A federal judge delivered a scathing rebuke to the U.S. Navy this week, comparing the agency’s procurement evaluation to a hapless Battleship player who indiscriminately picks their shots and fails to hide their ships. In Advanced Technology Systems Company v. United States, Judge Zachary Somers eviscerated the Navy’s past performance evaluation, finding the Navy “carelessly chose ambiguous words” and failed to explain its award decision. This case highlights how a single evaluation misstep can topple an entire best value determination.
The decision also serves as a reminder that sloppy evaluation criteria and post-hoc rationalizations won’t withstand judicial scrutiny. More specifically, it shows how treating different past performance ratings as equal—without explanation—can invalidate a $100 million contract award.
The Maritime Surveillance System Procurement
The case centered on a Navy contract to provide Egypt with a Nationwide Maritime Surveillance System (NMSS) through a foreign military sale. The Navy sought a contractor to deliver surface search, underwater detection, and monitoring capabilities along Egypt’s Mediterranean and Red Sea borders.
Five companies submitted proposals, including the protester, Advanced Technology Systems Company (ATSC), and the eventual winner, Forward Slope, Inc. (FSI). The Navy evaluated proposals across five factors. Past performance was the third most important factor.
Under the solicitation’s past performance factor, the Navy assessed two components: “Relevance” (how similar past work was to the current contract) and “Confidence” (how well contractors performed on relevant past contracts). The Navy could assign Relevance ratings from “Very Relevant” to “Not Relevant” and Confidence ratings from “Substantial Confidence” to “No Confidence,” with “Neutral Confidence” for contractors lacking relevant past performance.
The Navy awarded the contract to FSI, determining that past performance wasn’t a “discriminator” because FSI received a “Neutral Confidence” rating while ATSC received “Satisfactory Confidence.” According to the Navy, ATSC’s “Satisfactory Confidence” rating and FSI’s “Neutral Confidence” rating were essentially equal for award purposes.
ATSC protested, arguing that the Navy had botched the evaluation and the best-value determination.
The Neutral Confidence Fiasco
ATSC argued that the Navy adopted a “legally erroneous premise” by treating FSI’s Neutral Confidence rating as equivalent to ATSC’s Satisfactory Confidence rating, effectively excluding past performance from the best-value analysis.
The government defended the decision, claiming the Navy determined that Neutral and Satisfactory ratings would be “considered as equal” for this procurement.
Judge Somers demolished this defense. First, he found the government’s explanation constituted impermissible “post hoc rationalization.” The Navy never stated contemporaneously that it would treat these ratings equally—this justification only appeared in post-award debriefing documents prepared for litigation.
Second, even if not post hoc, the Navy’s justification was “wholly conclusory.” The debrief stated the Navy “could have” treated Satisfactory ratings as more valuable than Neutral ratings but chose not to, without explaining why. The judge noted that this explanation-free decision violated basic administrative law principles, which require agencies to articulate their reasoning.
Third, the Navy’s approach contradicted established caselaw. Federal courts have repeatedly held that agencies may—and typically should—treat Satisfactory Confidence ratings more favorably than Neutral Confidence ratings. The Navy’s decision to treat them equally because it “seemingly believed it was required to do so” was simply wrong.
This error wasn’t harmless. The judge found that proper consideration of past performance would have given ATSC advantages in two of the four non-cost factors, potentially changing the award outcome.
The Navy’s Incomprehensible Relevance Ratings
ATSC challenged the Navy’s “Not Relevant” ratings for two of its past performance references, arguing the Navy applied inconsistent and incomprehensible standards.
Judge Somers agreed with ATSC. He found the Navy’s relevance ratings to be fundamentally flawed. The solicitation distinguished between “Somewhat Relevant” references (involving “some” scope and complexities) and “Not Relevant” (involving “little or none” of the scope and complexities).
The problem? The Navy couldn’t explain the difference between “some” and “little.” The judge noted that dictionary definitions make these terms nearly synonymous: “some” means “a certain amount; a little,” while “little” means “small in amount, number, or degree.”
The Navy’s explanations only made things worse. It deemed one ATSC contract “Not Relevant” because the size and complexity were “substantially less” than required. In contrast, it rated another contractor’s work “Somewhat Relevant” despite it being “less” than required. The judge found that these “vague words” created a “consistently inconsistent” rating system, making meaningful evaluation impossible.
Because the Navy relied on this incomprehensible system to evaluate proposals and make its award decision, the court found prejudicial error.
The Same-Contract Double Standard
ATSC argued that the Navy disregarded the fact that both ATSC and its proposed subcontractor had “Very Relevant” past performance references on the same contract. ATSC contended the Navy had arbitrarily penalized the company for having two references from the same contract while not similarly penalizing another offeror that also had two references from the same contract.
Judge Somers found this was a clear error. The Navy allowed one offeror to claim separate past performance references for the same contract while penalizing ATSC for the same arrangement. The Navy credited one offeror with two past performance references from one contract. But it treated ATSC’s two references from the same contract as one reference because they were from the same contract. This disparate treatment was “irrational” and prejudicial. A proper evaluation could have elevated ATSC’s past performance rating, potentially changing the award outcome.
Injunctive Relief Denied Despite Victory
Although ATSC prevailed on the merits, Judge Somers denied injunctive relief due to national security concerns. The government submitted classified declarations detailing specific national security risks that would result from enjoining contract performance. The court found these concerns outweighed ATSC’s harm and remanded the case to the Navy for corrective action within 45 days.
A Cautionary Tale for Procurement Officials
This decision delivers a powerful message about procurement evaluation standards. Judge Somers’ harsh tone—comparing the Navy to an incompetent Battleship player—reflects his frustration with sloppy evaluation practices that waste taxpayer money and undermine fair competition.
Moreover, the case illustrates how seemingly minor evaluation errors can cascade into significant problems. The Navy’s failure to define basic terms, such as “some” versus “little,” created an arbitrary rating system. Its decision to treat different confidence levels equally—without explanation—eliminated an entire evaluation factor. These individual errors combined to create an unjustified award.
ATSC is represented by Philip E. Beshara, Carla Weiss, Robert Nichols, Logan Kemp, and Annie Hudgins of Nichols Law. The awardee, FSI, is represented by Tara D. Hopkins, Jonathan Shaffer, Zachary Prince, and Jesse Cardinal of Haynes Boone. The government is represented by Matthew P. Roche, Patricia M. McCarthy, and Yaakov M. Roth of the Department of Justice as well as by Jessica K. Eddy of the Navy.
