Medline Indus. v. United States

Medline Indus. v. United States

Opinion

 [*526]  MEMORANDUM OPINION AND ORDER

TAPP, Judge.

If there can be a literary analogy to this government procurement, it would be Longfellow's The Wreck of the Hesperus which chronicles a prideful sea [**2]  captain's avoidable downfall on the rocks of Norman's Woe.² Like the experienced crew of the Hesperus, agency personnel warned of the perils of a plotted course and when ignored, "[d]own came the storm and smote amain, the vessel in her strength" leaving behind only a "dreary wreck" awash upon the shoals.³

This is a consolidated bid protest brought by Concordance Healthcare Solutions, LLC ("Concordance") and Medline Industries, Inc. ("Medline"). It is related to another protest brought by Owens & Minor Distribution, Inc. ("O&M"), in which Concordance intervened as a plaintiff. O&M et al. v. United States et al., Case No. 21-1341. Both protests relate to the Department of Veterans Affairs' ("VA") procurements of medical and surgical supplies. The root of the controversy is the VA's attempt to transfer the requirements from its own procurement to existing contracts held by the Defense Logistics Agency ("DLA"). Although the United States has represented that the transfer is cancelled—a matter of some dispute—several issues remain.

I. Background

The factual and procedural background of this case is complex. In brief, the DLA awarded contracts for medical and surgical [**3]  supplies in 2016. The VA made its awards for medical and surgical supply contracts in October 2020. After the VA's awards (or at least after bidding had closed), the VA announced that it was moving its requirements to the DLA. Under the transfer plan, DLA contractors would receive a windfall, essentially doubling  [*527]  the size of their existing Indefinite-Delivery Indefinite-Quantity ("IDIQ") contracts. The VA contractors would be left holding the bag, not knowing when or if the VA would terminate their contracts as the requirements transitioned. As if this were not chaotic enough, all the while, the VA undertook corrective action pursuant to protests at the Government Accountability Office ("GAO"). Subsequently, that corrective action, as well as the transfer and the VA procurement itself were challenged in this Court. Still, several offerors were compelled to submit revised bids for a "Schrödinger's procurement" with the VA.⁴ Those offerors' proposals were due during the period they were challenging the scope and transfer of the VA contract, in addition to challenging the corrective action, in this Court.

The United States (successfully) fought against temporary and preliminary injunctive [**4]  relief. But when presented with opening briefs from Medline and Concordance detailing the agency record, the United States sought to secure partial remand without explicitly confessing error (also, a matter of some dispute) by spinning off several claims into a new case while refusing to stay agency action. That request added bedlam to already existing chaos. Ultimately, the Court denied the request for remand. The matter is now fully briefed. Having provided the landscape, additional details are necessary to resolve the remaining legal issues.

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