Case: 19-1337 Document: 70 Page: 1 Filed: 03/06/2020
United States Court of Appeals
for the Federal Circuit
______________________
OFFICE DESIGN GROUP,
Plaintiff-Appellant
v.
UNITED STATES, CUNA SUPPLY, LLC,
Defendants-Appellees
GOVSOLUTIONS, INC.,
Defendant
______________________
2019-1337
______________________
Appeal from the United States Court of Federal Claims
in No. 1:18-cv-01147-RHH, Senior Judge Robert H.
Hodges, Jr.
______________________
Decided: March 6, 2020
______________________
JOSEPH ANTHONY WHITCOMB, Whitcomb, Selinsky, PC,
Denver, CO, argued for plaintiff-appellant. Also repre-
sented by TIMOTHY TURNER.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States. Also
represented by JOSEPH H. HUNT, ROBERT EDWARD
KIRSCHMAN, JR., DOUGLAS K. MICKLE.
Case: 19-1337 Document: 70 Page: 2 Filed: 03/06/2020
2 OFFICE DESIGN GRP. v. UNITED STATES
MATTHEW THOMAS SCHOONOVER, Koprince Law LLC,
Lawrence, KS, for defendant-appellee Cuna Supply, LLC.
______________________
Before LOURIE, REYNA, and HUGHES, Circuit Judges.
REYNA, Circuit Judge.
Office Design Group appeals from an order of the
United States Court of Federal Claims granting judgment
on the administrative record for the government and Cuna
Supply, LLC. Because Office Design Group fails to estab-
lish that the government’s evaluation of its proposal was
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law, we affirm.
I.
On May 5, 2017, the United States Department of Vet-
erans Affairs (“VA”) issued five Requests for Proposals
(“RFP”) for the provision of healthcare furniture and re-
lated services for VA facilities. The five RFPs were essen-
tially identical, except that each related to a separate
geographic region. Each RFP contemplated awarding
three to five contracts for indefinite delivery, indefinite
quantity, with each contract having a five-year base period
and one five-year option period.
The RFP 1 established that the VA would award con-
tracts based on a best-value trade off selection process that
considered three primary evaluation factors: Technical Ca-
pability, Past Performance, and Price. The VA deemed
1 To simplify, this opinion will refer to RFP in the
singular when discussing the RFPs’ requirements and
evaluation criteria.
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OFFICE DESIGN GRP. v. UNITED STATES 3
Technical Capability more important than Past Perfor-
mance, and Past Performance more important than Price.
Central to this appeal is Technical Capability subfac-
tor 3. Subfactor 3 specified that an offeror’s technical pro-
posal must include a narrative “addressing each of the
items listed under SV1, SV2, SV3, and SV4 as defined” in
the Statement of Work (“SOW”). J.A. 128. SV1, SV2, SV3,
and SV4 are codes corresponding to the specific services
and products sought by the RFP. Subfactor 3 also required
an offeror to address eight “key” elements, which included
an offeror’s staffing plan, inventory and cataloging process,
personnel experience and qualifications, and process used
for warranty repairs.
Subfactor 3 also provided that the VA would evaluate
each offeror’s technical volume of its proposal, i.e., its “tech-
nical proposal,” based on the offeror’s ability “to meet all
services as defined in the Statement of Work.” The RFP
noted that an “unacceptable” rating for any technical sub-
factor would result in an overall “unacceptable” technical
proposal. An offeror with an unacceptable Technical Capa-
bility subfactor was ineligible for a contract award.
The RFP also included “Attachment 15,” an evaluation
questionnaire containing thirty-three yes or no questions
regarding the service requirements from the SOW and the
eight key elements listed under subfactor 3. The question-
naire was divided into four sections, each corresponding to
the four SOW sections—SV1, SV2, SV3, SV4. Reproduced
below are the first seven questions of Attachment 15, which
correspond to SV1 of the SOW.
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4 OFFICE DESIGN GRP. v. UNITED STATES
J.A. 166
In an amendment to the RFP, the VA clarified that At-
tachment 15 was to be used by the agency as a checklist to
evaluate offerors’ technical proposals. The amendment pro-
vided that “Attachment 8 Sample Project Tech Evaluation
and Attachment 15 Service Technical Questions are infor-
mational only. They are the checklists that will be used to
evaluate the technical proposals.” J.A. 141 (emphasis
added).
During contract evaluation, the VA assigned an offeror
2 points for each question in Attachment 15 that the offeror
sufficiently addressed in its technical proposal. To receive
a passing score for its technical proposal, an offeror needed
to receive a minimum of 40 points, i.e., a “yes” for twenty
of the thirty-three questions in Attachment 15.
Office Design Group (“ODG”) submitted a proposal for
all five regions. The VA assigned ODG an unacceptable
rating for its technical proposal, rendering ODG’s overall
proposal ineligible for award. The VA noted in its evalua-
tion report that it was only able to locate responses to six
of the thirty-three questions in Attachment 15 in ODG’s
technical proposal, resulting in a failing score of 12 points.
The VA explained that ODG’s technical proposal “lacked
detail” and contained “vague info.” J.A. 120. The VA also
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OFFICE DESIGN GRP. v. UNITED STATES 5
noted that ODG’s technical proposal failed to address the
following seven SOW service requirements: (1) a staffing
plan, (2) information regarding inventory, cataloging, and
protecting VA property information, (3) information about
protecting furniture from damage and loss, (4) information
about executing a warranty, (5) information about provid-
ing AUTOCAD or PDF files, (6) information about its team
members’ experience in the healthcare and federal indus-
tries, and (7) information about whether its personnel had
knowledge about life safety, infection control, and patient
privacy standards.
The VA awarded contracts to nine offerors under each
of the five RFPs. Each of the awardees earned at least
40 points for its technical proposal.
ODG filed a bid protest before the Government
Accountability Office (“GAO”), alleging that the VA
(1) unreasonably and disparately evaluated its technical
proposal in comparison to the awardees’ technical
proposals and (2) improperly relied on Attachment 15 to
evaluate its technical proposal. The GAO denied ODG’s
protest on both grounds. ODG then filed a bid protest
before the Claims Court, alleging the same two grounds. 2
The Claims Court determined that the VA’s use of
Attachment 15 was proper and that ODG had not shown
that the VA’s alleged disparate treatment was prejudicial
error. The Claims Court denied ODG’s motion for
judgment on the administrative record and granted the
government’s and the defendant-intervenor’s cross-motion
for judgment on the administrative record. ODG timely
appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
2 ODG also alleged in the Claims Court that four of
these offerors colluded and provided substantially the
same technical proposal. ODG, however, does not raise the
collusion issue on appeal.
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6 OFFICE DESIGN GRP. v. UNITED STATES
DISCUSSION
We review the grant of a motion for judgment on the
administrative record in a bid protest action de novo. Glenn
Defense Marine (ASIA), PTE Ltd. v. United States,
720 F.3d
901, 907 (Fed. Cir. 2013). In a bid protest case, the inquiry
is whether the agency’s actions were “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law, and if so whether the error is prejudicial.” Id.; see also
Alabama Aircraft Indus., Inc. Birmingham v. United
States,
586 F.3d 1372, 1375 (Fed. Cir. 2009). “The court’s
task is to determine whether ‘(1) the procurement official’s
decision lacked a rational basis; or (2) the procurement pro-
cedure involved a violation of regulation or procedure.’”
Savantage Fin. Servs., Inc. v. United States,
595 F.3d 1282,
1285–86 (Fed. Cir. 2010) (quoting Weeks Marine, Inc. v.
United States,
575 F.3d 1352, 1358 (Fed. Cir. 2009)).
On appeal, ODG raises the same two challenges it
raised before the GAO and the Claims Court. First, ODG
argues that the VA’s reliance on Attachment 15 during the
evaluation process was inconsistent with the terms of the
RFP. Second, ODG argues that the VA disparately evalu-
ated its technical proposal in comparison to those of vari-
ous awardees. We address each argument in turn.
I.
ODG argues that the VA unreasonably strayed from
the terms of the RFP by relying on Attachment 15 to eval-
uate its technical proposal. According to ODG, “the prob-
lem for the VA, is that it never announced . . . that it
planned to use responses to Attachment 15 . . . as the ru-
bric against which proposals were scored and evaluated.”
Appellant’s Br. 13. We reject this argument.
The VA informed all offerors, including ODG, that At-
tachment 15 would be used to evaluate technical proposals.
An amendment to the RFP noted that Attachment 15 was
to be used as a “checklist[]” that “will be used to evaluate
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OFFICE DESIGN GRP. v. UNITED STATES 7
the technical proposals.” J.A. 141. Thus, contrary to
ODG’s contention, the record establishes that the VA pro-
vided clear, reasonable notice that the VA planned to use
Attachment 15 to evaluate proposals.
II.
ODG argues that the VA disparately evaluated its
technical proposal. According to ODG, although its tech-
nical proposal was sufficiently similar to the awardees’ pro-
posals, the VA improperly assigned ODG’s technical
proposal a failing score. ODG provides seven examples of
the VA’s alleged disparate treatment of its technical pro-
posal.
The Federal Acquisition Regulation requires an agency
to treat offerors fairly and impartially.
48 C.F.R. § 1.602–
2(b) (“Contracting officers shall . . . ensure that contractors
receive impartial, fair, and equitable treatment.”). This ob-
ligation necessarily encompasses an agency’s obligation to
fairly and impartially evaluate all proposals. Equal evalu-
ation of proposals, however, does not translate into identi-
cal evaluations. An agency is under no obligation to assign
dissimilar proposals the same evaluation rating.
48 C.F.R.
§ 1.102–2(c)(3) (“All contractors and prospective contrac-
tors shall be treated fairly and impartially but need not be
treated the same.” (emphasis added)).
Upon review, it appears that this court has not yet ar-
ticulated a standard for evaluating disparate evaluation
claims. The Claims Court, however, has done so, having
adjudicated numerous disparate evaluation claims. To
prevail at the Claims Court, a protestor must show that the
agency unreasonably downgraded its proposal for deficien-
cies that were “substantively indistinguishable” or nearly
identical from those contained in other proposals. See En-
hanced Veterans Solutions, Inc. v. United States,
131 Fed.
Cl. 565, 588 (2017); see also Red River Comput. Co. v.
United States,
120 Fed. Cl. 227, 238 (2015); Sci. Applica-
tions Int’l Corp. v. United States,
108 Fed. Cl. 235, 272
Case: 19-1337 Document: 70 Page: 8 Filed: 03/06/2020
8 OFFICE DESIGN GRP. v. UNITED STATES
(2012); Chenega Mgmt., LLC v. United States,
96 Fed. Cl.
556, 585 (2010); Hamilton Sundstrand Power Sys. v.
United States,
75 Fed. Cl. 512, 516 (2007). 3 A protestor
may also prevail by showing that the agency inconsistently
applied objective solicitation requirements between it and
other offerors, such as proposal page limits, formatting re-
quirements, or submission deadlines. See Sci. Applications
Int’l Corp., 108 Fed. Cl. at 272 (citing BayFirst Sols., LLC
v. United States,
102 Fed. Cl. 677 (2012)).
We see no reason to depart from the Claims Court’s
“substantively indistinguishable” standard. If a protestor
meets this threshold, a reviewing court can then compara-
tively and appropriately analyze the agency’s treatment of
proposals without interfering with the agency’s broad dis-
cretion in these matters. See, e.g., COMINT Sys. Corp. v.
United States,
700 F.3d 1377, 1384 (Fed. Cir. 2012). If a
protestor does not, then the court should dismiss the claim.
To allow otherwise would give a court free reign to second-
guess the agency’s discretionary determinations underly-
ing its technical ratings. This is not the court’s role. E.W.
Bliss Co. v. United States,
77 F.3d 445, 440 (Fed. Cir. 1996)
3 Several of the above-cited Claims Court cases ad-
dress disparate evaluation claims in the context of compet-
itive range determinations. An agency may select a
competitive range of proposals that have been more highly
ranked to continue in the competition.
48 C.F.R.
§ 15.306(c)(1). Proposals that have not met the competitive
range threshold are eliminated from the competition.
48
C.F.R. § 15.306(c)(4). We see no relevant difference for pur-
poses of disparate evaluation claims whether the alleged
disparate evaluation occurred at the threshold competitive
range determination or at the ultimate award decision. An
agency is obligated to fairly evaluate proposals at both
stages. See
48 C.F.R. § 1.102–2(c)(3);
48 C.F.R. § 1.602–
2(b).
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OFFICE DESIGN GRP. v. UNITED STATES 9
(noting that the court “will not second guess” the “minutiae
of the procurement process in such matters as technical
ratings . . . , which involve discretionary determinations of
procurement officials”).
The record indicates that ODG’s proposal was substan-
tively distinguishable from other proposals in various re-
spects. 4 The RFP required offerors to provide a description
of their interior designer’s “experience and qualifications
working on healthcare facilities and what hardware and
software that will be used to produce digital and hard copy
drawings.” J.A. 131. Unlike the awardees’ proposals,
ODG’s proposal did not address the hardware and software
requirements. Compare J.A. 94-100, with J.A. 32.
The RFP also required an offeror to describe the “expe-
rience of the installation staff and Interior Design staff” as
well as their “knowledge regarding life safety codes, infec-
tion control standards and patient privacy standards.”
J.A. 131. Unlike the awardees’ proposals, ODG’s proposal
did not address whether its staff had experience with life
safety codes, infection control standards, and patient pri-
vacy standards. Compare J.A. 94-100, with J.A. 25-26, 55,
88.
The RFP required offerors to provide a staffing plan
that included its key personnel’s qualifications and experi-
ence in a healthcare environment. But, as the Claims
Court found, ODG submitted a staffing plan “that could not
be compared to others.” J.A. 7. The Claims Court also
noted that ODG’s proposal said “little of the staff’s qualifi-
cations in healthcare,” and that the comparators’ proposals
were “more responsive and descriptive.”
Id.
The RFP required offerors to describe the “technical ca-
pabilities of staff producing AutoCAD and/or PDF
4 ODG makes no allegation that the VA inconsist-
ently applied objective solicitation requirements.
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10 OFFICE DESIGN GRP. v. UNITED STATES
drawings of the as-built furniture installation.” J.A. 131.
Unlike the awardees’ proposals, ODG did not address
whether its staff will use AutoCAD or PDF to produce
drawings. Compare J.A. 94-100, with J.A. 30, 55, 71, 88.
In light of these substantive differences, ODG cannot
prevail on most of its claims of disparate treatment. ODG,
however, has sufficiently established that the VA dispar-
ately evaluated its technical proposal in two instances.
Both ODG and awardee A. Pomerantz failed to provide a
(1) description of the process of inventory, cataloging and
protecting VA property and (2) description of materials
used and how they are applied to protect VA property dur-
ing installation. The VA assigned 6 points to this awardee
as if it had provided this information yet did not assign
ODG any points.
To prevail, ODG must show that this instance of une-
qual treatment was prejudicial. Glenn Def. Marine (ASIA),
720 F.3d at 907. To establish prejudicial error, a protestor
must show that but for that error, the protestor had a sub-
stantial chance of receiving a contract award. Alfa Laval
Separation, Inc. v. United States,
175 F.3d 1365, 1367 (Fed.
Cir. 1999). De minimis errors in the procurement process
do not justify relief. Grumman Data Sys. Corp. v. Dalton,
88 F.3d 990, 1000 (Fed. Cir. 1996); Lockheed Missiles &
Space Co. v. Bentsen,
4 F.3d 955, 960 (Fed. Cir. 1993). Prej-
udice is a question of fact that we review for clear error.
CliniComp Int’l, Inc. v. United States,
904 F.3d 1353, 1359
(Fed. Cir. 2018).
The Claims Court found that ODG was not prejudiced
by the VA’s disparate treatment. We see no error in this
finding. Even if the VA awarded ODG the additional
6 points it afforded to the awardee, ODG’s technical score
would only increase to 18 points, well below the acceptable
40-point threshold for award.
In sum, many of ODG’s various claims of disparate
treatment amount to a request for this court to reevaluate
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OFFICE DESIGN GRP. v. UNITED STATES 11
its technical proposal and those of the various awardees.
We are in no position to do so. For the few instances in
which the VA did engage in disparate treatment, ODG has
failed to establish that such error was prejudicial.
CONCLUSION
We have considered ODG’s other arguments and find
them unpersuasive. We affirm.
AFFIRMED
COSTS
No costs.
