VA EHR award to Cerner contested by CliniComp (updated)

See update below. CliniComp International, a current specialized EHR vendor to some Department of Veterans Affairs locations and to the Department of Defense for clinical documentation since 2009, has filed a bid protest in the US Court of Federal Claims on Friday 18 Aug, saying that VA improperly awarded a contract to Cerner in June [TTA 7 June] without a competitive bidding process.

At the time, VA Secretary David Shulkin moved the award via a “Determination and Findings” (D&F) which provides for a public health exception to the bidding process. Without this, competitive bidding could take six to eight months, as Dr. Shulkin stated to a Congressional committee after the award–or two years, as DoD’s did–and would have further slowed down the already slow adoption process. Even if all goes well, the transition from VistA to Cerner will not begin at earliest until mid-2019 [TTA 14 Aug]. The Cerner MHS Genesis choice was also logical, given the Federal demand for interoperability with DoD. In June, the House Appropriations Committee approved $65 million for the transition, provided that VA provides detailed reports to Congress on the transition process and its interoperability not only with DoD’s but also private healthcare systems.

CliniComp objected to all that, saying in the protest that VA had enough time for an open bidding procedure, that the failure to do so was “predicated on a lack of advance planning,” and that awarding it to Cerner without it was “unreasonable”. “As shown by the nine counts set forth below, the VA’s decision to award a sole-source contract to Cerner is arbitrary, capricious, an abuse of discretion and violates the CICA and Federal Acquisition Regulations,” according to the suit.

According to Healthcare IT News, “CliniComp said it filed an agency-level protest to contest the sole source award shortly after the announcement, according to the complaint. But the VA Deputy Assistant Secretary for Acquisition denied the protest on Aug. 7. In doing so, the VA violated the Competition in Contracting Act of 1978, the company claims.”

This is not CliniComp’s first bid protest. Before one dismisses the bid protest as sour grapes picked by a minor vendor, this Editor discovered via Law360 that CliniComp was successful in a VA bid protest in August 2014. In this case, VA had a $4.5 million contract for computer systems at several intensive care units for saving patient waveform biometrics. The VA’s award to Picis in October 2013 was overturned because the Court of Federal Claims found that in clarifying the CliniComp bid, VA never had official discussions with CliniComp, only informal requests for clarifications. The court found that the two bids were not evaluated the same way–and that likely both were acceptable, with CliniComp’s bid preferable because it was lower. (More on CliniComp and its 30-year history here)

Update. Arthur Allen in POLITICO Morning e-Health also did his homework and found the same Law360 article on CliniComp’s 2014 bid protest win, adding the following:

  • DoD and VA officials have complained that CliniComp’s software is not compatible with legacy systems. However, some IT experts have noted that neither DoD nor VA can provide platforms which can be interoperable with Cerner. (Circular firing squad?)
  • Oral arguments are set for 2 October, if necessary, after motions are filed next month. Cerner joined in the defense against the protest as of Monday. 

Will the brakes be put on Cerner’s work while the protest wends its weary way through the Federal Claims Court? The bid protest is high-profile embarrassing for VA, though the D&F is completely legal. Stay tuned. Also Modern Healthcare, KCUR, Healthcare Dive

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