Joe Whitcomb
REV, LLC, a service-disabled veteran-owned small business, submitted a proposal to the Department of Veterans Affairs (VA) in response to a solicitation for the Transformation Twenty-One Total Technology-Next Generation (T4NG) contract. The T4NG contract, valued at up to $22.3 billion, aimed to procure IT, health IT, and telecommunications solutions. The solicitation involved a two-step evaluation process to replenish the pool of SDVOSB contractors. REV advanced past the first evaluation phase but was excluded in the second phase after receiving a technical rating of "Acceptable," which did not meet the competitive range threshold of "Good" or higher.
The VA had initially intended to award contracts to seven SDVOSBs. In the second phase, 33 offerors remained, with only nine receiving a "Good" or "Outstanding" rating. REV received an "Acceptable" rating and was therefore excluded. REV filed a bid protest with the Government Accountability Office, which was denied. REV then filed suit in the Court of Federal Claims, alleging that several higher-rated offerors should have been disqualified for various reasons, including organizational conflicts of interest and failure to submit required documentation.
Court of Federal Claims dismissed REV's claims for lack of standing
REV challenged both the VA's evaluation of its own proposal and the evaluation of other offerors' proposals. The trial court found REV had standing to contest the evaluation of its own bid but upheld the VA's decisions on the merits. The court concluded that the agency had appropriately reviewed REV's submission and had not acted arbitrarily.
As for REV's claims regarding the evaluation of rival bids and the competitive range determination, the court found REV lacked standing. It reasoned that because REV had already been eliminated from the process before the award decisions were made, any alleged errors in evaluating other proposals could not have prejudiced REV. The court concluded that REV failed to demonstrate how correcting these alleged errors would have improved its own chances of selection.
The court dismissed the case with prejudice and granted judgment to the VA and intervenor-defendants.
Federal Circuit reversed on standing to challenge rival bids
REV appealed the standing ruling to the United States Court of Appeals for the Federal Circuit. The appellate court analyzed the prejudice requirement for standing under the Tucker Act and determined that REV had shown a substantial chance of award if the VA had excluded the six higher-rated offerors REV identified as allegedly non-compliant.
REV had received the tenth or eleventh highest technical rating out of 33, and the VA ultimately awarded contracts to the top nine. If the six contested offerors had been excluded, REV contended it would have ranked within the top four or five. The Federal Circuit accepted this logic, noting that the VA had reserved the right to adjust the number of awards and was seeking to replenish the SDVOSB pool. Given that REV had been deemed "Acceptable" and that several offerors ahead of it may have been improperly rated, the court held REV had a greater than insubstantial chance of receiving an award.
The appellate court found that the competitive range cutoff at "Good" had been set after evaluating all proposals and was not an absolute prerequisite. It observed that the VA's determination was relative, meaning that REV's ranking could have changed if higher-rated offerors were disqualified. The court held that REV had standing to challenge the evaluation of rival proposals and the VA's competitive range determination.
Case remanded for further proceedings
The Federal Circuit reversed the dismissal for lack of standing and remanded the case to the Court of Federal Claims to consider the merits of REV's claims regarding rival offerors and the VA’s competitive range decisions. The court declined to evaluate those claims itself, noting the lower court had not yet ruled on them. It also noted the possibility of supplementing the administrative record on remand.
Help with SDVOSB contract eligibility and bid protests
If you faced denial from a federal SDVOSB contracting pool or believe the evaluation process was flawed, Whitcomb, Selinsky PC handles matters involving SDVOSB eligibility, VA solicitations, and bid protests. Reach out to schedule a consultation and learn how our team can assist with your case.