Case: 19-1337    Document: 70     Page: 1   Filed: 03/06/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                OFFICE DESIGN GROUP,
                   Plaintiff-Appellant

                             v.

       UNITED STATES, CUNA SUPPLY, LLC,
               Defendants-Appellees

                 GOVSOLUTIONS, INC.,
                        Defendant
                  ______________________

                        2019-1337
                  ______________________

    Appeal from the United States Court of Federal Claims
 in No. 1:18-cv-01147-RHH, Senior Judge Robert H.
 Hodges, Jr.
                 ______________________

                  Decided: March 6, 2020
                  ______________________

     JOSEPH ANTHONY WHITCOMB, Whitcomb, Selinsky, PC,
 Denver, CO, argued for plaintiff-appellant. Also repre-
 sented by TIMOTHY TURNER.

     TANYA KOENIG, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for defendant-appellee United States. Also
 represented by JOSEPH H. HUNT, ROBERT EDWARD
 KIRSCHMAN, JR., DOUGLAS K. MICKLE.
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 2                        OFFICE DESIGN GRP. v. UNITED STATES




    MATTHEW THOMAS SCHOONOVER, Koprince Law LLC,
 Lawrence, KS, for defendant-appellee Cuna Supply, LLC.
                 ______________________

     Before LOURIE, REYNA, and HUGHES, Circuit Judges.
 REYNA, Circuit Judge.

     Office Design Group appeals from an order of the
 United States Court of Federal Claims granting judgment
 on the administrative record for the government and Cuna
 Supply, LLC. Because Office Design Group fails to estab-
 lish that the government’s evaluation of its proposal was
 arbitrary, capricious, an abuse of discretion, or otherwise
 not in accordance with law, we affirm.
                             I.
      On May 5, 2017, the United States Department of Vet-
 erans Affairs (“VA”) issued five Requests for Proposals
 (“RFP”) for the provision of healthcare furniture and re-
 lated services for VA facilities. The five RFPs were essen-
 tially identical, except that each related to a separate
 geographic region. Each RFP contemplated awarding
 three to five contracts for indefinite delivery, indefinite
 quantity, with each contract having a five-year base period
 and one five-year option period.
     The RFP 1 established that the VA would award con-
 tracts based on a best-value trade off selection process that
 considered three primary evaluation factors: Technical Ca-
 pability, Past Performance, and Price. The VA deemed




     1  To simplify, this opinion will refer to RFP in the
 singular when discussing the RFPs’ requirements and
 evaluation criteria.
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 OFFICE DESIGN GRP. v. UNITED STATES                            3



 Technical Capability more important than Past Perfor-
 mance, and Past Performance more important than Price.
     Central to this appeal is Technical Capability subfac-
 tor 3. Subfactor 3 specified that an offeror’s technical pro-
 posal must include a narrative “addressing each of the
 items listed under SV1, SV2, SV3, and SV4 as defined” in
 the Statement of Work (“SOW”). J.A. 128. SV1, SV2, SV3,
 and SV4 are codes corresponding to the specific services
 and products sought by the RFP. Subfactor 3 also required
 an offeror to address eight “key” elements, which included
 an offeror’s staffing plan, inventory and cataloging process,
 personnel experience and qualifications, and process used
 for warranty repairs.
      Subfactor 3 also provided that the VA would evaluate
 each offeror’s technical volume of its proposal, i.e., its “tech-
 nical proposal,” based on the offeror’s ability “to meet all
 services as defined in the Statement of Work.” The RFP
 noted that an “unacceptable” rating for any technical sub-
 factor would result in an overall “unacceptable” technical
 proposal. An offeror with an unacceptable Technical Capa-
 bility subfactor was ineligible for a contract award.
     The RFP also included “Attachment 15,” an evaluation
 questionnaire containing thirty-three yes or no questions
 regarding the service requirements from the SOW and the
 eight key elements listed under subfactor 3. The question-
 naire was divided into four sections, each corresponding to
 the four SOW sections—SV1, SV2, SV3, SV4. Reproduced
 below are the first seven questions of Attachment 15, which
 correspond to SV1 of the SOW.
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 4                        OFFICE DESIGN GRP. v. UNITED STATES




 J.A. 166
     In an amendment to the RFP, the VA clarified that At-
 tachment 15 was to be used by the agency as a checklist to
 evaluate offerors’ technical proposals. The amendment pro-
 vided that “Attachment 8 Sample Project Tech Evaluation
 and Attachment 15 Service Technical Questions are infor-
 mational only. They are the checklists that will be used to
 evaluate the technical proposals.” J.A. 141 (emphasis
 added).
     During contract evaluation, the VA assigned an offeror
 2 points for each question in Attachment 15 that the offeror
 sufficiently addressed in its technical proposal. To receive
 a passing score for its technical proposal, an offeror needed
 to receive a minimum of 40 points, i.e., a “yes” for twenty
 of the thirty-three questions in Attachment 15.
      Office Design Group (“ODG”) submitted a proposal for
 all five regions. The VA assigned ODG an unacceptable
 rating for its technical proposal, rendering ODG’s overall
 proposal ineligible for award. The VA noted in its evalua-
 tion report that it was only able to locate responses to six
 of the thirty-three questions in Attachment 15 in ODG’s
 technical proposal, resulting in a failing score of 12 points.
 The VA explained that ODG’s technical proposal “lacked
 detail” and contained “vague info.” J.A. 120. The VA also
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 OFFICE DESIGN GRP. v. UNITED STATES                      5



 noted that ODG’s technical proposal failed to address the
 following seven SOW service requirements: (1) a staffing
 plan, (2) information regarding inventory, cataloging, and
 protecting VA property information, (3) information about
 protecting furniture from damage and loss, (4) information
 about executing a warranty, (5) information about provid-
 ing AUTOCAD or PDF files, (6) information about its team
 members’ experience in the healthcare and federal indus-
 tries, and (7) information about whether its personnel had
 knowledge about life safety, infection control, and patient
 privacy standards.
     The VA awarded contracts to nine offerors under each
 of the five RFPs. Each of the awardees earned at least
 40 points for its technical proposal.
     ODG filed a bid protest before the Government
 Accountability Office (“GAO”), alleging that the VA
 (1) unreasonably and disparately evaluated its technical
 proposal in comparison to the awardees’ technical
 proposals and (2) improperly relied on Attachment 15 to
 evaluate its technical proposal. The GAO denied ODG’s
 protest on both grounds. ODG then filed a bid protest
 before the Claims Court, alleging the same two grounds. 2
 The Claims Court determined that the VA’s use of
 Attachment 15 was proper and that ODG had not shown
 that the VA’s alleged disparate treatment was prejudicial
 error.   The Claims Court denied ODG’s motion for
 judgment on the administrative record and granted the
 government’s and the defendant-intervenor’s cross-motion
 for judgment on the administrative record. ODG timely
 appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(3).



    2    ODG also alleged in the Claims Court that four of
 these offerors colluded and provided substantially the
 same technical proposal. ODG, however, does not raise the
 collusion issue on appeal.
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                          DISCUSSION
     We review the grant of a motion for judgment on the
 administrative record in a bid protest action de novo. Glenn
 Defense Marine (ASIA), PTE Ltd. v. United States, 720 F.3d
 901, 907 (Fed. Cir. 2013). In a bid protest case, the inquiry
 is whether the agency’s actions were “arbitrary, capricious,
 an abuse of discretion, or otherwise not in accordance with
 law, and if so whether the error is prejudicial.” Id.; see also
 Alabama Aircraft Indus., Inc. Birmingham v. United
 States, 586 F.3d 1372, 1375 (Fed. Cir. 2009). “The court’s
 task is to determine whether ‘(1) the procurement official’s
 decision lacked a rational basis; or (2) the procurement pro-
 cedure involved a violation of regulation or procedure.’”
 Savantage Fin. Servs., Inc. v. United States, 595 F.3d 1282,
 1285–86 (Fed. Cir. 2010) (quoting Weeks Marine, Inc. v.
 United States, 575 F.3d 1352, 1358 (Fed. Cir. 2009)).
     On appeal, ODG raises the same two challenges it
 raised before the GAO and the Claims Court. First, ODG
 argues that the VA’s reliance on Attachment 15 during the
 evaluation process was inconsistent with the terms of the
 RFP. Second, ODG argues that the VA disparately evalu-
 ated its technical proposal in comparison to those of vari-
 ous awardees. We address each argument in turn.
                              I.
     ODG argues that the VA unreasonably strayed from
 the terms of the RFP by relying on Attachment 15 to eval-
 uate its technical proposal. According to ODG, “the prob-
 lem for the VA, is that it never announced . . . that it
 planned to use responses to Attachment 15 . . . as the ru-
 bric against which proposals were scored and evaluated.”
 Appellant’s Br. 13. We reject this argument.
     The VA informed all offerors, including ODG, that At-
 tachment 15 would be used to evaluate technical proposals.
 An amendment to the RFP noted that Attachment 15 was
 to be used as a “checklist[]” that “will be used to evaluate
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 OFFICE DESIGN GRP. v. UNITED STATES                          7



 the technical proposals.” J.A. 141. Thus, contrary to
 ODG’s contention, the record establishes that the VA pro-
 vided clear, reasonable notice that the VA planned to use
 Attachment 15 to evaluate proposals.
                              II.
     ODG argues that the VA disparately evaluated its
 technical proposal. According to ODG, although its tech-
 nical proposal was sufficiently similar to the awardees’ pro-
 posals, the VA improperly assigned ODG’s technical
 proposal a failing score. ODG provides seven examples of
 the VA’s alleged disparate treatment of its technical pro-
 posal.
     The Federal Acquisition Regulation requires an agency
 to treat offerors fairly and impartially. 48 C.F.R. § 1.602–
 2(b) (“Contracting officers shall . . . ensure that contractors
 receive impartial, fair, and equitable treatment.”). This ob-
 ligation necessarily encompasses an agency’s obligation to
 fairly and impartially evaluate all proposals. Equal evalu-
 ation of proposals, however, does not translate into identi-
 cal evaluations. An agency is under no obligation to assign
 dissimilar proposals the same evaluation rating. 48 C.F.R.
 § 1.102–2(c)(3) (“All contractors and prospective contrac-
 tors shall be treated fairly and impartially but need not be
 treated the same.” (emphasis added)).
     Upon review, it appears that this court has not yet ar-
 ticulated a standard for evaluating disparate evaluation
 claims. The Claims Court, however, has done so, having
 adjudicated numerous disparate evaluation claims. To
 prevail at the Claims Court, a protestor must show that the
 agency unreasonably downgraded its proposal for deficien-
 cies that were “substantively indistinguishable” or nearly
 identical from those contained in other proposals. See En-
 hanced Veterans Solutions, Inc. v. United States, 131 Fed.
 Cl. 565, 588 (2017); see also Red River Comput. Co. v.
 United States, 120 Fed. Cl. 227, 238 (2015); Sci. Applica-
 tions Int’l Corp. v. United States, 108 Fed. Cl. 235, 272
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 8                        OFFICE DESIGN GRP. v. UNITED STATES




 (2012); Chenega Mgmt., LLC v. United States, 96 Fed. Cl.
 556, 585 (2010); Hamilton Sundstrand Power Sys. v.
 United States, 75 Fed. Cl. 512, 516 (2007). 3 A protestor
 may also prevail by showing that the agency inconsistently
 applied objective solicitation requirements between it and
 other offerors, such as proposal page limits, formatting re-
 quirements, or submission deadlines. See Sci. Applications
 Int’l Corp., 108 Fed. Cl. at 272 (citing BayFirst Sols., LLC
 v. United States, 102 Fed. Cl. 677 (2012)).
     We see no reason to depart from the Claims Court’s
 “substantively indistinguishable” standard. If a protestor
 meets this threshold, a reviewing court can then compara-
 tively and appropriately analyze the agency’s treatment of
 proposals without interfering with the agency’s broad dis-
 cretion in these matters. See, e.g., COMINT Sys. Corp. v.
 United States, 700 F.3d 1377, 1384 (Fed. Cir. 2012). If a
 protestor does not, then the court should dismiss the claim.
 To allow otherwise would give a court free reign to second-
 guess the agency’s discretionary determinations underly-
 ing its technical ratings. This is not the court’s role. E.W.
 Bliss Co. v. United States, 77 F.3d 445, 440 (Fed. Cir. 1996)


     3   Several of the above-cited Claims Court cases ad-
 dress disparate evaluation claims in the context of compet-
 itive range determinations. An agency may select a
 competitive range of proposals that have been more highly
 ranked to continue in the competition. 48 C.F.R.
 § 15.306(c)(1). Proposals that have not met the competitive
 range threshold are eliminated from the competition. 48
 C.F.R. § 15.306(c)(4). We see no relevant difference for pur-
 poses of disparate evaluation claims whether the alleged
 disparate evaluation occurred at the threshold competitive
 range determination or at the ultimate award decision. An
 agency is obligated to fairly evaluate proposals at both
 stages. See 48 C.F.R. § 1.102–2(c)(3); 48 C.F.R. § 1.602–
 2(b).
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 OFFICE DESIGN GRP. v. UNITED STATES                         9



 (noting that the court “will not second guess” the “minutiae
 of the procurement process in such matters as technical
 ratings . . . , which involve discretionary determinations of
 procurement officials”).
     The record indicates that ODG’s proposal was substan-
 tively distinguishable from other proposals in various re-
 spects. 4 The RFP required offerors to provide a description
 of their interior designer’s “experience and qualifications
 working on healthcare facilities and what hardware and
 software that will be used to produce digital and hard copy
 drawings.” J.A. 131. Unlike the awardees’ proposals,
 ODG’s proposal did not address the hardware and software
 requirements. Compare J.A. 94-100, with J.A. 32.
     The RFP also required an offeror to describe the “expe-
 rience of the installation staff and Interior Design staff” as
 well as their “knowledge regarding life safety codes, infec-
 tion control standards and patient privacy standards.”
 J.A. 131. Unlike the awardees’ proposals, ODG’s proposal
 did not address whether its staff had experience with life
 safety codes, infection control standards, and patient pri-
 vacy standards. Compare J.A. 94-100, with J.A. 25-26, 55,
 88.
     The RFP required offerors to provide a staffing plan
 that included its key personnel’s qualifications and experi-
 ence in a healthcare environment. But, as the Claims
 Court found, ODG submitted a staffing plan “that could not
 be compared to others.” J.A. 7. The Claims Court also
 noted that ODG’s proposal said “little of the staff’s qualifi-
 cations in healthcare,” and that the comparators’ proposals
 were “more responsive and descriptive.” Id.
    The RFP required offerors to describe the “technical ca-
 pabilities of staff producing AutoCAD and/or PDF


     4   ODG makes no allegation that the VA inconsist-
 ently applied objective solicitation requirements.
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 10                       OFFICE DESIGN GRP. v. UNITED STATES




 drawings of the as-built furniture installation.” J.A. 131.
 Unlike the awardees’ proposals, ODG did not address
 whether its staff will use AutoCAD or PDF to produce
 drawings. Compare J.A. 94-100, with J.A. 30, 55, 71, 88.
     In light of these substantive differences, ODG cannot
 prevail on most of its claims of disparate treatment. ODG,
 however, has sufficiently established that the VA dispar-
 ately evaluated its technical proposal in two instances.
 Both ODG and awardee A. Pomerantz failed to provide a
 (1) description of the process of inventory, cataloging and
 protecting VA property and (2) description of materials
 used and how they are applied to protect VA property dur-
 ing installation. The VA assigned 6 points to this awardee
 as if it had provided this information yet did not assign
 ODG any points.
     To prevail, ODG must show that this instance of une-
 qual treatment was prejudicial. Glenn Def. Marine (ASIA),
 720 F.3d at 907. To establish prejudicial error, a protestor
 must show that but for that error, the protestor had a sub-
 stantial chance of receiving a contract award. Alfa Laval
 Separation, Inc. v. United States, 175 F.3d 1365, 1367 (Fed.
 Cir. 1999). De minimis errors in the procurement process
 do not justify relief. Grumman Data Sys. Corp. v. Dalton,
 88 F.3d 990, 1000 (Fed. Cir. 1996); Lockheed Missiles &
 Space Co. v. Bentsen, 4 F.3d 955, 960 (Fed. Cir. 1993). Prej-
 udice is a question of fact that we review for clear error.
 CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1359
 (Fed. Cir. 2018).
     The Claims Court found that ODG was not prejudiced
 by the VA’s disparate treatment. We see no error in this
 finding. Even if the VA awarded ODG the additional
 6 points it afforded to the awardee, ODG’s technical score
 would only increase to 18 points, well below the acceptable
 40-point threshold for award.
     In sum, many of ODG’s various claims of disparate
 treatment amount to a request for this court to reevaluate
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 OFFICE DESIGN GRP. v. UNITED STATES                    11



 its technical proposal and those of the various awardees.
 We are in no position to do so. For the few instances in
 which the VA did engage in disparate treatment, ODG has
 failed to establish that such error was prejudicial.
                        CONCLUSION
    We have considered ODG’s other arguments and find
 them unpersuasive. We affirm.

                        AFFIRMED
                           COSTS
     No costs.
