receipt of ultimate proposals, the company reached out to the awardee to request pricing info that was lacking from its proposal and allowed the awardee to complement its proposal. The company didn’t contact the protestor, alert it of any deficiencies in its proposal, or enable it to right such deficiencies. The protestor argued to GAO that this constituted unequal discussions with the offerors. GAO sustained the protest and beneficial that the company reopen discussions and permit offerors to resubmit their proposals. See additionally Rice Options, LLC, B-420475, 2022 CPD ¶ 102 (Apr. 2022) (protest of Indian Well being Service contract award for licensed registered nurse anesthetist companies sustained as a result of company did not conduct discussions with all offerors within the aggressive vary); GOV Nationwide Healthcare Drive, LLC, B-419258, 2021 CPD ¶ 25 (Jan. 2021) (protest of Division of Veterans Affairs (“VA”) award of lease of premises for use for a community-based outpatient clinic sustained the place company engaged in discussions with offerors, however didn’t alert protestor to deficiencies or weaknesses in its proposal).
• The company disparately handled of offerors. Typically it looks as if an company has chosen its most well-liked contractor earlier than even reviewing the proposals, and its analysis can replicate these biases. The place the company assigns completely different rankings to 2 substantively comparable proposals or components of proposals, that is grounds for protest that may typically win the day. One instance is Marquis Options LLC, B-419891, 2021 CPD ¶ 316 (Sept. 2021), a protest of a VA contract for medical courier companies. The protestor argued that the company had disparately evaluated facets of its proposal that have been just like the awardee’s proposal. For instance, each offerors proposed to start out efficiency instantly with totally educated employees, and each offerors have been current incumbents who might accomplish that. But the company assigned the awardee a number of important strengths for this side of its proposal, and no strengths to the protestor. Additional, each offerors appeared to have copied and pasted some language from the solicitation into their proposals, however the company criticized solely the protestor for this flaw. GAO held that the company did not deal with offerors pretty and equally and beneficial that it reevaluate proposals and make a brand new supply choice resolution.
• The awardee was not eligible for award. Now and again, a company restructuring or acquisition renders an organization ineligible to obtain a contract that they in any other case might have gained. These are technicalities that solely a savvy protestor might spot. In Softrams LLC, B- 419927.4, et al., 2022 CPD ¶ 57 (Could 2022), CMS awarded a Common Providers Administration Federal Provide Schedule Order for operations and administration of CMS’s id administration system by means of a two-phase analysis course of. The awardee submitted the primary part of its proposal as a chief vendor and specified use of a selected subcontractor. Previous to submitting its part two proposal, the prime vendor and subcontractor entered a Contractor Teaming Association after which submitted their part two proposal as workforce members. GAO discovered that it was unreasonable for CMS to just accept a proposal successfully submitted by two completely different entities and sustained the protest. See additionally ASRC Federal Knowledge Community Applied sciences, LLC, B-418028, 2019 CPD ¶ 432 (Dec. 2019) (protest towards Protection Well being Company small enterprise innovation analysis contract award sustained the place awardee acquired entity that might have been eligible for contract award, however GAO discovered that being successor in curiosity was inadequate to make awardee eligible for award beneath Small Enterprise Innovation Analysis Coverage Directive).

Though authorities contracts for healthcare provides and companies current particular compliance issues that almost all authorities contractors don’t face, the procurement course of and pitfalls are largely the identical throughout authorities contracting. Thus, in bid protests, the identical arguments prevail whether or not the federal government is contracting for medical gadgets or jet engines. The keys to a profitable protest are vigilant monitoring of procurements, shut consideration to debriefings, realizing your opponents, and interesting counsel who’ve years of expertise. Sheppard Mullin has deep bid protest experience and will help you determine whether or not a bid protest would possibly assist your organization win its subsequent healthcare contract with the federal government.