Anders Construction, Inc. v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDERS CONSTRUCTION, INC.,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2024-2247
______________________
Appeal from the United States Court of Federal Claims
in No. 1:23-cv-00759-LAS, Senior Judge Loren A. Smith.
______________________
Decided: May 12, 2026
______________________
J ONATHAN S. F ORESTER , Riess LeMieux, LLC, New Or-
leans, LA, argued for plaintiff-appellee. Also represented
by CHRISTOPHER K. LEMIEUX .
BRENDAN D AVID J ORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellant.
Also represented by P ATRICIA M. MCCARTHY , D OUGLAS K.
MICKLE, YAAKOV R OTH .
______________________
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ANDERS CONSTRUCTION, INC. v. US 2
Before D YK, CHEN, and STARK, Circuit Judges.
D YK, Circuit Judge.
The government appeals a judgment of the Court of
Federal Claims (“Claims Court”) in a pre-award bid protest
filed by Anders Construction, Inc. (“Anders”). The Claims
Court enjoined the United States Army Corps of Engineers
(“Army Corps”) from awarding a diving-services contract to
anyone but Anders because the Claims Court found that
the government arbitrarily determined that Anders’s pro-
posal was technically unacceptable. We reverse the judg-
ment of the Claims Court, vacate the injunction, and
remand for further proceedings consistent with this opin-
ion.
BACKGROUND
The Army Corps issued a solicitation on July 30, 2021,
for diving services related to maintaining waterway infra-
structure in Louisiana. The solicitation stated that “[f]or a
proposal to result in an awardable contract, the proposal
must meet all Performance Work Statement (PWS) re-
quirements, must include all required information re-
quested in Section L [Instructions, Conditions, and Notice
to Offerors or Respondents], and must conform to all re-
quired terms and conditions.” App’x 4786.1 The solicita-
tion further stated that “[s]ubjective judgment is implicit
throughout” the evaluation of the “acceptability standards
for non-cost factors.” Id. Anders and two other companies
submitted bids. The Army Corps initially determined that
Anders had submitted a technically acceptable bid and that
the two other bidders had not. On January 11, 2022, one
of the other bidders, Specialty Diving of Louisiana, Inc.
(“Specialty”), asked the Army Corps to reconsider
1 Citations to “App’x” refer to the Appendix filed by
the government in this case. Dkt. No. 21.
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ANDERS CONSTRUCTION, INC. v. US 3
Specialty’s proposal, arguing that it met the technical ac-
ceptability criteria.
In response, the Army Corps re-evaluated both An-
ders’s and Specialty’s proposals. On its second look, the
Army Corps again concluded that Specialty’s proposal was
not technically acceptable. The Army Corps found that,
contrary to its earlier decision, Anders’s proposal was also
not technically acceptable because, among other things,
Anders’s proposal failed to include three required technical
elements: a sample completion report from a previous con-
tract documenting the results and findings of a dive, a lost-
diver plan, and an adequate outline of administrative and
record-keeping procedures, the latter two elements being
required components of a “Safe Practices Manual.” Addi-
tionally, the Army Corps notified Anders that it was con-
cerned that Anders’s pricing proposal exceeded
independent government estimates. App’x 6784.
On March 3, 2022, Anders filed a protest with the
Army Corps, arguing that the agency should have deemed
its proposal technically acceptable. On March 21, 2022, the
Army Corps contracting officer notified Anders that the
agency determined it would take corrective action by reis-
suing the solicitation to clarify and remove several solicita-
tion requirements, including some of the technical
elements contested by Anders, and allowing all offerors to
submit revised proposals. On April 19, 2022, the Army
Corps issued Amendment 7, replacing the original solicita-
tion with a revised version that did not require an offeror
to submit a Safe Practices Manual until after it had been
selected as an awardee.
On May 23, 2023, Anders filed a pre-award bid-protest
complaint at the Claims Court, challenging the Army
Corps’s determination that Anders’s original bid was tech-
nically unacceptable, seeking a declaration that Amend-
ment 7 was an improper corrective action, and seeking “an
order directing the [Army Corps] to award the contract
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ANDERS CONSTRUCTION, INC. v. US 4
pursuant to the Solicitation prior to the issuance of Amend-
ment #7.” App’x 59. Anders also alleged that the Army
Corps violated two provisions of the Federal Acquisition
Regulations (“FAR”) by failing to provide the results of an
independent review and by inviting proposals to the
Amendment 7 revised solicitation from previously disqual-
ified bidders.
Anders filed a motion for judgment on the administra-
tive record, and the government filed a cross-motion. On
May 22, 2024, the Claims Court granted Anders’s motion
in relevant part and denied the government’s cross-motion,
finding that Anders had included a compliant completion
report, lost-diver plan, and record-keeping outline, and
that the Army Corps’s rejection of Anders’s proposal for
technical insufficiency was arbitrary.2 On June 17, 2024,
the Claims Court permanently enjoined the Army Corps
“from proceeding with performance of the contract with
any entity other than plaintiff” and from “conducting the
corrective actions described in Solicitation Amendment 7.”
App’x 16.
The government timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
2 The Claims Court found that the Army Corps’s de-
terminations on five solicitation requirements were arbi-
trary. In addition to the three technical issues involved in
this appeal, the Claims Court also determined that the
Army Corps arbitrarily rejected Anders’s proposal on the
grounds that Anders failed to submit a “sample repetitive
dive worksheet” and that Anders did not sufficiently docu-
ment the qualifications of a diving supervisor. App’x 8–12.
The government does not appeal the Claims Court’s con-
clusions as to the dive worksheets or the diving supervisor.
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ANDERS CONSTRUCTION, INC. v. US 5
D ISCUSSION
I
We first consider whether the Claims Court erred in
deciding that it was arbitrary for the Army Corps to con-
clude that Anders’s proposal was not technically acceptable
and that Anders should have been awarded the contract.
The solicitation stated that the Army Corps would
“award [a contract] to the lowest priced offer” that it
“deemed to be technically acceptable.” App’x 4787. We
may set aside the agency’s determination only if it is “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Oak Grove Techs., LLC v. United
States, 116 F.4th 1364, 1374 (Fed. Cir. 2024) (quoting
5 U.S.C. § 706(2)(A)). However, “[e]ffective contracting de-
mands broad discretion.” Lockheed Missiles & Space Co.
v. Bentsen, 4 F.3d 955, 958–59 (Fed. Cir. 1993); accord
DynCorp Int’l, LLC v. United States, 10 F.4th 1300, 1315
(Fed. Cir. 2021). The solicitation expressly indicated that
technical acceptability implicitly requires subjective judg-
ment. A reviewing court may not “second guess” the “dis-
cretionary determinations of procurement officials” with
respect to technical evaluations. E.W. Bliss Co. v. United
States, 77 F.3d 445, 449 (Fed. Cir. 1996). A disappointed
bidder bears a “heavy burden” of showing that a procuring
agency’s decision on technical features lacked a rational
basis. Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1351 (Fed. Cir. 2004) (citation omitted). We
review the Claims Court’s judgment on the administrative
record without deference and thus apply the same stand-
ard of review as the Claims Court. Barnick v. United
States, 591 F.3d 1372, 1377 (Fed. Cir. 2010).
We conclude that the Claims Court erred in concluding
the Army Corps’s technical noncompliance determinations
with respect to the lost-diver plan and the administrative
and record-keeping outline were arbitrary, so we need not
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ANDERS CONSTRUCTION, INC. v. US 6
address the Claims Court’s determination regarding the
sample completion report.
The solicitation required each offeror to submit a copy
of its “Safe Practices Manual . . . includ[ing] the require-
ments stated in Section 30.A.15, items a-k” of the Army
Corp’s Safety and Health Requirements Manual.3
App’x 4784. Item d.5 of this section required “specific pro-
cedures for: . . . Lost diver plan (SCUBA Operations only).”
Addendum 1 (emphasis in original).4 Anders submitted a
“Severance of Complete Umbilical” plan (a plan listing
steps to follow if a diver’s umbilical tether becomes severed)
that it contends is a lost-diver plan, App’x 6859, though it
concedes that “Anders Construction [did] not have a page
individually titled ‘Lost SCUBA Diver Plan,’” App’x 6859.
The Army Corps Source Selection Evaluation Board
(“SSEB”) concluded there was no lost-diver plan in An-
ders’s proposal, noting that he “[did]n’t see [it] in the pro-
posal.” App’x 2150. The contracting officer also
determined that Anders had failed to submit a lost-diver
plan. App’x 2154 (“Item ‘d.5’ . . . [was] not identifiable in
Anders’[s] Volume 1, Technical Evaluation Documenta-
tion, Management Plan proposal.”).
On review, the Claims Court determined that Anders’s
proposal complied with the lost-diver-plan requirement
and that Anders was not required to use any particular la-
bel where none was required by the solicitation. App’x 10.
3 Amendment 7 removes the Safe Practices Manual
as a proposal requirement. But neither party suggests that
Amendment 7 moots this bid protest concerning Anders’s
proposal submitted prior to the issuance of Amendment 7.
4 Citations to the “Addendum” refer to the excerpt of
the Army Corps EM 385-1-1 Safety and Health Require-
ments Manual (Nov. 30, 2014) filed as an addendum to the
Appellant’s Opening Brief. Dkt. No. 12 at 66–67.
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ANDERS CONSTRUCTION, INC. v. US 7
Reasoning that “[m]ere semantic preferences are not rea-
son enough to kick out a proposal when, as here, those pref-
erences were never communicated to prospective offerors,”
the Claims Court concluded that the Army Corps’s rejec-
tion of Anders’s proposal on this ground was arbitrary. Id.
The Claims Court erred in its conclusion. “[T]he bur-
den is on the offeror to submit a well-written proposal with
adequately detailed information that allows for a meaning-
ful review by the procuring agency.” See Mission1st Grp.,
Inc. v. United States, 144 Fed. Cl. 200, 213 (2019) (internal
quotation marks omitted) (collecting cases). Anders’s pro-
posal did not make any reference to a lost-diver plan. In-
deed, it did not even use the key word “lost” in the severed-
umbilical plan, which appeared only on page 465 of a pro-
posal having more than 1,000 pages, of which over 800
pages were identified as the Safe Practices Manual. Under
these circumstances, the Army Corps cannot be faulted for
not treating the severed-umbilical plan as a lost-diver plan.
Anders also did not establish that a severed-umbilical plan
was equivalent to a lost-diver plan.
Nor did the Army Corps apply an unstated evaluation
criterion. “Where an evaluation is challenged, we will ex-
amine the agency’s evaluation to ensure that it was reason-
able and consistent with the evaluation criteria . . . .”
Galen Med. Assocs., Inc. v. United States, 369 F.3d 1324,
1330 (Fed. Cir. 2004) (internal quotation omitted). It is
reasonable and consistent with the explicit lost-diver plan
requirement for the Army Corps to expect an offeror to ex-
plicitly indicate what portions of its proposal it intended to
be responsive to the lost-diver-plan requirement.
We conclude therefore it was not arbitrary and capri-
cious for the Army Corps contracting officer to find that
Anders’s proposal lacked the required lost-diver plan.
As to the “outline of administrative and record-keeping
procedures,” the solicitation required each offeror’s Safe
Practices Manual to include such an outline. App’x 4784;
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ANDERS CONSTRUCTION, INC. v. US 8
Addendum 2. The solicitation also gave the following spe-
cific requirements for record-keeping:
14. Record Keeping[:] A record of all dives
must be kept. An electronic copy of all dive
logs, time logs, Job Hazard Analyses (JHA)
or Job Safety Analyses (JSA) forms, a pre-
dive safety meeting form, and a post-dive
safety meeting form must be submitted to
the [Contracting Officer’s Representative]
and the District Dive Coordinator within
24 hours after the completion of each day’s
dive.
App’x 4766. In this respect, Anders’s proposal stated, “Ad-
ministrative & Record-keeping Procedures[:] The diving
supervisor shall upkeep daily logs, activity logs, dive logs,
and other [required] paperwork. All team members must
sign in an[d] verify dives and daily logs.” App’x 5979.
The SSEB did not record that Anders had submitted a
compliant outline but remarked that “[f]orms and docu-
ments submitted under other requirements satisfy my con-
fidence that this company has organized administrative
and record keeping procedures.” App’x 2151. But the con-
tracting officer determined that “Ander[s]’s technical pro-
posal should be more comprehensive for their ‘outline of
administrative and record-keeping procedures.’”
App’x 2154 (citing Addendum 2).
The Claims Court determined that “Anders includ[ed]
this [administrative and record-keeping] information in its
proposal.” App’x 11. The court concluded that the Army
Corps failed to “substantiate[]” its rejection of Anders’s pro-
posal on this ground and that the Army Corps’s require-
ment for a more “comprehensive” outline was an
undisclosed evaluation criterion. App’x 11.
We do not think it was arbitrary to conclude that An-
ders’s skeletal recitation of the record-keeping
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ANDERS CONSTRUCTION, INC. v. US 9
requirements was an inadequate outline. The only portion
of Anders’s proposal explicitly discussing record-keeping
procedures did little more than repeat the solicitation’s re-
quirements to keep dive logs and time logs in addition to
unspecified “activity logs” and “other [required] paper-
work.” Stating that a “diving supervisor” will “upkeep”
such documents does not amount to an outline. Nor does
requiring the outline to be more comprehensive apply an
unstated evaluation criterion. It is reasonable and con-
sistent with the explicit requirement for an “outline of ad-
ministrative and record-keeping procedures” to require
Anders to propose comprehensive procedures. Addendum
2; see Galen, 369 F.3d at 1330. An agency must have the
latitude to apply its technical expertise in making “discre-
tionary determinations” without explicitly previewing
every possible ground for technical insufficiency. See E.W.
Bliss, 77 F.3d at 449; see also Lockheed Missiles, 4 F.3d
at 958–59 (“Effective contracting demands broad discre-
tion.”).
Anders argues that the contracting officer should have
deferred to the SSEB, which was “the board with the tech-
nical expertise.” Appellee’s Br. 26–27. The contracting of-
ficer overruled the SSEB to determine that Anders’s
proposal failed to submit an adequate record-keeping out-
line. We see no justification for treating contracting offic-
ers, who have the responsibility to determine technical
compliance, as lacking sufficient technical expertise to dif-
fer with the SSEB.
We conclude that it was not arbitrary and capricious
for the Army Corps to determine that Anders’s proposal
lacked the required outline of administrative and record-
keeping procedures and that the Claims Court erred in its
contrary determination.
Because we determine that two grounds support the
Army Corps’s evaluation of Anders’s proposal as techni-
cally unacceptable, and even one such deficiency would
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ANDERS CONSTRUCTION, INC. v. US 10
mean the Claims Court erred, we do not reach the third
ground relating to the lack of a sample “completion report.”
Quite apart from the issue of technical compliance, it
was improper for the Claims Court to direct an award to
Anders without the Army Corps having determined that
Anders’s proposed prices were “fair and reasonable” as re-
quired by the solicitation. App’x 4789. The Claims Court
concluded that the prices were fair and reasonable because
the Army Corps had been willing to pay similar prices in
previous contracts. In the context of appeals from agency
decisions, a “‘reviewing court is not generally empowered
to conduct a de novo inquiry into the matter being reviewed
and to reach its own conclusions based on such an inquiry.’”
CACI, Inc.-Fed. v. United States, 67 F.4th 1145, 1154
(Fed. Cir. 2023) (quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1985)). It was error for the Claims Court
to make a price-reasonability determination when the
Army Corps had made no such determination.
II
Having concluded that the Army Corps properly deter-
mined Anders’s proposal to be technically unacceptable, we
turn to Anders’s two arguments before the Claims Court
that the government violated the FAR. First, Anders al-
leged that the Army Corps failed to provide a substantive
and independent review when it denied Anders’s agency-
level protest, violating FAR § 33.103(d)(4). Second, Anders
alleged that the government’s issuance of Amendment 7 to
the solicitation violated FAR § 15.206(c) by including pre-
viously rejected bidders and violated § 15.206(g)(5) by fail-
ing to adequately describe the changes implemented by the
amendment.
The Claims Court declined to address these arguments
in its opinion granting judgment on the administrative rec-
ord because of its conclusion that Anders’s proposal was
technically acceptable. App’x 8 n.2. The government ar-
gues that we should not reach the merits of these
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ANDERS CONSTRUCTION, INC. v. US 11
arguments. Reply Br. 3 n.1. Anders urges us to reach the
alleged FAR violations or, in the alternative, to direct the
Claims Court to address them. Oral argument at 37:34–
38:10.
Though we question whether the allegations of FAR vi-
olations, even if substantiated, would independently sus-
tain any relief sought by Anders,5 we decline to address the
alleged FAR violations in the first instance and remand for
the Claims Court’s consideration. If the Claims Court de-
termines that neither alleged violation prejudiced Anders
in light of our holding that Anders’s proposal was not tech-
nically acceptable, the Claims Court should grant judg-
ment on the administrative record to the government.
CONCLUSION
We conclude that the Army Corps did not act arbitrar-
ily or capriciously when it evaluated Anders’s proposal to
be technically unacceptable. We reverse the judgment of
the Claims Court, vacate the permanent injunction, and re-
mand for the Claims Court to consider Anders’s arguments
regarding alleged FAR violations.
REVERSED AND REMANDED
COSTS
Costs to the United States.
5 In particular, we do not see how any error in the
issuance of Amendment 7 could benefit Anders since its
claim was that it should have been awarded the contract
under the original solicitation.
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