Did the Agency Apply Unstated Criteria by Requiring Too Much Detail?

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The protester argued the agency applied unstated criteria by requiring too much detail in transition plans. The COFC rejected the argument, noting the solicitation specifically directed offerors to explain their transition approach “in detail.”

Air Borealis Ltd. v. United States, COFC No. 22-1554C
  • Lack of Detail – The agency found the protester’s transition plan was unacceptable due to a lack of detail. The protester complained, but the court found the agency’s conclusion reasonable. The protester’s transition proposal rested on generic language with little specific connection to performance.
  • Unstated Criteria – The protester contended the agency applied unstated by requiring too much detail. The court, however, noted the solicitation required a description “in detail” of how offerors planned to transition. Instead of applying unstated criteria, the agency merely found the protester had not provided what the solicitation required.
  • Disparate Treatment – The protester alleged the agency disparately evaluated transition plans, noting the awardee also didn’t provide details. The court rejected this, finding the level of detail in the awardee’s transition plan was not “nearly identical” to the level in the protester’s plan.
  • Lack of Prejudice – The protester asserted other evaluation errors that were more compelling. But to the extent the agency erred, the court found the protester had not been prejudiced. The protester’s unacceptable transition plan made it ineligible for award regardless of the evaluation errors.
  • CCC Endorsement – The solicitation sought air support in Canada. Thus, the Canadian Commercial Corporation, a corporation owned by the Canadian government, had a role in reviewing proposals. The protester objected to the role of the Canadian corporation. But the court found the protester had been aware of the Canadian corporation’s role before it submitted a proposal. Thus, the court found the protester waived any objection under Blue & Gold.

The protester is represented by Tyler Dahlin Evans, Caitlin Conroy, and Joseph McClure of Steptoe & Johnson LLP. The awardee is represented by Mark D. Colley, Amanda J. Sherwood, and Julia Swafford of Arnold & Porter Kaye Scholer LLP. The government is represented by Amanda L. Tantum, Brian M. Boynton, Patricia M. McCarthy, and L. Misha Preheim of the Department of Justice as well as Alissa J. Schrider and Sandy Caruco of the Air Force.

–Case summary by Craig LaChance, Senior Editor