In any legal action, it’s critical to understand the standard that the tribunal applies to a claim. Until now, the Federal Circuit–an intermediate federal appeals court immediately below the U.S. Supreme Court–had not articulated the standard for disparate evaluation claims in bid protests. Though not groundbreaking, a recent case provides clarity for attorneys and litigants alike.

In the underlying procurement, VA wanted to buy some healthcare furniture and related services (surprise, surprise). In relevant part, the RFP required offerors to include a narrative about specific services and products and to address 8 key elements, such as the offeror’s staffing plan, inventory and cataloging process, personnel experience and qualifications, and the warranty repairs process. The RFP included an evaluation questionnaire that contained 23 yes or no questions relating to the requirements in the SOW and the eight key elements. VA alerted offerors that it would use the questionnaire to evaluate proposals, bestowing 2 points for each sufficiently answered question (for a total of 46 total points). To be eligible for consideration, an offeror had to score at least 40 points.

Good to its word, VA evaluated offerors using the evaluation questionnaire. For the protester, VA awarded a whopping 12 points–far less than needed to be eligible for award. Dissatisfied, protester filed a bid protest with GAO, alleging a disparate evaluation (essentially that its proposal was held to a higher standard than other proposals). GAO denied it. Undeterred, protester took its protest to the next level at the Court of Federal Claims. There, too, the Court denied the protest. Apparently a fighter, the protester appealed to the Federal Circuit in Office Design Group v. United States, No. 2019-1337 (Fed. Cir. Mar. 6, 2020).

In its opinion, the Court remarked that it had never articulated the standard for analyzing disparate evaluation claims. But in the spirit of “if it ain’t broke, don’t fix it” the Federal Circuit essentially adopted the standard that the COFC uses. Under that standard, “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.” The Court dubbed it the “substantively indistinguishable” standard.

The Court further explained that “[i]f a protester meets this threshold, a reviewing court can then comparatively and appropriately analyze the agency’s treatment of proposals without interfering with the agency’s broad discretion in these matters.” And if a protester cannot meet the standard, then the court should dismiss the claim. “To allow otherwise,” the Court expounded, “would give a court free reign to second-guess the agency’s discretionary determinations underlying its technical ratings.” Simply put, “[t]his is not the court’s role.”

So what happened? The Court was no more receptive to the protester’s argument than GAO or COFC. The Court found several instances in which the protester’s proposal was substantively distinguishable from other proposals. Unlike other proposals, protester’s proposal did not address: (1) the RFP’s hardware and software requirements; (2) it’s staff’s experience with life safety codes, infection control standards, and patient privacy standards; (3) it’s staff qualifications in healthcare; and (4) whether its staff would use AutoCAD or PDF to produce drawings.

The Court did, however, find that VA disparately evaluated protester’s claim on 2 accounts. But because these 2 errors didn’t cause protester any prejudice–i.e., the additional points wouldn’t have raised protester’s score above the 40-point threshold to be eligible for award–the Court affirmed the COFC’s decision.

If you think that an agency treated your proposal differently than another offeror’s, remember the substantively indistinguishable standard. To succeed, you’ll have to show the Court that the agency penalized your proposal for deficiencies that other proposals also exhibited. While this can be can be a difficult undertaking, it’s not an impossible one.

[Editor’s Note : Koprince Law LLC represented Cuna Supply in this matter. It’s not our regular practice to write about cases in which we were involved; we’ve done so here given the broad interest in this topic and how rarely the Federal Circuit has ruled on it.]

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