Army Corps Ordered To Award $5M Deal To Col. It Flipped On

Riess LeMieux Partner, Jonathan S. Forester, Secures $5M Federal Bid Protest Win and contract award for client in U.S Court of Federal Claims.

Author: Alyssa Aquino (Law 360)

Law360 (May 23, 2024, 4:57 PM EDT) — The U.S. Court of Federal Claims ordered the U.S. Army Corps of Engineers to award a $5 million diving services deal to a company whose bid it irrationally rejected as unacceptable, despite initially finding the proposal acceptable. 

In a decision dated May 5 and publicly released on Wednesday, Judge Loren Smith found that the Army Corps had walked back its original acceptability rating for Anders Construction Inc.’s proposal based on new technical requirements that it should have, but hadn’t, communicated to the bidder. 

“At bottom, ‘[w]hat we’ve got here is a failure to communicate,'” Judge Smith said, quoting from the movie “Cool Hand Luke.” “If USACE wanted different information — whether it be labeling or be additional documentation — it should have clearly stated such requirements in the solicitation. … Clarity controls our federal government contracts’ system. And in this case, as a matter of law, USACE went beyond the bounds of its discretion when it reversed the proposal’s technical compliance determination.” 

Anders is one of three competitors for an up-to-five-year contract for professional diving services. However, it had been the only one to submit a technically acceptable proposal, according to the decision. 

A rival challenged the Army Corps’ technical evaluations, spurring the agency to reevaluate all three proposals. Despite that, it still rejected all the proposals as unacceptable, including Anders’, finding that it hadn’t submitted documents concerning its proposed record-keeping and lost divers plan, according to the decision. 

In its lawsuit to the claims court, Anders accused the Army Corps of going to “great pains” to avoid awarding it the deal. The claims court sided with Anders, agreeing that it had complied with all the relevant solicitation requirements and submitted all requested documents. 

Judge Smith found that the Army Corps had faulted Anders with failing to submit a lost divers plan, even though the company had provided the sample worksheets and recordkeeping proceedings making up the plan. The company hadn’t labeled the documents as a “lost divers plan,” the judge concluded. If the Army Corps needed the plan to be labeled as such, it should have said so, he added. 

“Mere semantic preferences are not reason enough to kick out a proposal when, as here, those preferences were never communicated to prospective offerors,” the judge said. “[The Army Corps] noncommunication — its gotcha silence — of requirements is never fair; it invites mercurial evaluation.” 

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