Medical Equipment Purchase Procedures for Veterans

No insight on this one?

Admittedly, I don't really understand the situation or context for questions. (Is this question about contracting for supplies using appropriated funds?)

Does FAR apply to the ordering of the prosthetic? If yes, does FAR 6.302 or FAR 13.106-1( b ) apply?

Sounds like routine brand-name contracting. See if FAR 11.105 helps you.

Thanks, @Jamaal Valentine 

I realize that I packed a lot into my first question. I'll try to unpack it with a bit more factual context.

The fundamental question is about purchasing authority. Generally, prescribing doctors working with VA patients do not have warrants. They are not authorized purchasers. They cannot bind the government. But they are responsible for determining what is medically necessary for patient care. 

Here, I'm trying to figure out how procurement of prosthetics works. Prosthetics are defined broadly by VHA to include basically anything that replaces, supports, or complements the human anatomy (e.g., orthotics, hearing aids, medical equipment and supplies, etc). According to VHA Handbooks 1173.1 ,  1173.2 and 1173.08 , VHA Prosthetic Departments are responsible for procurement of prosthetics.

Here is the scenario:

• Dr writes Rx for a specific prosthetic item deemed necessary for a veteran patient.
• Rx is for a COTS prosthetic that is under the micro-purchase threshold and is on VA Schedule.
• Other manufacturers that sell this general type of COTS prosthetic to the federal government. 
• Dr thinks this particular COTS prosthetic is best for patient care. 
• Rx is sent to the local VHA Prosthetics Department and a prosthetics purchasing agent makes the purchase.
• Prosthetics procurement agent decides to purchase a different COTS product from a different vendor.
• Dr. is not happy and neither is patient.

 Does a Prosthetic Purchasing Agent have the authority to ignore the Dr choice of prosthetic?

Thanks for any insight you can offer!

FWIW - this appears to be the form that purchasing agents use to place prosthetic orders - Prosthetic Authorization for Items or Services, VA Form 10-2421

When i worked at the VA, I never worked prosthetics, but this may answer some of your questions.  

Most prosthetic are sole source procurements. See 38 U.S. Code § 8123

See VHA Directive 1081 in part below. 

(4) Network Contracting Officers are responsible for: (a) Complying with the clinician's prescription. The CO does not have the authority to change or override a clinician's prescription but should ensure that the prescription adequately supports use of sole source authority under 38 U.S.C. 8123.

NenaLenz said:

Does a Prosthetic Purchasing Agent have the authority to ignore the Dr choice of prosthetic?

I don't see that as a contracting question. I recommend you pose that question to the agent's supervisor and/or person who delegated their warrant authority. (I don't even know if the agents you are referencing have warrants and are subject to FAR; OR are supply technicians, medical logistics specialists, etc. not subject to FAR)

I previously lead a team working medical contracts for several years; we received a lot of brand-name justifications under similar circumstances. I don't know the inner workings of the VA, but from a practical standpoint I would think the agent should have purchased what the funds were committed for...if they weren't going to (e.g., needed a brand-name justification), they should have communicated with the requestor.

*I was unaware of the two previous posts while I was posting; @Deaner seems to have nailed it.

@Jamaal Valentine and @Deaner - thank you for the input. This is exactly what I needed.

Follow-up question - If the purchasing agent refuses to change his or her purchase order, which is the appropriate procedure for disputing/appealing the purchase? Thanks!

NenaLenz said:

Follow-up question - If the purchasing agent refuses to change his or her purchase order, which is the appropriate procedure for disputing/appealing the purchase? Thanks!

I would say that you should talk to their supervisor and point out the VA’s regulation referenced above.

NenaLenz said:

Follow-up question - If the purchasing agent refuses to change his or her purchase order, which is the appropriate procedure for disputing/appealing the purchase? Thanks!

File a protest.

Oh are you government or the supplier?

Just now, joel hoffman said:

Oh are you victor the supplier?

Supplier

NenaLenz said:

Supplier

Since it is a micro purchase, I’m not sure that you can protest - at least I don’t know how to. I think that the Dr. and  the patient should express their dissatisfaction to the specialist and/or elevate the matter.

You can not begin work on the purchase order and/or refuse it in writing.  It's an offer to you, so refusing it is OK.  If you already began work on it then you might be stuck.

Add on to info provided by Deaner and Jamaal do not forget about the VAAR and internal agency policy.  By example there is this https://www.va.gov/finance/docs/VA-FinancialPolicyVolumeXVIChapter01B.pdf regarding micro-purchases.

There is another resource as well that I would consult which I am guessing you have reviewed.  That is the VA schedule that you reference as reading between the lines the supplier is on the schedule and there would be I am guessing language in it about  its use, mandatory or otherwise.

In the end I am not confident a protest is the best or even workable approach but it does depend on the VA schedule language most specifically.   Otherwise if there is no mandatory language and based on quick research where there are no protests related to FAR subpart 13.2 listed in the WIFCON protest by FAR webpage my conclusion is the same as Joel's.  Options are  reaching out administratively to the CO of the VA schedule to voice concern.  Likewise, as "schedule" to me implies an IDIQ like multiple award contract where there might be discussion in the parent schedule contract about an ombudsman to whom concerns about proper use of the schedule are to be referred to.

This thread is becoming very confusing to me. If you are the supplier that was chosen, what did you actually propose? Or if you are the supplier that was selected did they just make an order? I don’t understand why, if you are the supplier, You are complaining about the order.

Odds are @NenaLenz is (or advises/represents) the supplier of the prosthetic that physician put on the prescription, but didn't receive the purchase order.

Matthew Fleharty said:

Odds are @NenaLenz is (or advises/represents) the supplier of the prosthetic that physician put on the prescription, but didn't receive the purchase order.

Yes. We are the supplier that the doctor and patient prefer.

Nena, then I think that the doctor needs to justify and insist upon the prescribed brand name item for the patient. 

Apparently, the VAAR policy would support that if the Dr. can justify it. 

I hope that the purchase isn’t finalized yet.  

“Prefer” isn’t a very strong reason by itself, however.

Now, I’m wondering — how did the unhappy prosthetics contractor learn that a purchasing agent bought at item using a micro-purchase from a different vendor?

ji20874 said:

how did the unhappy prosthetics contractor learn that a purchasing agent bought at item using a micro-purchase from a different vendor?

Does the answer impact the analysis?

Not really.  Though it underscores the nature of competing for these public dollars.  Oftentimes, people are loose with their lips, and only part of the story gets conveyed. Bad communication leads to misunderstanding.  I'm sure you will get your share of public dollars.

Good luck.

Yes.  If you learned about it, you can protest it.

Maybe the prescribing physician didn’t get his rebate?  I have heard that pharmaceutical companies incentivize physicians to prescribe their products — maybe prosthetics companies do the same thing?

Or maybe the physician prescribed an “or equal” and the purchasing agent bought an equal?

ji20874 said:

Yes.  If you learned about it, you can protest it.

Yes, the company learned about it -- this is helpful. Thank you

ji, what would the basis of the protest be? Seems like the government could use the defense that the contracting officer has the discretion to use competition rather than a sole source brand-name product, if the justification by the Dr. was insufficient or missing.  

 Of course, we don’t know if the government did use competition. They may have simply selected another vendor. The context is pretty sparse. 

Suppose that I could read the entire VAAR...

However, if the doctor isn’t upset enough to do something about it, then I doubt that anyone else will either.

joel hoffman said:

if the doctor isn’t upset enough to do something about it, then I doubt that anyone else will either.

What about the patient?  These transactions are for the benefit of the veteran/patient.  What the agent did may not be in the patient's best interest.  This reminds me of the old saw from my time in the Army that "nothings too good for the troops and that's exactly what they will get."

Because this is a micro-purchase for a COTS product on the VA FSS, there was no requirement for competition if the procurement agent gets a Dr. Rx. My understanding is that the VA Dr and patient saw the product and tested it to make sure of fit and function for the specific needs of the patient. The Rx was sent to purchasing dept. When a product was delivered to patient home, it was an entirely different product.

From a patient perspective, this is outrageous.  The doctor and patient determined what would be best for the patient.  Yet some medically unqualified bureaucrat may have determined that something else would be appropriate.  These types of acquisition are not your typical procurements where an item is being purchased for the government.  These acquisitions are for the benefit of the patient.  It seems like the VA regs are written with the patient in mind, as they should be.  If a purchasing agent did not follow those rules and substituted his/her judgment for that of the doctor and patient, the VA should take remedial action against the agent.

I agree with everyone. But it sounds like an internal VA problem and/or between the patient- doctor and the VA contracting personnel. I don’t know how that would provide standing for Nena’s firm or client firm  to “protest” the micro purchase. That’s why I’m recommending resolution between the Dr. and the purchasing office if the patient wants to pursue it.