Government Contracts Federal Circuit Adopts Standard for Disparate Evaluation Claims
Tuesday, April 7, 2020

Federal Circuit Adopts Standard for Disparate Evaluation Claims

By Government Contracts Editorial Staff

The Court of Appeals for the Federal Circuit affirmed the denial of a protester's disparate treatment claims because the protester's proposal was substantively distinguishable from the awardees' proposals, and the protester failed to establish that an instance of disparate treatment was prejudicial. The protester contended the government disparately evaluated its proposal for healthcare furniture and related services. The technical capability subfactor in the request for proposals required offerors to address eight key elements and provided the government would evaluate offerors' ability “to meet all services as defined in the [s]tatement of [w]ork.” In assigning the protester's technical proposal an unacceptable rating, the government noted the protester responded to only 6 questions in a 33-question checklist, resulting in score that was 28 points below a passing score. The government further stated that the proposal “lacked detail,” contained “vague info,” and failed to address seven SOW requirements.

“Substantially Indistinguishable” Proposals. Recognizing it had not articulated a standard for evaluating disparate evaluation claims, the Federal Circuit adopted the Court of Federal Claims' standard. Accordingly, a protester must show that the government unreasonably downgraded its proposal for deficiencies that were “substantively indistinguishable” from, or nearly identical to, those contained in other proposals. A protester could also prevail by showing the government inconsistently applied objective solicitation requirements, such as proposal page limits, formatting requirements, or submission deadlines. Further, to prevail, a protester must show that it had a substantial chance of award but for the error. Here, the protester's proposal differed substantively from the awardees' proposals. It did not address hardware and software requirements or whether the proposed staff had the required qualifications, experience, and technical capabilities. Although the government assigned one awardee, but not the protester, points for required information missing in both proposals, the protester was not prejudiced, because its technical score would still have been well below the acceptable threshold for award. (Office Design Group v. U.S., et al., CA-FC, 64 CCF ¶81,867)

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