COFC decision denying a protest is affirmed. The protester argued on appeal that the agency had made a mathematical error in evaluating price. The court, however, found that the agency’s method for evaluating price was simply another methodology that still captured the same price difference between proposals as the protester’s methodology. The protester also argued that the evaluators disparately evaluated proposals under a corporate experience subfactor. But the court found that even if the evaluators had erred in evaluating corporate experience, that error had not been carried over to the source selection decision. Thus, the protester could not demonstrate prejudice.
The Department of Veterans Affairs awarded a contract to Optum Public Sector Solutions to provide veterans with community-based healthcare. An unsuccessful offeror, WellPoint Military Care Corporation, filed a bid protest with the Court of Federal Claims, alleging the VA had botched the price and corporate experiences analyses. The COFC denied the protest. WellPoint appealed to the Federal Circuit.
WellPoint first alleged the VA committed a mathematical error in calculating price. The VA had assigned WellPoint’s price a weighted score of 0.24398 meaning that its price was 24.398% less than what the government expected to pay. The VA assigned Optum a weighted score of 0.18968, meaning its price was 18.968 less than the government estimate. The SSA concluded that WellPoint’s score represented 5.340% in additional costs savings, which was the difference between 24.398% and 18.968%. WellPoint alleged that SSA was required to use the relative difference in savings between their proposed prices, which was 28.627%.
The court, however, held that the methodology WellPoint advanced was merely a different way of describing the same comparison. WellPoint’s cost savings, which were about $134 million, could be represented by either the difference between weighted scores or the difference between prices. Either methodology yielded the same amount of savings. WellPoint argued that the SSA should have cited the “true magnitude”—that is, the dollar amount of cost saving in each proposal. But nothing the FAR or CICA requires an SSA to recite the true dollar amount in a decision.
Next, WellPoint argued that the VA disparately evaluated WellPoint and Optum under a corporate experience subfactor. Basically, WellPoint alleged that the evaluators focused too much on WellPoint as an individual entity and failed to credit the company for the strengths of its corporate parent. In contract, WellPoint contended, the evaluators never criticized Optum for its individual capabilities and credited Optum with the experience and capabilities of its corporate family.
The court noted that even if the evaluators had disparately evaluated offers, WellPoint would not have been prejudiced by the error unless it could show that the SSA would have made a different award decision but for the alleged error. And in this case, the purported evaluation error had not carried over the source selection decision. The SSA’s decision did not cite or reference the alleged error in the evaluators’ report. In fact, the decision actually considered the experience of both offerors’ corporate families. The SSA reasonably concluded that even considering the offerors’ respective corporate families, Optum’s experience far exceeded other offerors.
The court concluded by noting that even if the supposed evaluation error had carried over to the source selection decision, WellPoint could still not demonstrate that the award decision would have been different. Optum had higher ratings and a clear competitive advantage on other more important technical subfactors. Even if WellPoint had been rated higher on the corporate experience subfactor, it still would not have been in line for award.
WellPoint is represented by Mark Colley, Kara L. Daniels, Michael Edward Samuels, and Nathanial Edward Castellano of Arnold & Porter Kay Scholer LLP. The intervenor-appellee, Optum, is represented by Jason Andrew Carey, Kevin Barnett, Mark Mosier, Kayleigh Scalzo, Evan Ryerson Sherwood and Brooke Stanley. The government is represented by Steven Michael Mager, Joseph H. Hunt, Robert Edward Kirschman, Jr., and Douglas K Mickle of the U.S. Department of Justice.
