The agency found the protester’s proposal acceptable but after a reevaluation determined it was unacceptable. The COFC said the agency egregiously bungled the reevaluation, misapplying requirements, ignoring information in the protesters’ proposal, applying unstated criteria, and failing to effectively communicate.
Anders Construction, Inc. v. United States, COFC No. 23-759
- Evaluation Switcheroo – The agency issued a solicitation seeking diving services. Anders submitted a proposal. The agency found Anders's proposal acceptable. But before award, the agency amended the solicitation. The amendment required offerors to resubmit their proposals. The agency reevaluated. This time, it found Anders’s proposal technically deficient. Anders filed suit with COFC challenging the evaluation.
- Record Keeping – The agency found Anders's proposal deficient under a record-keeping requirement. The agency said Anders had not submitted a completion report. But the court found offerors were not required to submit completion reports with their proposals; the reports were only required during performance.
- Lost Divers Plan – The agency penalized Anders for not submitting a lost divers plan. The court, however, found Anders had submitted a plan. To be sure, it was not labeled as a “lost divers plan,” but neither the solicitation nor any regulations required standardized labeling.
- Administrative Procedures – The agency’s reevaluation found Ander’s administrative procedures were not comprehensive enough. The court noted the agency’s initial evaluation had found the procedures adequate. The reevaluation, however, had inserted a “comprehensiveness” criterion. The court found this new deficiency was irrational.
- Employee Documentation – The agency dinged Anders for not including a diving certificate for one of its employees. The court noted a diving certificate was not required for this employee because he had not been listed as a diver.
The protester is represented by Jonathan S. Forester of Riess LeMieuz LLC. The government is represented by Brendan D. Jordan of the Department of Justice.
--Case summary by Craig LaChance, Editor in Chief
COFC - Anders