Background
Massman Construction Co. challenged the U.S. Army Corps of Engineers’ (USACE) award of a contract for the Webbers Falls Tainter Gate Replacement & Repair project to McMillen, Inc. The RFP was issued in July 2025 as a negotiated procurement with five evaluation factors: Past Performance, Management Approach, Performance Capability, Small Business Participation, and Price. Only two proposals were submitted. In September 2025, Amendment No. 5 moved the replacement of Gate 5 from the base contract scope to Option 1, requiring both bidders to revise their pricing. USACE initially awarded the contract to McMillen based on lower price, though technical ratings were close. Massman filed a pre-award protest in December 2025, challenging the Past Performance evaluation, Technical Approach evaluation, the exercise of options at time of award (alleging a violation of FAR 52.217-5), and the Small Business Participation rating.
Before full briefing, USACE requested a remand to take corrective action, proposing to re-award without exercising options. The Court granted the remand, and USACE re-awarded the contract to McMillen again following the partial corrective action. The parties filed cross-motions for judgment on the administrative record.
The Court’s Holding
Judge Lerner issued a split decision on the core evaluation disputes. The Court held that USACE’s Past Performance rating and Technical Approach rating both had a rational basis and therefore survived arbitrary-and-capricious review. Under established procurement law, agencies are not required to “add up” strengths and weaknesses in adjectival ratings; Massman’s greater number of strengths (four to McMillen’s one in the final Past Performance evaluation) did not mandate a higher rating. The Agency’s conclusion that both proposals were “technically equivalent” on Technical Approach also had a rational basis, even though McMillen’s initial weakness regarding capability for large lifts was later addressed through discussion rather than demonstrated past performance. However, the Court found a critical flaw in the Organization subfactor evaluation: Massman and McMillen had proposed substantially identical or “nearly identical” quality-control and organizational approaches—both describing three-phase control systems and similar organizational structures—yet McMillen received a higher rating. The Agency provided no adequate explanation for this disparate treatment despite the proposals being substantively indistinguishable.
The Court also dismissed Count III (challenging the exercise of options) as moot, finding that USACE’s corrective action of re-awarding without exercising options completely eliminated any prejudice from the alleged procedural violation. The partial corrective action met USACE’s burden to demonstrate that it “completely and irrevocably eradicated the effects” of the alleged violation, because both bidders had equal information about Amendment No. 5 and could raise their prices accordingly.
Key Takeaways
- Agencies need not quantify or mechanically sum strengths and weaknesses when assigning adjectival ratings in procurement evaluations, receiving substantial deference in past performance judgments.
- However, when two proposals are substantively identical or nearly identical, an agency must provide a rational explanation for any scoring disparity; it cannot simply assign different ratings without justification.
- Corrective action in a bid protest can moot a claim only if the agency’s action completely eliminates the prejudice to the bidder; the Court will scrutinize whether circumstances truly eliminate any advantage gained by the protested decision.
- Implicit or conclusory explanations in source selection documentation may be insufficient when the record shows proposals are nearly identical on a subfactor—”explicit explanation” becomes necessary when the agency’s path is not “reasonably discernible.”
Why It Matters
This decision reinforces that bid-protest courts will impose an “show your work” requirement on agencies when evaluation disparities are not readily explainable from the record, particularly where proposals are substantially similar. Although the Court deferred to agency discretion on Past Performance and Technical Approach ratings, it drew the line at the Organization evaluation, signaling that agencies cannot treat substantively identical proposals differently without articulation. For contractors, the holding demonstrates that a close numerical count of strengths and weaknesses is not dispositive, but substantive similarity paired with unexplained rating gaps remains actionable. The remand means USACE must either justify McMillen’s higher Organization score or reconsider its award decision, potentially re-evaluating whether McMillen’s lower-priced proposal actually provides best value when technical ratings are adjusted.
The mootness analysis also clarifies the scope of corrective action: agencies can moot bid-protest claims through corrective procedures, but only when those procedures eliminate prejudice across the board. Here, because both bidders knew about the Amendment and could bid accordingly, removing the option-exercise issue removed Massman’s injury-in-fact on that count.