The protester challenged the evaluation of several awardees. The COFC found the protester lacked standing, reasoning that even if the evaluation of the awardees was flawed, it wouldn’t affect the protester’s chance at award. The Federal Circuit reversed, holding that if the protester was successful in challenging other awardees, it had a chance at award.
REV, LLC v. United States, Aptive Resources, LLC, Fed. Cir., 2022-1759
- Protester Eliminated – The agency issued a solicitation for a multiple-award contract. The solicitation contemplated a two-phase evaluation, with each phase involving a down select. The protester made it through the first phase but was eliminated in the second phase. The agency only selected the top nine offerors in phase two. The protester fell just short of the top nine.
- COFC Protest – The protester filed suit in the COFC. The protester challenged the evaluation of its proposal. The protester also challenged the agency’s evaluation of some of the awardees. The COFC found the agency’s evaluation of the protester was reasonable. As to the challenge to the evaluation of the awardees, the COFC found the protester lacked standing. The COFC reasoned the protester had been eliminated before the agency evaluated the remaining proposals. The protester thus could not establish it had been prejudiced by anything that happened after the protester was eliminated.
- Protester Had Standing – The protester appealed to the Federal Circuit. The court reversed the COFC on the standing issue. The agency selected nine awardees. The protester was ranked 10th or 11th. The protester challenged the evaluation of six awardees. The court reasoned that if the protester were successful in those challenges, it would have a substantial chance of receiving award.
- Good Rating – The agency had only selected offerors who had a Good technical rating. The government argued the protester only had an Acceptable rating, so it never had a substantial chance for an award. But the Federal Circuit opined that the agency had not set the floor at Good until after it determined how many offerors met the Good rating. If the protester were to prevail on its protest, the agency might have lowered the minimum rating to Acceptable in which case the protester would have been in line for award.
The appellant is represented by Thomas Saunders of Wilmer Cutler Pickering Hale and Dorr LLP. And John Davidson Levin of Maynard Nexsen PC. The intervenor is represented by John Prairie, Jennifer Eve Retener, and Cara Lyn Sizemore of Wile Rein, LLP. The government is represented by Eric John Singley, Reginald Thomas Blades, Jr., Michael Granston, and Patricia McCarthy of the Department of Justice.
–Case summary by Craig LaChance, Senior Editor
