Protest challenging agency’s evaluation of the awardee’s and the protester’s proposals is sustained. The agency made-up a requirement that was not in the solicitation. It then found that both the protester and the awardee had satisfied this requirement although they did not propose to the supposed requirement. Despite finding that both offerors satisfied the requirement, the agency somehow managed to disparately evaluate offerors under the invented requirement. Finally, the agency erred in adjusting the protester’s price upward to reflect the costs of the false requirement that the protester never proposed to satisfy.
The Department of Labor awarded a contract for pharmacy benefits management to Coventry Health Care Workers’ Compensation, Inc. An unsuccessful offeror, Optum Workers Compensation of Florida, protested, challenging the evaluation of its own and Coventry’s proposal.
Optum’s protest concerned the provision of drug utilization review (DUR) services. A provider of DUR reviews the prescribing, dispensing, and ingesting of medication. The protest involved clinical DUR in which claim examiners interact with doctors, nurses, and pharmacists to track and review prescriptions. Optum contended that DOL erred by finding that the RFP required full-scale DUR services, and by crediting both Coventry and Optum for proposing full-scale clinical DUR.
Instead of full-scale clinical DUR, Optum contended that the RFP only required offerors to provide clinical DUR when patient safety was an issue. But according to DOL, while the RFP did not specify a full-scale clinical DUR, it allowed offerors to decide whether they wanted to propose the full-scale.
GOA, however, found that none of the provisions identified by DOL conveyed a requirement to provide full-scale clinical DUR. No provision in the RFP actually used the term “clinical DUR services.” What’s more, the contemporaneous record indicated that DOL understood that the RFP did not contemplate full-scale clinical DUR. The evaluation reports stated that Coventry and Optum had proposed DUR tools that were not prescribed by the solicitation. Rather, GAO found, only one section of the PWS implicated clinical DUR, and this section was clearly limited to situations where patient safety was an issue.
Next, Optum argued that the DOL erred in giving credit to Coventry for proposing full-scale clinical DUR. GAO agreed, noting that Coventry only devoted a single page to discussing clinical DUR, and this page only proposed to provide clinical DUR when patient safety was an issue. Indeed, GAO noted that an affidavit Coventry provided from an employee who drafted its proposal only referred to clinical DUR related to patient safety and did not describe any other clinical services.
Optum further argued that DOL botched the evaluation by finding that Optum proposed full-scale clinical DUR. GAO again agreed. Optum’s proposal referenced some clinical DUR services, but the proposal explicitly stated that Optum did not view those services as contemplated by the RFP, and that it was not proposing those services as part of its offer. Rather, Optum’s proposal was limited to providing DUR only where patient safety was at issue.
GAO noted that not only did DOL err in finding a requirement for full-scale clinical DUR, it managed to disparately evaluate offerors under that requirement. DOL assigned Coventry a significant strength for offering full-scale clinical DUR, and spent several pages of the evaluation discussing the DUR services it thought Coventry had proposed. But DOL only assigned Optum a strength for also offering full-scale clinical DUR. Given that neither company offered full-scale clinical DUR, GAO concluded there was no rational basis for the disparate evaluation of proposal.
Finally, Optum contended that DOL wrongly adjusted Optum’s price upward to account for DUR services that the company never proposed. GAO found that even though the RFP did not require full-scale clinical DUR, and the even though Optum did not propose full-scale services, DOL concluded that these services were available from Optum at an additional cost. DOL used rates that Optum provided as a courtesy and incorrectly added them to Optum’s overall price. In fact, GAO noted, given that the RFP contemplated a fixed-price contract, DOL had no legal basis to make an upward adjustment of price.
Optum is represented by Jason A. Carey, Kayleigh M. Scalzo, J. Hunter Bennett, Nooree Lee, Peter Terenzio, III, and Brooke G. Stanley of Covington & Burling, LLP. The intervenor, Coventry, is represented by Kevin J. Cosgrove and Bridget Vick of Hunton Andrews Kurth LLP. The agency is represented by Jose Otero and Joon Hong of the Department of Labor. GAO attorneys Scott H. Riback and Tania Calhoun participated in the preparation of the decision
