Alert
02.16.24
In REV, LLC v. United States, a veteran-owned small business appealed a Court of Federal Claims (COFC) decision that the protester lacked standing to challenge the evaluation of multiple awardees, after being excluded from the competition after Phase 1 of a two-phase qualifying process under the Department of Veteran Affairs (VA) Twenty-One Total Technology-Next Generation (T4NG) multi-award Indefinite Delivery, Indefinite Quantity (IDIQ) on-ramp procurement. On January 29, 2024, the Federal Circuit reversed the COFC decision.
At COFC, the protester, REV, challenged the VA’s evaluation of both its proposal as well as that of six of the awardees who had advanced to Phase 2. Regarding the challenge to the VA’s evaluation of its own proposal, COFC ruled that the VA’s evaluation was neither arbitrary nor capricious. The protester also alleged that six of the awardees’ proposals should have been removed from the competition and, but for the flawed evaluation, REV’s proposal would have advanced to Phase 2 and had a substantial chance for an award. COFC, however, found that REV was not an interested party to challenge the awardees’ evaluations because the VA’s award decisions occurred after REV had been eliminated from the competition and that the “agency’s actions subsequent to [REV’s] elimination from the competition” could not have prejudiced the protester. REV appealed COFC’s decision on standing to the Federal Circuit.
The Federal Circuit reversed and remanded the COFC decision and determined that REV did have standing to challenge the evaluations of the awardees’ proposals. After considering REV’s challenges, the Federal Circuit determined that when assessing whether a party has standing, COFC was required to assume that the protester will prevail on the merits of its protest grounds. Because REV alleged that its proposal ranked 10th or 11th out of 33 total bidders in the Phase 1 competition, and that six of the nine offerors in Phase 2 should have been removed from the Phase 2 competition, had COFC presumed these arguments to be successful, it would have resulted in only three offerors remaining in competition in Phase 2—which was not enough to replenish the small business pool for the T4NG contract (i.e., the purpose of the on-ramp procurement). Thus, if REV’s protest was successful, REV’s proposal would have been ranked 4th or 5th among the remaining offerors and reasonably would have had a substantial chance for award—because all offerors that advanced to Phase 2 were selected for award. Thus, the Federal Circuit found that, if all claims were assumed to be successful, REV had demonstrated that it was an interested party in the matter because it was a “prospective bidder whose direct economic interest would be affected by the award of the contract.”
The Federal Circuit’s decision stands in stark contrast to the recent Government Accountability Office (GAO) decision in Systems Plus, Inc. et al., B-4199956.184 et al., where GAO found that the protesters, who were similarly removed from the competition after Phase 1, were not interested parties to protest the evaluation of the proposals in the later phases of the competition.
In sum, the Federal Circuit’s decision in REV, LLC illustrates that disappointed bidders who have been excluded from the competitive range can establish standing at COFC to challenge the evaluation of other offerors’ proposals in later phases of the competition. Therefore, COFC may provide disappointed offerors with more flexibility than GAO to protest their removal from the competitive range.