Protester Claimed It Was Misled by the Agency’s Changed Definition of “Strength.” Not So, Says COFC.

The protester alleged it had been misled by the agency’s changed definition of a proposal strength. But the COFC found the protester had not been misled. The agency had never objectively defined a strength. Rather, the protester’s argument relied on its own subjective definition of strength. 

Safal Partners LLC v. United States, COFC No. 24-351 

• Protester’s Argument – The solicitation did not define “strength.” Nevertheless, following an initial evaluation, the protester had received nine strengths. But after a corrective action and reevaluation, the protester only received one strength for the same proposal features. The protester argued the agency changed its definition of a strength between evaluations without disclosing this change. This misled the protester into relying on a no longer viable definition of strength. 
• Failure to State a Claim – The intervenor moved to dismiss for failure to state a claim. The protester could have only learned of the alleged definition change from its second debriefing. But, the intervenor argued, no law forbids an agency from misleading an offeror during a debriefing. The court wasn’t persuaded. While no regulation explicitly prohibits an agency from misleading an offeror during a debriefing, lying to or misleading an offeror would be an abuse of discretion. 
• Protester Was Not Misled – While the protester stated a claim, the court rejected the substance of the claim. The solicitation had not defined a strength. Nor did the initial debriefing set forth an objective definition of strength. Rather, the protester had inferred a definition from the strengths it received after the initial evaluation. The agency was not bound by the protester’s subjective inferences about strengths.  The court concluded that the change in the protester’s ratings was not due to a change in the definition of strength. Instead, it was the result of a new evaluation team applying its own judgments in the reevaluation. 

The protester is represented by Adam K. Lasky of Seyfarth Shaw LLP. The intervenor-awardee is represented by Samuel S. Finnerty of Piliero Mazza PLLC. The government is represented by Matthew J. Carhart of the Department of Justice and by Reid MacHarg and Jessica L. Day of the Department of Defense Education Activity. 

–Case summary by Craig LaChance, Editor in Chief 

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