Background
On December 28, 2016, the VA issued Request for Proposal No. VA791-16-R-0086 (“the Solicitation”) seeking proposals to develop and manage community-based healthcare networks in the VA’s Community Care Network.
This case involves a contract awarded by the United States Department of Veterans Affairs (“VA”) to Optum Public Sector Solutions (“OPSS”) for developing and managing the VA’s program to provide veterans access to community-based healthcare in Region 3 of the VA’s Community Care Network. WellPoint Military Care Corporation (“WellPoint”), an unsuccessful bidder, brought a bid protest action in the Court of Federal Claims (“Claims Court”) challenging the award. The Claims Court found that the VA conducted a reasonable best value determination, denied WellPoint’s request for injunctive relief, and dismissed WellPoint’s bid protest challenge. We affirm.
On May 8, 2019, WellPoint filed a post-award bid protest in the Claims Court seeking declaratory and injunctive relief. As relevant to this appeal, WellPoint argued before the Claims Court (1) that “the VA’s best value determination and trade-off analysis were flawed” because the VA understated WellPoint’s relative cost savings in the Price factor; and (2) that “the VA treated offerors unequally when evaluating the solicitation’s Corporate Experience/Capability Subfactor,” i.e., that the VA gave greater credit to OPSS, the winning bidder, for its overall corporate experience and capability than WellPoint, a losing bidder. J.A. 2.
WellPoint’s first argument (relating to the cost savings calculation) boils down to an assertion that the VA committed a mathematical error. The VA assigned WellPoint’s proposal a cumulative weighted score of 0.24398, meaning that WellPoint’s proposed prices were “about 24.398% less than what the Government expect[ed] to pay.” J.A. 2041. The VA assigned OPSS’s proposal a cumulative weighted score of 0.18968, which translated to prices “about 18.968% less than [what] the Government expect[ed] to pay.”
WellPoint also asserts that the SSA failed to recite the “true magnitude,” i.e., the dollar amount of the cost savings, of each proposal. Appellant’s Br. 40. However, nothing in the Solicitation, the Federal Acquisition Regulation (“FAR”), or the Competition in Contracting Act of 1984, 41 U.S.C. § 3306(c), requires the SSA to recite dollar amounts in an award decision, dollar amounts that were uncertain at the time of contract formation, given the indefinite-delivery, indefinite-quantity nature of the contract. We conclude that the Claims Court correctly found that the “VA’s methodology for evaluating price in connection with this procurement was both reasonable and in accordance with the terms of the Solicitation.” J.A. 20
WellPoint next argues that the VA “treated WellPoint and OPSS disparately” when evaluating their proposals under the Corporate Experience/Capabilities subfactor. Appellant’s Br. 46. FAR § 1.602-2(b) requires SSAs to give “impartial, fair, and equitable treatment” to all government contractors. See Office Design Grp. v. United States, No. 19-1337, slip op. at 7 (Fed. Cir. 2020). This court has recently held that to demonstrate unequal treatment, “a protestor must show that the agency unreasonably downgraded its proposal for deficiencies that were ‘substantively indistinguishable’ or nearly identical [to] those contained in other proposals’” or that “the agency inconsistently applied objective solicitation requirements between it and other offerors.” Id. at 7 (collecting cases)…
Conclusion
The SSA concluded that “[OPSS] . . . and WellPoint each have prior experience managing large healthcare contracts; however, Optum’s breadth, depth and diversity of its corporate experience will provide [the] VA with guidance and expertise to fulfill its mission.” J.A. 2040. The SSA’s decision stated that “[OPSS]’s robust network and extensive corporate experience, . . . far exceed[ed] the other offerors,” and that “[OPSS]’s demonstrated corporate experience represents a clear competitive advantage over . . . WellPoint.” J.A. 2041…
We conclude there has been no showing that the alleged errors in the TET were carried over to the SSA’s decision. Therefore, the Claims Court did not err when it found that “the VA reasonably evaluated the responsive proposals under the Solicitation’s Corporate Experience/Capability Subfactor.” J.A. 19. E Even if the TET’s error had been carried over to the SSA’s decision, WellPoint has not demonstrated that the SSA’s decision would have been different. As noted earlier, the Supreme Court explained in Sanders that the mere possibility of harm is insufficient to rise to the level of prejudicial error. We have held that the appropriate standard is that the bid protestor must allege a “significant error” that affected the award decision. Alfa Laval, 175 F.3d at 1368. WellPoint must show that “but for the error, it would have had a substantial chance of securing the contract.” CliniComp Int’l, Inc. v. United States, 904 F.3d 1353, 1358 (Fed. Cir. 2018).
WellPoint’s challenges to the award were properly rejected by the Claims Court.
