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Selection Was Based on Undisclosed Criteria


A protester's disqualification was arbitrary and capricious and lacked a rational basis, according to the Court of Federal Claims, because the request for applications to provide online outreach courses did not disclose probation status was an eligibility requirement, and the government misapplied the selection criteria by placing undue emphasis on the protester's past performance. The RFA was intended to authorize qualified vendors to be online providers of outreach training courses. The protester, an authorized online provider, challenged the government's decision not to select any of its course applications. The protester contended the government's two-level review screened applications for several eligibility requirements that were not disclosed in the RFA. Comments in the government's briefing book and a reviewer aid document indicated the government determined the protester was ineligible to apply because it was on probation.

Altogether Mysterious

To justify its use of probation status as an eligibility requirement, the government referred to a provision in the RFA's "Applicant Eligibility" section that required applicants to contract with authorized trainers who demonstrated they were in good standing and not on probation. However, throughout the Applicant Eligibility section, applicants were referred to as "organizations," not "trainers," and the requirement clearly and unambiguously applied the good standing criteria to trainers with which an applicant organization contracted, not to the organization itself. In addition, the only mention of past performance in the RFA was a reference in the "Summary" section. Construed in the context of the RFA as a whole, past performance was not an additional, independent selection criterion but would be considered only in the context of the disclosed selection criteria and subcriteria. Given the disclosed role of past performance in the evaluation process, the government placed undue weight on past performance in reviewing the protester's applications. Moreover, the government's evaluation process was undocumented and appeared to be "altogether mysterious." It did not match the process described in the RFA, the Briefing Book, or other evaluation documents. Cancellation of the awards was the most fair and equitable remedy because other applicants' ratings were also arbitrarily changed during undocumented reviews. The court granted a preliminary injunction to give the government the opportunity to take corrective action. ( 360Training.com, Inc. v. U.S., et al., FedCl, 56 CCF 79,868)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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