Protester Secures Rare Victory, Convincing COFC Its Proposal Deserved More Strengths and Fewer Weaknesses. How Did the Protester Pull this Off?

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Anyone with experience in bid protests knows that challenging strengths and weaknesses assessed to a proposal is an uphill battle. After all, the assigning of strengths and weaknesses is the ne plus ultra of agency discretion. Any objection to strengths and weaknesses will often just look like disagreement with the agency’s discretionary conclusions. But in this case, the protester convinced the court that many of the weaknesses assessed to its proposal were the result of a disparate evaluation or simply lacked a rational basis.

Thalle Construction Co. Inc. v United States, COFC No. 21-2261

Background

The Army Corps of Engineers posted a solicitation seeking construction of a canal in the Everglades Agricultural Area. The Corps received five proposals, including offers from Thalle Construction and Phillips & Jordan, Inc. The Corps awarded the contract to Phillips. The Corps found that Thalle’s proposal—which received a Marginal technical rating due multiple weaknesses and significant weaknesses—was unawardable. Thalle filed a protest with the Court of Federal Claims, challenging the evaluation.

Legal Analysis

Corps Disparately Evaluated Proposals With Respect to Laboratories

The Corps assessed two significant weaknesses to Thalle for its approach to a testing laboratory. Thalle argued that Phillips’s laboratory approach was similar and should have also received significant weaknesses. The court agreed with Thalle. The Corps had believed Thalle’s approach resulted in unnecessary schedule rsk and had not properly been accounted for in the construction schedule. The court, however, noted that Phillips had basically proposed the same thing as Thalle. If Thalle’s approach merited significant weaknesses, then the Corps should have alse assessed significant weaknesses to Phillips.

Weakness Assessed to Thalle Lacked a Rational Basis

The Corps assessed a weakness to Thalle for failing to provide detail in its approach to overcoming obstacles in the anticipated construction. The court found that this weakness lacked a rational basis. The Corps provided no basis for this weakness other than a conclusory statement  about how Thalle’s approach did not “instill confidence.” This merely restated the evaluation method from the solicitation without any explanation regarding the basis for the weakness. 

Thalle’s Proposal Did Not Contain Conflicting Information

The Corps assessed Thalle’s proposal a weakness due to conflicting information in the proposed schedule narrative and the construction schedule. The court, however, did not find a conflict between the narrative and the schedule. While the Corps contended the narrative and the schedule contained conflicting information concerning blasting and excavation, the court found that the schedule and the narrative were consistent in stating when blasting and excavation would occur.

Thalle Should’ve Received an Additional Strength

The Corps assessed Phillips a strength for its proposed use of a certain type of equipment. Thalle argued that it also proposed to use this type of equipment and thus should have also received a strength The court agreed, finding that the Corps treated Thalle and Phillips unequally when it assigned a strength to Phillips for proposing certain equipment but not to Thalle.

Thalle Was Prejudiced by Evaluation Errors

The Corps had assessed Thalle five significant weaknesses, seven weaknesses, and six strengths. The court found that two of the significant and two of the weaknesses had been assessed arbitrarily, and that Thalle deserved an additional strength. In light of this, it was possible that Thalle could have received an Acceptable technical rating instead of Marginal. With Thalle’s price being significantly lower than Philips, Thalle had a substantial chance winning a best value tradeoff.

Thalle is represented by Jacob W. Scott, Karl F. Dix, and Lochlin B. Samples of Smith Currie & Hancock LLP. The intervenor, Phillips & Jordan, is represented by Robert J. Symon, Patrick R. Quigley, Nathaniel J. Greeson, and Sbah K. Petrov of Bradley Arant Boult Cummings LLP. The government is represented byJoshua A. Mandelbaum of the Department of Justice and Amber R. Jackson of the Army Corps of Engineers.

COFC - Thalle Construction Company