OFFICE DESIGN GROUP, Plaintiff-Appellant v. UNITED STATES, CUNA SUPPLY, LLC, Defendants-Appellees, GOVSOLUTIONS, INC., Defendant
2019-1337
United States Court of Appeals for the Federal Circuit
March 6, 2020
Appeal from the United States Court of Federal Claims in No. 1:18-cv-01147-RHH, Senior Judge Robert H. Hodges, Jr.
JOSEPH ANTHONY WHITCOMB, Whitcomb, Selinsky, PC, Denver, CO, argued for plaintiff-appellant. Also represented by TIMOTHY TURNER.
TANYA KOENIG, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS K. MICKLE.
MATTHEW THOMAS SCHOONOVER, Koprince Law LLC, Lawrence, KS, for defendant-appellee Cuna Supply, LLC.
Before LOURIE, REYNA, and HUGHES, Circuit Judges.
Office Design Group appeals from an order of the United States Court of Federal Claims granting judgment on the administrative record for the government and Cuna Supply, LLC. Because Office Design Group fails to establish that the government‘s evaluation of its proposal was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm.
I.
On May 5, 2017, the United States Department of Veterans Affairs (“VA“) issued five Requests for Proposals (“RFP“) for the provision of healthcare furniture and related services for VA facilities. The five RFPs were essentially identical, except that each related to a separate geographic region. Each RFP contemplated awarding three to five contracts for indefinite delivery, indefinite quantity, with each contract having a five-year base period and one five-year option period.
The RFP1 established that the VA would award contracts based on a best-value trade off selection process that considered three primary evaluation factors: Technical Capability, Past Performance, and Price. The VA deemed Technical Capability more important than Past Performance, and Past Performance more important than Price.
Central to this appeal is Technical Capability subfactor 3. Subfactor 3 specified
Subfactor 3 also provided that the VA would evaluate each offeror‘s technical volume of its proposal, i.e., its “technical proposal,” based on the offeror‘s ability “to meet all services as defined in the Statement of Work.” The RFP noted that an “unacceptable” rating for any technical subfactor would result in an overall “unacceptable” technical proposal. An offeror with an unacceptable Technical Capability subfactor was ineligible for a contract award.
The RFP also included “Attachment 15,” an evaluation questionnaire containing thirty-three yes or no questions regarding the service requirements from the SOW and the eight key elements listed under subfactor 3. The questionnaire was divided into four sections, each corresponding to the four SOW sections—SV1, SV2, SV3, SV4. Reproduced below are the first seven questions of Attachment 15, which correspond to SV1 of the SOW.
In an amendment to the RFP, the VA clarified that Attachment 15 was to be used by the agency as a checklist to evaluate offerors’ technical proposals. The amendment provided that “Attachment 8 Sample Project Tech Evaluation and Attachment 15 Service Technical Questions are informational only. They are the checklists that will be used to evaluate the technical proposals.” J.A. 141 (emphasis added).
During contract evaluation, the VA assigned an offeror 2 points for each question in Attachment 15 that the offeror sufficiently addressed in its technical proposal. To receive a passing score for its technical proposal, an offeror needed to receive a minimum of 40 points, i.e., a “yes” for twenty of the thirty-three questions in Attachment 15.
Office Design Group (“ODG“) submitted a proposal for all five regions. The VA assigned ODG an unacceptable rating for its technical proposal, rendering ODG‘s
The VA awarded contracts to nine offerors under each of the five RFPs. Each of the awardees earned at least 40 points for its technical proposal.
ODG filed a bid protest before the Government Accountability Office (“GAO“), alleging that the VA (1) unreasonably and disparately evaluated its technical proposal in comparison to the awardees’ technical proposals and (2) improperly relied on Attachment 15 to evaluate its technical proposal. The GAO denied ODG‘s protest on both grounds. ODG then filed a bid protest before the Claims Court, alleging the same two grounds.2 The Claims Court determined that the VA‘s use of Attachment 15 was proper and that ODG had not shown that the VA‘s alleged disparate treatment was prejudicial error. The Claims Court denied ODG‘s motion for judgment on the administrative record and granted the government‘s and the defendant-intervenor‘s cross-motion for judgment on the administrative record. ODG timely appeals. We have jurisdiction under
DISCUSSION
We review the grant of a motion for judgment on the administrative record in a bid protest action de novo. Glenn Defense Marine (ASIA), PTE Ltd. v. United States, 720 F.3d 901, 907 (Fed. Cir. 2013). In a bid protest case, the inquiry is whether the agency‘s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and if so whether the error is prejudicial.” Id.; see also Alabama Aircraft Indus., Inc. Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009). “The court‘s task is to determine whether (1) the procurement official‘s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.” Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282, 1285-86 (Fed. Cir. 2010) (quoting Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009)).
On appeal, ODG raises the same two challenges it raised before the GAO and the Claims Court. First, ODG argues that the VA‘s reliance on Attachment 15 during the evaluation process was inconsistent with the terms of the RFP. Second, ODG argues that the VA disparately evaluated its technical proposal in comparison to those of various awardees. We address each argument in turn.
I.
ODG argues that the VA unreasonably strayed from the terms of the RFP by
The VA informed all offerors, including ODG, that Attachment 15 would be used to evaluate technical proposals. An amendment to the RFP noted that Attachment 15 was to be used as a “checklist[]” that “will be used to evaluate the technical proposals.” J.A. 141. Thus, contrary to ODG‘s contention, the record establishes that the VA provided clear, reasonable notice that the VA planned to use Attachment 15 to evaluate proposals.
II.
ODG argues that the VA disparately evaluated its technical proposal. According to ODG, although its technical proposal was sufficiently similar to the awardees’ proposals, the VA improperly assigned ODG‘s technical proposal a failing score. ODG provides seven examples of the VA‘s alleged disparate treatment of its technical proposal.
The Federal Acquisition Regulation requires an agency to treat offerors fairly and impartially.
Upon review, it appears that this court has not yet articulated a standard for evaluating disparate evaluation claims. The Claims Court, however, has done so, having adjudicated numerous disparate evaluation claims. To prevail at the Claims Court, a protestor must show that the agency unreasonably downgraded its proposal for deficiencies that were “substantively indistinguishable” or nearly identical from those contained in other proposals. See Enhanced Veterans Solutions, Inc. v. United States, 131 Fed. Cl. 565, 588 (2017); see also Red River Comput. Co. v. United States, 120 Fed. Cl. 227, 238 (2015); Sci. Applications Int‘l Corp. v. United States, 108 Fed. Cl. 235, 272 (2012); Chenega Mgmt., LLC v. United States, 96 Fed. Cl. 556, 585 (2010); Hamilton Sundstrand Power Sys. v. United States, 75 Fed. Cl. 512, 516 (2007).3 A protestor may also prevail by showing that the agency inconsistently applied objective solicitation requirements between it and other offerors, such as proposal page limits, formatting requirements, or submission deadlines. See Sci. Applications Int‘l Corp., 108 Fed. Cl. at 272 (citing BayFirst Sols., LLC v. United States, 102 Fed. Cl. 677 (2012)).
The record indicates that ODG‘s proposal was substantively distinguishable from other proposals in various respects.4 The RFP required offerors to provide a description of their interior designer‘s “experience and qualifications working on healthcare facilities and what hardware and software that will be used to produce digital and hard copy drawings.” J.A. 131. Unlike the awardees’ proposals, ODG‘s proposal did not address the hardware and software requirements. Compare J.A. 94-100, with J.A. 32.
The RFP also required an offeror to describe the “experience of the installation staff and Interior Design staff” as well as their “knowledge regarding life safety codes, infection control standards and patient privacy standards.” J.A. 131. Unlike the awardees’ proposals, ODG‘s proposal did not address whether its staff had experience with life safety codes, infection control standards, and patient privacy standards. Compare J.A. 94-100, with J.A. 25-26, 55, 88.
The RFP required offerors to provide a staffing plan that included its key personnel‘s qualifications and experience in a healthcare environment. But, as the Claims Court found, ODG submitted a staffing plan “that could not be compared to others.” J.A. 7. The Claims Court also noted that ODG‘s proposal said “little of the staff‘s qualifications in healthcare,” and that the comparators’ proposals were “more responsive and descriptive.” Id.
The RFP required offerors to describe the “technical capabilities of staff producing AutoCAD and/or PDF drawings of the as-built furniture installation.” J.A. 131. Unlike the awardees’ proposals, ODG did not address whether its staff will use AutoCAD or PDF to produce drawings. Compare J.A. 94-100, with J.A. 30, 55, 71, 88.
In light of these substantive differences, ODG cannot prevail on most of its claims of disparate treatment. ODG, however, has sufficiently established that the VA disparately evaluated its technical proposal in two instances. Both ODG and awardee A. Pomerantz failed to provide a (1) description of the process of inventory, cataloging and protecting VA property and (2) description of materials used and how they are applied to protect VA property during installation. The VA assigned 6 points to this awardee as if it had provided this information yet did not assign ODG any points.
To prevail, ODG must show that this instance of unequal treatment was prejudicial. Glenn Def. Marine (ASIA), 720 F.3d at 907. To establish prejudicial error, a protestor must show that but for
The Claims Court found that ODG was not prejudiced by the VA‘s disparate treatment. We see no error in this finding. Even if the VA awarded ODG the additional 6 points it afforded to the awardee, ODG‘s technical score would only increase to 18 points, well below the acceptable 40-point threshold for award.
In sum, many of ODG‘s various claims of disparate treatment amount to a request for this court to reevaluate its technical proposal and those of the various awardees. We are in no position to do so. For the few instances in which the VA did engage in disparate treatment, ODG has failed to establish that such error was prejudicial.
CONCLUSION
We have considered ODG‘s other arguments and find them unpersuasive. We affirm.
AFFIRMED
COSTS
No costs.