Background
The Army Corps of Engineers solicited bids for diving services to maintain waterway infrastructure in Louisiana. The solicitation required offerors to submit a Safe Practices Manual containing specific elements, including a lost-diver plan. Anders Construction submitted a proposal containing a plan for severance of a complete umbilical tether but did not label it as a lost-diver plan or use the key word lost. The Army Corps initially deemed Anders technically acceptable but later re-evaluated the proposal after a competitor requested reconsideration. On the second look, the Corps determined Anders’s proposal was technically unacceptable because it lacked a specific lost-diver plan and an adequate outline of administrative procedures. The Corps issued corrective action by reissuing the solicitation. Anders filed a pre-award bid protest in the Court of Federal Claims, which found the Corps’s rejection arbitrary and enjoined the Corps from awarding the contract to anyone else.
The court’s reasoning
The Federal Circuit held that the Court of Federal Claims erred in finding the Army Corps’s determination arbitrary. The court emphasized that effective contracting demands broad discretion and that technical acceptability evaluations implicitly require subjective judgment. The reviewing court cannot second-guess discretionary determinations. The burden is on the offeror to submit a proposal with adequately detailed information. Anders’s proposal did not reference a lost-diver plan, did not use the key word lost, and the relevant section was buried in over one thousand pages of documentation. The court found it reasonable for the Corps to conclude the severed-umbilical plan was not equivalent to the required lost-diver plan.
What it means going forward
The decision reinforces the strict burden on government contractors to explicitly include all required elements in their proposals and clarifies that courts will not intervene in technical evaluations unless the agency’s decision lacks a rational basis.
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