The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Office Design Group v. United States, --- F.3d ---- (2020), 2020 WL 1070028 (March 6, 2020), recently adopted a highly deferential standard for its review of bid protests that allege their company was disparately evaluated by the procuring agency. The Federal Circuit adopted, as its own, the U.S. Court of Federal Claims’ “substantially indistinguishable” standard which requires the protester affirmatively to demonstrate that the agency unreasonably downgraded its proposal for deficiencies that were “substantively indistinguishable” from, or nearly identical to, those contained in the other offerors’ proposals.
Office Design Group (ODG) protested the evaluation and award issued by the United States Department of Veterans Affairs (VA) on a series of five requests for proposal (RFPs) for the provision of healthcare furniture and related services for VA facilities. ODG submitted proposals for each RFP, but the VA gave ODG an unacceptable rating on its technical proposal, which made ODG ineligible for award. The VA arrived at ODG’s unacceptable rating by scoring each offeror’s technical proposals using an evaluation questionnaire, which was included as an attachment to the RFP.
ODG alleged that the VA disparately evaluated its proposal. ODG’s Government Accountability Office (GAO) and Court of Federal Claims (COFC) protests were unsuccessful and ODG ultimately appealed to the Federal Circuit.
Federal Circuit holding
In rejecting ODG’s protest argument that the VA had evaluated ODG’s proposal disparately from other offerors, the Federal Circuit acknowledged that the Court had not yet articulated a standard against which it would evaluate a protester’s claims of disparate evaluation by an agency. The Federal Circuit noted its own lack of precedent on this protest ground, but determined that the COFC has articulated a deferential standard of review for protest arguments involving claims of disparate evaluation, and which the Federal Circuit decided to adopt as its own. Specifically, the COFC’s standard is that, in order to prevail on a claim of disparate evaluation, “a protester must show that the agency unreasonably downgraded its proposal for deficiencies that were “substantively indistinguishable” or nearly identical from those contained in other proposals.” Office Design Group at 7. Additionally, the Federal Circuit observed that the COFC standard permitted a protester to “also prevail by showing that the agency inconsistently applied objective solicitation requirements between it and other offerors, such as proposal page limits, formatting requirements, or submission deadlines.” Id.
Thus, in order for a protester to prevail on a disparate evaluation claim, the protester must demonstrate that the alleged weaknesses or deficiencies it received were effectively the same flaws present in a competitor’s proposals, but that one or more other offerors were not similarly downgraded or negatively rated as a result. The Court explained that it was adopting this deferential standard to allow it to “comparatively and appropriately analyze the agency’s treatment of proposals without interfering with the agency’s broad discretion in these matters.” Id. Not surprisingly, the COFC’s holdings indicate that it is more difficult to succeed on a claim of disparate evaluation where the disputed evaluation involves subjective criteria where the agency is afforded great discretion. See, e.g., Science Applications Intern. Corp. v. U.S., 108 Fed. Cl. 235 (2012) (protester sought to compare ratings that “emanate from subjective matters of substantial discretion and deference” versus the “unequal application of objective criteria such as size, resume requirements, submission deadlines, format, and the like”). Accordingly, the COFC has held that disparate assignment of strengths based on, for example, resumes that meet objective experience requirements, is improper, BayFirst Solutions, LLC v. U.S., 102 Fed. Cl. 677 (2012), but has hesitated to second-guess evaluators in matters involving agency discretion, such as in the subjective evaluation of dissimilar features of training and management plans. See, e.g., Enhanced Veterans Solutions, Inc. v. United States, 131 Fed.Cl. 565 (2017); Science Applications Intern. Corp., 108 Fed. Cl. at 273.
Consequently, protesters can improve their odds of success on disparate evaluation claims involving “subjective matters of substantial discretion and deference,” by providing the COFC with clear examples explaining how the agency’s evaluation of their proposal was objectively disparate compared to its evaluation of their competitors’ proposals. See, e.g., Red River Computer Co., Inc. v. United States, 120 Fed. Cl. 227 (2015) (allegation of disparate evaluation of past performance is insufficient where not accompanied by clear examples of the same work rated differently).