Background
Anders Construction challenged the Army Corps of Engineers’ reevaluation of proposals for a small-business set-aside contract for professional diving services in New Orleans. After initially finding Anders the only technically acceptable offeror, the Corps reevaluated all proposals following a competitor’s request for reconsideration, found all three offerors technically unacceptable, and allowed revised proposals.
In 2024, the Court of Federal Claims ruled for Anders and later entered a permanent injunction. The Federal Circuit reversed in 2026, holding that the Corps reasonably found Anders’ proposal technically deficient, and remanded for resolution of Anders’ separate claims that the Corps violated several FAR provisions.
The Court’s Holding
The court denied Anders’ motion for judgment on the administrative record and granted the government’s cross-motion. Amendment 7’s statement that it replaced the prior solicitation and amendments sufficiently described its principal change for purposes of FAR 15.206(g)(5); in any event, Anders did not show prejudice from the assertedly inadequate description. The court also found Amendment 10’s more detailed description compliant.
The court further held that FAR 15.206(c) did not bar the Corps from distributing a revised solicitation to previously unsuccessful offerors, particularly where all proposals had been found technically unacceptable. Nor did the Corps violate FAR 33.103(d)(4): the independent reviewer made a formal determination that Anders’ agency protest was academic because its GAO protest raised identical issues and sought identical relief. Anders showed no prejudice from any alleged procedural error and therefore could not obtain injunctive relief.
Key Takeaways
- A bid protester must establish prejudice—a substantial chance of award absent the error—even when alleging a FAR violation.
- FAR 15.206(c) does not prohibit an agency from reopening competition through a revised solicitation when prior proposals are technically unacceptable.
- FAR 33.103(d)(4) provides for an independent protest review but does not prescribe a quasi-judicial written decision or substantive findings.
Why It Matters
The decision underscores that procedural procurement challenges will not support relief without a concrete connection to the protester’s prospect of award. Here, the Federal Circuit’s prior determination that Anders’ original proposal was technically unacceptable foreclosed the required showing of competitive prejudice.
It also preserves agency flexibility to amend or replace a solicitation to restore competition after finding proposals unacceptable, rather than limiting the agency to an award—or no award—based on a deficient field.