Blue Water Thinking, LLC v. United States
21-1019
| Fed. Cl. | Mar 21, 2022Background
- The VA issued solicitation No. 36C10B19R0046 (T4NG on-ramp) to award multiple SDVOSB IT services contracts (five-year base + five-year option; billions in total value); evaluation based on Technical (with two subfactors: Sample Task 1 & 2), Past Performance, Veterans Employment, Small Business Participation, and Price.
- Evaluation proceeded in phases: Step One (Sample Task 1 + price) to establish a competitive range; Step Two (Sample Task 2, management, past performance, veterans employment, SBPC, price) for final selection.
- Government prepared a benchmark “government solution” and evaluated Sample Task 1 responses for strengths, weaknesses, or deficiencies across high-level focus areas; an amendment allowed only a one-time resubmission of Sample Task 1 for format compliance.
- Plaintiff (Blue Water Thinking, LLC) received Acceptable for Sample Task Subfactor (overall Technical = Acceptable), Low Risk Past Performance, Outstanding SBPC, and proposed ~$7.78B; the VA excluded plaintiff from the final competitive range and awarded contracts to nine offerors.
- Plaintiff protested to GAO (denied) and then filed suit in the Court of Federal Claims alleging improper technical evaluations, disparate treatment, and failure to give proper weight to non-technical factors. The court denied plaintiff’s RCFC 52.1 motion and granted defendant’s and intervenor-defendant’s cross-motions, dismissing the complaint with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue (interested party) | Blue Water: as an actual offeror rated technically acceptable but excluded, it had a substantial chance and direct economic interest. | Gov: did not dispute standing; parties agreed in supplemental brief. | Court: Plaintiff has standing — substantial chance to be in the competitive range. |
| Sample Task 1 evaluation & disparate treatment | Blue Water: VA downgraded for lacking "detail" and failed to consider logical implications; other offerors with similar omissions were treated more leniently. | VA: evaluation applied solicitation criteria, required detail was reasonable, and differences among proposals justified different ratings. | Court: VA’s evaluation was rational and adequately documented; plaintiff’s disparate-treatment claims fail (no substantive indistinguishability). |
| Sample Task 2 (architecture diagram) & unstated criteria | Blue Water: assigned a significant weakness for omitting references in its separate diagram even though narrative contained the material; VA applied an unstated or overly narrow criterion and treated other offerors differently. | VA: Sample Task 2 required a separate diagram within page limits; evaluators reasonably declined to piece together narrative and diagram; omissions were substantive. | Court: VA reasonably applied the solicitation’s deliverable requirements and properly assigned the weakness; no arbitrary or disparate treatment. |
| Consideration of non-technical factors in competitive-range decision | Blue Water: VA "dispatched" past performance and veterans employment factors in conclusory fashion, failing to account for meaningful differences. | VA: record contains extensive, detailed evaluations (presentations, slide decks, memoranda) showing comparative analysis across all factors. | Court: VA sufficiently considered non-technical factors; competitive-range determination was not arbitrary or capricious. |
Key Cases Cited
- Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009) ("interested party" standing requires actual/prospective bidder with direct economic interest)
- Rex Serv. Corp. v. United States, 448 F.3d 1305 (Fed. Cir. 2006) (standing/interest test elements)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (two-step bid-protest review; showing substantial chance)
- Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) (prejudice standard: substantial chance of award)
- Statistica, Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir. 1996) (prejudice/substantial chance discussion)
- Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (competitive-range standing and prejudice)
- Glenn Def. Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901 (Fed. Cir. 2013) (APA arbitrary-and-capricious standard applied to procurements)
- Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054 (Fed. Cir. 2000) (highly deferential standard to contracting officers)
- Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281 (U.S. 1974) (narrow scope of arbitrary-and-capricious review)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (review limited to whether agency considered relevant factors)
- Office Design Grp. v. United States, 951 F.3d 1366 (Fed. Cir. 2020) (disparate-treatment requires proposals be substantively indistinguishable)
- E.W. Bliss Co. v. United States, 77 F.3d 445 (Fed. Cir. 1996) (court should not second-guess minutiae of agency evaluation)