The Concourse Group, LLC v. United States
131 Fed. Cl. 481
| Fed. Cl. | 2017Background
- The Army issued an FSS solicitation (RFQ W9124J-15-R-0064) for MHPI-related financial, real estate, and consulting services, to be awarded on a lowest-priced technically acceptable basis with technical, past performance, and price factors.
- Technical capability had four subfactors (including corporate experience and understanding the Army MHPI program); solicitation allowed non-Army DOD MHPI equivalents but required offerors to explain how that experience "relates" or "ties back" to the Army program.
- Concourse, JLL (incumbent), and RER submitted proposals; the Army rated Concourse technically unacceptable and RER acceptable; Concourse received 21 evaluation notices (ENs), RER received 1.
- After rounds of revisions and EN responses, RER was the only tier-one bidder with an acceptable proposal and was awarded the task order; Concourse protested at GAO (lost) and then in the Court of Federal Claims.
- Concourse alleged the Army applied an unstated criterion requiring Army-specific MHPI experience, conducted inadequate/unclear discussions, treated Concourse disparately, and (in earlier filings) raised an OCI claim (which the court dismissed as waived).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Army applied an unstated evaluation criterion requiring Army-specific MHPI experience | Concourse: Army implicitly required Army MHPI experience, skewing evaluation in favor of RER (which had Army experience) | Gov/RER: Solicitation allowed non-Army DOD experience but required tie-back; Army rationally found Concourse failed to relate its non-Army experience to Army needs | Court: No unstated criterion; evaluation rationally reflected Concourse’s failure to tie non-Army experience to Army program requirements |
| Whether the Army’s discussions with Concourse were inadequate or not "meaningful" | Concourse: Under Part 15 standards, discussions were not meaningful and thus unfair | Gov/RER: Procurement was under FAR Subpart 8.4 (FSS); Part 15 meaningful-discussions standard does not apply; ENs were detailed and helpful; Concourse improved after ENs | Court: Discussions were fair under Subpart 8.4; ENs were specific and produced changes in Concourse’s ratings, so no unfairness or prejudice shown |
| Whether Concourse was prejudiced by alleged errors (and disparate treatment) | Concourse: Even if errors occurred, they prejudiced Concourse’s chance to win; also claims disparate treatment vs RER | Gov/RER: No prejudicial error; Concourse did not show a ‘‘substantial chance’’ it would have been awarded but for alleged errors; no separate evidence of disparate treatment | Court: No prejudice shown; Concourse failed to prove substantial chance; disparate-treatment claim subsumed and unsupported |
Key Cases Cited
- Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001) (agency must provide coherent, reasonable explanation of its discretionary procurement decisions)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency action must show a rational connection between facts found and choice made)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (protestor must show prejudice—substantial chance of award but for error)
- Alfa Laval Separation, Inc. v. United States, 175 F.3d 1365 (Fed. Cir. 1999) (prejudice standard; substantial chance test)
- Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345 (Fed. Cir. 2004) (standard for reviewing agency action under the APA)