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 represented by TIMOTHY TURNER. 

 TANYA KOENIG, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, 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 establish 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 Veterans Affairs (“VA”) issued five Requests for Proposals 

(“RFP”) for the provision of healthcare furniture and related services for VA facilities. The five RFPs were essentially 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 RFP1 established that the VA would award contracts based on a best-value trade off selection process that 

considered three primary evaluation factors: Technical Capability, 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 Performance, and Past Performance more important than Price. 

Central to this appeal is Technical Capability subfactor 3. Subfactor 3 specified that an offeror’s technical proposal 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 “technical 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 subfactor would result in an overall “unacceptable” technical 

proposal. An offeror with an unacceptable Technical Capability 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 questionnaire 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 Attachment 15 was to be used by the agency as a checklist to 

evaluate offerors’ technical proposals. The amendment provided that “Attachment 8 Sample Project Tech Evaluation 

and Attachment 15 Service Technical Questions are informational 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 evaluation 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 providing AUTOCAD or PDF files, (6) information about its team 

members’ experience in the healthcare and federal industries, 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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6 OFFICE DESIGN GRP. v. UNITED STATES

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 procedure 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 evaluated its technical proposal in comparison to those of various 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 evaluate its technical proposal. According to ODG, “the problem for the VA, is that it never announced . . . that it 

planned to use responses to Attachment 15 . . . as the rubric against which proposals were scored and evaluated.” 

Appellant’s Br. 13. We reject this argument. 

The VA informed all offerors, including ODG, that Attachment 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 provided 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 technical proposal was sufficiently similar to the awardees’ proposals, 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 proposal. 

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 obligation necessarily encompasses an agency’s obligation to 

fairly and impartially evaluate all proposals. Equal evaluation of proposals, however, does not translate into identical 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 contractors 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 articulated 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 deficiencies that were “substantively indistinguishable” or nearly 

identical from those contained in other proposals. See Enhanced 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. Applications 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 requirements, 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 comparatively and appropriately analyze the agency’s treatment of 

proposals without interfering with the agency’s broad discretion 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 secondguess the agency’s discretionary determinations underlying 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 address disparate evaluation claims in the context of competitive 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 purposes 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 substantively distinguishable from other proposals in various respects.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 “experience of the installation staff and Interior Design staff” as 

well as their “knowledge regarding life safety codes, infection 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 privacy 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 experience 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 qualifications in healthcare,” and that the comparators’ proposals

were “more responsive and descriptive.” Id.

The RFP required offerors to describe the “technical capabilities of staff producing AutoCAD and/or PDF 

4 ODG makes no allegation that the VA inconsistently 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 disparately 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 during 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 unequal 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 substantial 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). Prejudice 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.

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