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)
|