COFC decision denying a protest is affirmed. The protester claimed the agency had disparately evaluated its proposal. The Federal Circuit, noting that it had never articulated a standard for assessing disparate evaluation claims, decided to adopt the COFC’s standard. A protester asserting a disparate evaluation must show that it was downgraded for deficiencies that were substantively indistinguishable from those in other proposals. Applying this standard, the Federal Circuit found that the protester’s proposal was substantially distinguishable from other proposals.
The Department of Veterans Affairs issued solicitations for awards of multiple IDIQ contracts in for healthcare furniture and related services in five geographic areas. The solicitation include “Attachment 15” an evaluation questionnaire with 33 yes or no questions. The VA told offerors that Attachment 15 would be used by the agency as a checklist to evaluate offerors’ proposals. The VA would assign offerors 2 points for each question offerors received a “yes” on. Offerors needed to receive a minimum of 40 points to be considered for award.
Office Design Group submitted proposals in response to the solicitations. The VA found Office Design’s proposals unacceptable. The company only received 12 points under the Attachment 15 questionnaire. What’s more, the VA found that Office Design’s proposals lacked detail. Office Design filed a protest with GAO, which was denied. It then filed a protest with the Court of Federal Claims. COFC denied that protest, and Office Design appealed to the Federal Circuit.
Office Design raised two issues on appeal. First, it claimed the VA unreasonably relied on Attachment 15 to evaluate its proposal. The Federal Circuit rejected this, noting that the VA had informed all offerors that Attachment 15 would be used during the evaluation.
Additionally, Office Design argued that the VA had disparately evaluated its technical proposal. The Federal Circuit noted that it had not yet articulated a standard for evaluating disparate claims. The court decided to adopt COFC’s standard. To prevail on a disparate evaluation claim at the COFC, a protester must show that the its proposal was downgraded for deficiencies that were substantively indistinguishable from those contained in other proposals.
Applying this standard, the court found that, for the most part, the VA had not disparately evaluated Office Design’s proposal because it was substantively distinguishable from other proposals. For instance, unlike other awardees, Office Design did not address hardware and software requirements. Additionally, unlike other awardees, Office Design did not address whether its staff had experience with safety codes, infection control standard, and patient privacy. Also, unlike other awardees, Office Design did not address whether its staff would use AutoCAD or PDG to produce drawings.
The court did find that the VA had disparately evaluated Office Design in two instances. Specifically, it had penalized Office Design for not providing certain information but awarded another offeror 6 points even though that other offeror had not provided the same information. Nevertheless, the court found that Office Design had not been prejudiced by the disparate evaluation. Even if Office Design had received those point, it still would have only had 18 points under the Amendment 15 questionnaire and thus still been unacceptable.
Office Design is represented by Joseph Anthony Whitcomb of Whitcomb Selinsky, PC. Defendant-appellee Cuna Supply is represented by Matthew Thomas Schoonover of Koprince Law LLC. The government is represented by Tanya Koenig, Joseph H. Hunt, Robert Edward Kirschman, Jr., and Douglas K. Mickle of the U.S. Department of Justice.
