Imagine you’re a world-class tennis player who was eliminated from the quarterfinals of Wimbledon. Now suppose that in the finals, there’s an egregious out-of-bounds call. As someone eliminated in a previous round you wouldn’t have grounds to complain about the call. You’re not part of the competition anymore; the call doesn’t impact you. The same goes for offerors eliminated from the early stages of a procurement. Here, the protester was excluded from the competitive range but then complained about the evaluation of offerors still in the range. The court found the protester had not been prejudiced by any alleged error in the subsequent evaluation.
REV, LLC v. United States, COFC No. 21-1011C
Background
The VA issued a solicitation seeking a range of IT services. The solicitation contemplated a two-phase evaluation process. In each phase, offerors were required to submit proposals responding to sample tasks. The VA received 94 proposals. After the first phase, the VA found 61 of the proposals unacceptable. After evaluating the remaining proposals in phase two, the VA established a competitive range. Any proposal that had received a technical rating less than Good was excluded from the competitive range. One of the offerors excluded from the competitive range, REV, LLC, filed a protest with the Court of Federal Claims.
Legal Analysis
- Court Was Cool with Past Performance Evaluation – REV alleged the VA had phoned-in the past performance evaluation—didn’t differentiate between ratings, no analysis, cut and pasted its findings. The court found this was just disagreement and that the agency considered all relevant factors.
- No Disparate Evaluation – REV complained that the VA treated offers unequally assigning strengths to features of some offerors but assigning REV weaknesses for similar features. The court disagreed, finding that REV’s proposal was not similar to the other offerors.
- REV Lacked Standing to Challenge the Subsequent Evaluation – REV argued that the VA erred in evaluating proposals within the competitive range, claiming that offerors in the range should have been found ineligible, that the agency didn’t hold meaningful discussions, and didn’t properly address an OCI. The court found that REV lacked standing to make these arguments. The fact remained, REV had been excluded from the competitive range. Even if the agency had botched the subsequent evaluation, it didn’t affect the evaluation of REV’s proposal. If one of those other offerors had been eliminated from the competitive range, REV was not in line for admission to the range.
REV is represented by Jon D. Levin, W. Brad English, Emily J. Chancey, and J. Dale Gipson. Intervenor Aptive Resources is represented by John R. Prairie, Cara L. Lasley, and Jennifer Eve Retener. Intervenor Decisive Point Consulting is represented by Jonathan D. Shaffer. The government is represented by Eric J. Singley, Brian M. Boynton, and Reginald T. Blades, Jr. of the Department of Justice as well as by Frank V. DiNicola, Desiree A. DiCorcia, Tara L. Nash, and Christopher Murphy of the Department of Veterans Affairs.