Arkray USA, Inc. v. United States
117 Fed. Cl. 22
Fed. Cl.2014Background
- This case concerns a bid protest challenging DHA’s selection of Abbott/ADCSC for a Uniform Formulary Blanket Purchase Agreement (UFBPA) for glucose test strips and meters under TRICARE.
- Formulary decisions are made by a P&T Committee with input from a Beneficiary Advisory Panel; DHA Director makes final formulary decisions after considering P&T and BAP input.
- The Contracting Officer coordinates solicitations, ensures quotes comply with posted instructions, and assesses quotes against VA FSS files and pricing before cost-effectiveness review.
- ADCSC’s quote was evaluated as most cost-effective by the P&T Committee, leading to a BPA with ADCSC (november 12, 2013) and public formulary posting.
- ARKRAY protested to GAO; after GAO denied protest, ARKRAY filed suit in this court, and the court expedited proceedings but then remanded for further agency development.
- The court ultimately remands to determine whether ADCSC held an existing FSS contract for all quoted pharmaceutical agents at bidding and BPA execution, and if needed, will consider supplemental materials on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ADCSC held an FSS contract at bid and BPA execution. | ARKRAY argues ADCSC did not hold an FSS contract in its own name. | The government contends the solicitation allowed reliance on a corporate affiliate’s FSS contract, and misinterpretation should be remanded. | Remand needed to determine FSS eligibility by CO. |
| Whether meters must be listed on an FSS contract to meet the FSS requirement. | ARKRAY contends meters must be listed on an FSS contract to qualify. | Meters can be bundled in a suite; recoupment does not convert to meters being listed. | Ambiguity resolved via remand; not resolved in current record. |
| Whether the TAA requirement is a performance requirement and whether the agency reasonably inquired about ADCSC’s ability to comply. | Solicitation intended pre-award TAA readiness; the agency should have anticipated noncompliance. | TAA is a performance requirement; agency reasonably relied on assurances. | Remand to confirm agency basis for TAA compliance. |
| Whether remand to the agency is proper to determine the basis for the CO’s conclusion about ADCSC’s FSS compliance. | Record shows potential reliance on affiliate entities; need clarification. | Court should allow CO to decide the issue with the remand record. | Remand authorized to resolve FSS-eligibility questions. |
Key Cases Cited
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (arbitrary, capricious, or otherwise not in accordance with law standard; coherent explanation required)
- Femme Comp Inc. v. United States, 83 F. Cl. 704 (Fed. Cl. 2008) (agency can rely on parent-subsidiary representations for past performance)
- T & S Prods., Inc. v. United States, 48 F. Supp. 2d 100 (Fed. Cl. 2000) (agency can rely on subsidiary commitments to support performance)
- Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (waiver of objections if not raised prior to bid close)
- Wit Assocs., Inc. v. United States, 62 Fed. Cl. 657 (Fed. Cl. 2004) (interpretation of solicitations; pre-award considerations do not control final bidding)