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B-279073 1 (1998-05-04)

handle is hein.gao/gaocrptahrj0001 and id is 1 raw text is: oComptroller General of the United States Washington, D.C. 20548 Decision Matter of: Hoechst Marion Roussel, Inc. File: B-279073 Date: May 4, 1998 David C. Hammond, Esq., W. Bruce Shirk, Esq., and Mary Baroody Lowe, Esq., Powell, Goldstein, Frazer & Murphy, for the protester. Samantha L. Southall, Esq., Frank M. Rapoport, Esq., and Charles H. Carpenter, Esq., Pepper, Hamilton & Scheetz, for Forest Pharmaceuticals, an intervenor. Maura C. Brown, Esq., Philip S. Kauffman, Esq., and Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the agency. Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Solicitation for various dosages of a drug is improper where the solicitation fails to realistically state agency's estimated requirements for the various dosages; prohibits vendors from offering larger dosages of the drug, although agency concedes that doing so would lead to cost savings and agency has an identified need for the larger dosages; and the solicitation reflects an intent to modify the contract after award, on a sole-source basis without adequate justification, to add the larger dosages. 2. Agency properly may seek offers for different formulations of a drug under a single solicitation, and make a single award based on low price, where the agency determines that any of the available formulations will meet its requirements; agency's medical judgment regarding the relative efficacy of the different formulations is not appropriate for review within the context of a bid protest. 3. General Accounting Office will not consider protest that solicitation requirement violates Federal Healthcare Anti-Kickback Act, because the Act provides for obtaining advisory opinions on such matters from the Secretary of Health and Human Services, and those opinions are binding on the parties seeking the Secretary's opinion. DECISION Hoechst Marion Roussel, Inc. (HMR) protests the terms of request for proposals (RFP) No. M5-Q1-98, issued by the Department of Veterans Affairs (VA) for sustained action (administered once daily) Diltiazem, a calcium channel blocker used primarily in the treatment of hypertension. HMR argues that the RFP

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