Reed Smith Client Alerts

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.

Auteurs: Lawrence S. Sher Lawrence P. Block Elizabeth Leavy William T. Kirkwood

Background

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.