Rev, LLC v. United States, Aptive Resources, LLC

United States Court of Appeals
for the Federal Circuit
______________________
REV, LLC,
Plaintiff-Appellant
v.
UNITED STATES, APTIVE RESOURCES, LLC,
Defendants-Appellees
DECISIVE POINT CONSULTING GROUP, LLC,
Defendant
______________________
2022-1759
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01011-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: January 29, 2024
______________________
T HOMAS SAUNDERS , Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, DC, argued for plaintiff-appellant.
Also represented by J ON D AVIDSON L EVIN, Maynard Nex-
sen PC, Huntsville, AL.
ERIC J OHN S INGLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for all defendant-appellee United
States. Also represented by REGINALD T HOMAS BLADES ,
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REV, LLC v. US 2
J R., MICHAEL G RANSTON, P ATRICIA M. MCC ARTHY .
J OHN P RAIRIE , Wiley Rein, LLP, Washington, DC, for
defendant-appellee Aptive Resources, LLC. Also repre-
sented by J ENNIFER E VE RETENER , CARA L YN SIZEMORE .
______________________
Before REYNA, T ARANTO, and STARK, Circuit Judges.
STARK, Circuit Judge.
REV, LLC (“REV”) is a veteran-owned small business
that provides software consulting services to private and
public entities. In response to a solicitation (“Solicitation”)
by the Department of Veterans Affairs (“VA”), REV partic-
ipated in a bid process in hopes of joining the vendor pool
for the VA’s Transformation Twenty-One Total Technol-
ogy-Next Generation (“T4NG”) program. To determine
who to add to its vendor pool, the VA conducted a two-step
evaluation of the bids it received. While REV was among
the successful participants in the first step, REV was elim-
inated at the second stage, never making it to the compet-
itive range from which awardees were ultimately selected.
REV filed suit against the VA in the Court of Federal
Claims. Several winning bidders intervened and also be-
came defendants. The Court of Federal Claims granted the
motions of the VA and the intervenor-defendants for judg-
ment on the administrative record. In doing so, the trial
court rejected on the merits REV’s critiques of the VA’s
evaluation of the strength of REV’s own proposal. The
court then dismissed for lack of standing REV’s challenges
to the VA’s evaluation of rival bidders’ submissions and the
VA’s establishment of the competitive range.
REV now appeals only the portion of the judgment
based on its lack of standing. We agree with REV that be-
cause REV showed it had a greater than an insubstantial
chance of securing an award had certain awardees been ex-
cluded from the bid process, which REV alleged they
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REV, LLC v. US 3
should have been, it has standing. We reverse this portion
of the judgment and remand for the Court of Federal
Claims to address the merits of REV’s claims attacking the
VA’s assessment of competing bids and its establishment
of the competitive range.
I
A
According to the VA’s Solicitation, “T4NG is a Multi-
Agency, Indefinite Delivery/Indefinite Quantity (IDIQ),
Multiple Award Task Order contract with a base ordering
period of five years with one five-year option period.” J.A.
2055. “The program has a ceiling of $22.3B and supports
Contractor-provided solutions of Information Technology
(IT), health IT, and telecommunications, to include services
and incidental hardware/software for customer require-
ments that vary across the entire spectrum of existing and
future technical environments.” Id.
As the Solicitation explained, the VA intended to eval-
uate the offerors1 who submitted bids in two phases. In the
first phase, referred to as “Step One,” all offerors were re-
quired to submit certain deliverables for a sample task
aptly named “Sample Task 1.” J.A. 2431; see also J.A. 2502
(describing Sample Task 1). To be eligible at Step One,
“[o]fferors must [have been] verified in the Vendor Infor-
mation Pages (VIP) Database as a [Service-Disabled Vet-
eran Owned Small Business] SDVOSB and qualify as a
small business . . . at the time of Step One Price Volume
submission.” J.A. 2431. After evaluating the submissions
for Sample Task 1, the VA would establish a first competi-
tive range and select the most highly rated offerors to pro-
ceed to the next phase, “Step Two.” Id.
1 Throughout this opinion we use the terms “offe-
rors” and “bidders” interchangeably.
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REV, LLC v. US 4
At Step Two, the remaining offerors were given an-
other sample task, “Sample Task 2.” J.A. 2432. As in Step
One, “[e]ligible Offerors must [have] be[en] verified in the
VIP Database at the time of [their] Step Two proposal sub-
mission;” the VA would not “evaluate Step Two proposal
submissions from ineligible Offerors.” Id. The Solicitation
explained that following the evaluation of Step Two sub-
missions, the VA would establish another competitive
range before selecting the awardees. It also specifically ad-
vised that “if the Contracting Officer determined that the
number of proposals that would otherwise be included in
any competitive range exceeds the number at which an ef-
ficient competition can be conducted, the Contracting Of-
ficer may limit the number of proposals in the competitive
range to the greatest number that will permit an efficient
competition among the most highly rated proposals.” Id.
The VA intended to “on-ramp seven (7) SDVOSBs to
replenish the pool of SDVOSB[s],” although the VA also ex-
pressly “reserve[d] the right to make additional awards or
fewer awards if doing so is deemed to be in the best interest
of the Government.” J.A. 2194; see also J.A. 2431. Award
decisions were to be “based on the best overall (i.e., best
value) proposals that are determined to be the most bene-
ficial to the Government, with appropriate consideration
given” to five factors: Technical, Past Performance, Veter-
ans Employment, Small Business Participation Commit-
ment Factor (“SBPC”), and Price. J.A. 2431. While all of
these factors would be considered, the VA was explicit that
“[t]he Technical Factor is significantly more important
than” the other factors. Id. Ratings on the Technical Fac-
tor were based on the Sample Task 1 (“ST1”) sub-factor,
Sample Task 2 (“ST2”) sub-factor, and Management sub-
factor, with “[t]he Sample Task Sub-factor[s] [being] signif-
icantly more important than the Management Sub-factor.”
Id.
“To receive consideration for award,” the Solicitation
continued, “a rating of no less than ‘Acceptable’ must be
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REV, LLC v. US 5
achieved for the Technical Factor, all Technical Sub-Fac-
tors, and the SBPC Factor.” J.A. 2432. The Solicitation
defined an “Acceptable” rating as “[a] proposal that meets
all of the Government’s requirements, contains at least
minimal detail, demonstrates at least a minimal under-
standing of the problems, and is at least minimally feasible
(moderate to high degree of risk).” J.A. 3781. Other possi-
ble ratings were “Outstanding,” “Good,” “Susceptible to Be-
ing Made Acceptable,” and “Unacceptable.” Id.
B
Consistent with the Solicitation, the VA made the first
competitive range determination after reviewing offerors’
submissions for Sample Task 1. A total of 33 offerors, in-
cluding REV and defendants-intervenors Aptive Re-
sources, LLC (“Aptive”) and Decisive Point Consulting
Group, LLC (“Decisive Point”), were part of the first com-
petitive range and proceeded to Step Two. After the VA
evaluated the submissions for Sample Task 2, all 33 re-
maining offerors were given an overall technical rating.
Twenty-four offerors, including REV, received an “Accepta-
ble” rating, eight offerors received a “Good” rating, and one
offeror received an “Outstanding” rating. The following
chart shows, in the left-hand column, the overall technical
ratings received by the 33 offerors in the first competitive
range, as well as the sub-factor ratings, in the adjoining
columns. REV is offeror 50. We have added outlining
around its ratings for ease of reference.
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REV, LLC v. US 6
J.A. 9060 (outlining added).
After assigning these ratings, the VA established a sec-
ond competitive range, setting the threshold technical rat-
ing for inclusion in that range at “Good.” Consequently,
the second competitive range included only the nine offe-
rors that had received an overall technical rating of “Good”
or “Outstanding.” REV, which had received only an “Ac-
ceptable” technical rating, was excluded.
REV protested its exclusion from the second competi-
tive range to the Government Accountability Office
(“GAO”). The GAO denied the protest. Several days later,
the VA’s source selection authority selected for award all
nine of the offerors that had been included in the second
competitive range. J.A. 9.
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REV, LLC v. US 7
REV then filed its bid protest in the Court of Federal
Claims. Aptive and Decisive Point intervened as defend-
ants.
In its bid protest, REV contended it was the tenth or
eleventh highest rated bidder and that several bidders
ranked higher than it should not have been. In REV’s view,
then, a fair process would have resulted in REV being
among the top seven bidders and, therefore, ultimately se-
lected to be part of the award pool. More particularly, REV
argued to the trial court that the VA’s evaluation process
had been arbitrary and capricious because the VA had: (1)
failed to consider whether two offerors were ineligible for
award due to an immitigable organizational conflict of in-
terest, (2) failed to consider offerors’ conformance with the
Solicitation’s requirements, (3) conducted a faulty past per-
formance evaluation, (4) failed to evaluate proposals
equally, (5) failed to give REV’s proposal a fair reading, and
(6) made a flawed competitive range determination.
For ease of analysis, the Court of Federal Claims orga-
nized REV’s claims into two categories, addressing them in
turn. First, the court considered REV’s challenges to the
VA’s evaluation of REV’s own bid and its complaint that it
had received disparate treatment during the evaluation
process. With respect to these issues, the Court of Federal
Claims found that REV had standing but further held, on
the merits, that the VA’s evaluation of REV’s proposal was
neither arbitrary nor capricious. Specifically, the trial
court found that the VA had “[a]ppropriately [e]valuated
the [o]fferors’ [p]ast [p]erformance,” “[a]pplied the [e]valu-
ation [c]riteria [e]quitably,” and “[r]easonably [r]eviewed
[REV’s] proposal.” J.A. 15-17.
Next, the court addressed REV’s remaining claims,
which it characterized as challenging “the agency’s actions
subsequent to [REV’s] elimination” from the process at the
second competitive stage. J.A. 19. These included REV’s
allegations that certain awardees, including Aptive and
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REV, LLC v. US 8
Decisive Point, should have been eliminated from the bid
process on the grounds that (1) “Aptive made substantive
revisions to its Sample Task 1 proposal in response to
Amendment 1 ‘that the Solicitation prohibited,’” (2) “Aptive
[and four other awardees] failed to submit [their] required
[contractor teaming agreements] (CTAs) as part of its man-
agement proposal,” (3) in establishing the second competi-
tive range, the VA “neither gave meaningful consideration
to all evaluation criteria nor had any reason to conduct dis-
cussions,” and (4) Aptive and Decisive Point had immitiga-
ble organizational conflicts of interest. J.A. 19-22. The
Court of Federal Claims did not decide these contentions
on the merits because it found REV lacked standing to as-
sert them, as REV could not establish it had been preju-
diced by any deficiencies that may have plagued the
process after REV’s own bid had already been eliminated.
Observing that “the VA’s evaluation of the [rival] pro-
posals, whether inappropriately revised or missing re-
quired components, did not affect the VA’s evaluation of
plaintiff’s proposal,” the court concluded that the “agency’s
actions subsequent to [REV’s] elimination from the compe-
tition” could not have prejudiced REV. J.A. 19-20.
The Court of Federal Claims added that REV “ha[d]
neither explained how – nor pointed to any record evidence
that – a change in the VA’s evaluation of Aptive’s proposal
would have changed how the VA viewed [REV’s] proposal.”
J.A. 20. According to the trial court, REV “[s]imply stating
that its proposal ‘was either next in line for admission to
the competitive range or the second company in line,’ is in-
sufficient under the multi-award circumstances here” be-
cause “there was no guaranteed number of awards, and the
exclusion of one offeror from the competitive range did not
necessarily ensure the inclusion of another.” J.A. 20.
Thus, the court concluded, “regardless of the VA’s evalua-
tion of the other proposals, plaintiff cannot establish prej-
udice sufficient to confer standing, and its claim on this
point must fail.” Id. Accordingly, the Court of Federal
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REV, LLC v. US 9
Claims granted the defendants’ motions for judgment on
the administrative record, denied REV’s cross-motion for
judgment, and dismissed REV’s suit with prejudice.
REV timely appealed, challenging only the portion of
the trial court’s judgment for which the court had held REV
lacked standing. Defendant Decisive Point declined to par-
ticipate in the appeal. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
II
We review the Court of Federal Claims grant of judg-
ment on the administrative record without deference. See
Info. Tech. & Applications Corp. v. United States, 316 F.3d
1312, 1318 (Fed. Cir. 2003). We review determinations of
standing under the Tucker Act de novo. See SEKRI, Inc. v.
United States, 34 F.4th 1063, 1070 (Fed. Cir. 2022). How-
ever, underlying factual findings, including prejudice, are
reviewed for clear error. See CliniComp Int’l, Inc. v. United
States, 904 F.3d 1353, 1357-59 (Fed. Cir. 2018). In post-
award bid protests, we review agency actions according to
the standard of review set out in the Administrative Proce-
dure Act (“APA”), 5 U.S.C. § 706. See 28 U.S.C.
§ 1491(b)(4). The APA directs a reviewing court to hold un-
lawful and set aside agency action found to be “arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law” as well as action taken “without ob-
servance of procedure required by law.” 5 U.S.C.
§ 706(2)(A), (D); see also Impresa Construzioni Geom. Do-
menico Garufi v. United States, 238 F.3d 1324, 1332 (Fed.
Cir. 2001).
Under the Tucker Act, the Court of Federal Claims has
jurisdiction over actions “by an interested party objecting
to . . . the award of a contract” by a federal agency. 28
U.S.C. § 1491(b)(1). “To satisfy § 1491(b)(1)’s standing re-
quirements,” such a plaintiff “must make two showings.”
CliniComp, 904 F.3d at 1358. “First, [the plaintiff] must
show that it is an ‘interested party.’” Id. This requirement
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REV, LLC v. US 10
is a matter of statutory standing only, which is not juris-
dictional. See CACI, Inc.-Fed. v. United States, 67 F.4th
1145, 1151 (Fed. Cir. 2023). An “interested party” object-
ing to a contract award is an “actual or prospective bidder[]
or offeror[] whose direct economic interest would be af-
fected by the award of the contract or by failure to award
the contract.” Rex Serv. Corp. v. United States, 448 F.3d
1305, 1307 (Fed. Cir. 2006) (internal emphasis and citation
omitted). “And [t]o prove a direct economic interest,” such
a plaintiff “must show that it had a substantial chance of
winning the contract.” CliniComp, 904 F.3d at 1358 (inter-
nal quotation marks omitted). In this way, the “interested
party” requirement “imposes more stringent standing re-
quirements than Article III.” Weeks Marine, Inc. v. United
States, 575 F.3d 1352, 1359 (Fed. Cir. 2009).
“Second, the plaintiff must show that it was prejudiced
by a significant error in the procurement process.” Clini-
Comp, 904 F.3d at 1358 (internal citation omitted). The
requirement to show prejudice, like the “interested party”
requirement, is statutory and not jurisdictional. See CACI,
67 F.4th at 1153 (“[T]he issue of prejudice is no longer ju-
risdictional unless it implicates Article III considera-
tions.”). “To establish prejudice,” a plaintiff objecting to a
contract award “must show that there was a ‘substantial
chance’ it would have received the contract award but for
the alleged error in the procurement process.” Info. Tech.,
316 F.3d at 1319. Put another way, to show prejudice a
disappointed bidder needs to show that “it had greater than
an insubstantial chance of securing the contract if success-
ful on the merits of the bid protest.” Id.
III
To establish statutory standing, and demonstrate it is
an “interested party” and sustained prejudice, REV must
show at least a substantial chance it would have been a
prevailing bidder under the Solicitation had it not been for
the errors it contends plagued the procurement process.
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REV, LLC v. US 11
We have previously observed that although the interested
party inquiry and the prejudice inquiry “may be similar,
prejudice must be shown either as part of, or in addition to,
showing a direct economic interest.” CliniComp, 904 F.3d
at 1358. Hence, while being an interested party and suf-
fering prejudice are separate requirements for standing,
the same showing may be pertinent to (and may even sat-
isfy) both.2
Here, like the Court of Federal Claims and the parties,
we will focus on prejudice. The Court of Federal Claims
found a lack of standing based solely on REV’s failure to
show prejudice. See J.A. 19 (“Plaintiff Was Not Prejudiced
by Any Alleged Failure to Exclude Intervenor-Defendant
Aptive”), 20 (“Plaintiff Was Not Prejudiced by the VA’s Al-
leged Improper Use of Competitive Range Procedures”), 22
(“Plaintiff Was Not Prejudiced by the VA’s Addressing a
Potential Organizational Conflict of Interest”), 23 (“There-
fore, plaintiff cannot establish prejudice sufficient to confer
standing, and its claim on this point must fail.”). On ap-
peal, the Appellees present no argument for finding lack of
standing that is independent of their contention that REV
could not have been prejudiced by alleged flaws in the pro-
curement process. In any event, we conclude that REV has
demonstrated a substantial chance it would have been one
of the awardees had it not been for the errors it alleges con-
taminated the procurement process, and it has, thereby,
under the circumstances presented here, shown both prej-
udice and that it is an interested party.
2 In general, the “direct economic interest” prong of
the interested party analysis is concerned with a bidder’s
substantial chance to be successful in the procurement pro-
cess independent of any error, while the prejudice analysis
is concerned with the impact the alleged error in the pro-
curement process has on the bidder’s chances of succeed-
ing.
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REV, LLC v. US 12
In assessing whether a party was prejudiced by pur-
ported errors in a procurement process, we must assume
that the party will, if permitted to proceed with its claim,
prevail on the merits. See Info. Tech., 316 F.3d at 1319
(“[Bid protestor] has established prejudice (and therefore
standing), because it had greater than an insubstantial
chance of securing the contract if successful on the merits
of the bid protest.”) (emphasis added). This means that our
analysis assumes that REV would be successful in its chal-
lenges to the implementation of the Solicitation. In partic-
ular, we presume that the six bidders whom REV targets
as having been improperly placed ahead of it – for reasons
including organizational conflicts of interest, failure to sub-
mit signed veterans employment certifications, and mak-
ing improper substantive changes to submissions – should
have instead been excluded from the second competitive
range, just as REV claims. Based on this assumption, we
are persuaded that REV has shown a substantial chance it
would have been added onto the T4NG IDIQ contract had
it not been for the problems it alleges affected six other of-
ferors.
The record establishes that the VA rated REV as “Ac-
ceptable,” J.A. 9060, which by the VA’s own definition
means that REV’s proposal met “all of the Government’s
requirements,” J.A. 3781. It further shows that REV re-
ceived the tenth or eleventh highest rating overall, among
the 33 offerors who participated in Step 2. Further, it is
undisputed that the VA selected the top nine offerors (that
is, all of the offerors that were included in the second com-
petitive range) to become part of the T4NG pool, after hav-
ing indicated in the Solicitation that “[t]he Government
intends to award seven (7) contracts to verified Service-Dis-
abled Veteran Owned Businesses (SDVOSBs).” J.A. 2431
(emphasis added); see also J.A. 15604. Given that we must
assume REV would prevail on the merits of its attacks on
six of the nine offerors rated more highly than REV, result-
ing in the exclusion of those six offerors, there is a
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REV, LLC v. US 13
substantial chance that the VA would have selected for the
pool at least the top seven remaining bidders, a group that
would have then included REV.3 In this way, REV has
shown “it had greater than an insubstantial chance of se-
curing the contract if successful on the merits of the bid
protest.” Info. Tech., 316 F.3d at 1319.
In other words, REV has shown a substantial chance
that if the number of offerors who were rated “Good” or
“Outstanding” was only three – as it would have been if the
six bidders REV attacks actually suffered from the defects
REV alleges – then the VA might very well have lowered
the minimum rating for being added to the pool to “Ac-
ceptable.” In that scenario, REV would have been in the
top seven and would, hence, have been in the competitive
range at Step 2. This logic leads, again, to the conclusion
that REV has shown a not insubstantial chance of being
added to the T4NG pool and, hence, standing.
We reach these conclusions based, in part, on our
agreement with REV that the VA’s decision on where to
draw the line between those who would remain in the pro-
cess after Step 2 and those who would not was based on the
offerors’ relative ratings. The VA did not set the floor at
“Good” until after it determined how many offerors met or
exceeded a “Good” rating. Thus, while each offeror was in-
itially evaluated independently, the line drawing that elim-
inated REV – which is the action REV is challenging; its
claims are not based solely on what happened after REV
was no longer part of the process, as the Court of Federal
Claims mistakenly stated – was based on a relative assess-
ment of the proposals received in Step 2. See, e.g., J.A. 9061
(“Offerors with an ‘Acceptable’ Technical Factor rating
were not as strong when compared to other Offerors, as all
3 To be precise, the resulting group would consist of
the three offerors who finished ahead of REV and whom
REV does not challenge, REV, and at least the three others.
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REV, LLC v. US 14
other Offerors have a Technical rating of ‘Good’ or better
and . . . presented stronger technical proposals.”) (emphasis
added). This reality adds even more weight to the substan-
tiality of REV’s showing: as long as the VA would have ad-
hered to its approach of defining the competitive range by
a relative calculus, i.e., the top seven or top nine qualified
finishers, REV would likely have ended up in the pool, ab-
sent the procedural flaws about which it complains.4
We recognize that in the Solicitation the VA reserved
the right to adjust the number of awards that it ultimately
issued. See J.A. 2431. But the VA also noted that it would
exercise this discretion “if it is determined to be in its best
interests for any reason.” Id. (emphasis added). The record
reveals no reason why it would have been in the VA’s best
interest to add fewer than the initially intended number of
offerors to the pool, which was seven, particularly when the
genesis of the Solicitation seems to have been the VA’s con-
cern about the small number of eligible SDVOSP bidders
remaining in the pool, in conjunction with the many con-
tracts remaining to be awarded on what is a massive – $22
billion – project. See J.A. 10643-44 (contracting officer
stating “it is anticipated that a large number of the current
SDVOSB contract-holders will no longer qualify as a
SDVOSB,” so “to replenish the pool of SDVOSB
4 This distinguishes the present case from those
cited by Appellees in which bidders who filed technically
unacceptable or untimely proposals were found to lack
standing. See, e.g., Labatt Food Services v. United States,
577 F.3d 1375, 1381 (Fed. Cir. 2009); Wisconsin Physicians
Services Ins. Co. v. United States, 151 Fed. Cl. 22, 43
(2020). Unlike in those cases, there is nothing objective –
like a technical deficiency or untimely submission – that
rendered REV’s proposal one that “fail[ed] to merit consid-
eration as a finalist.” Wisconsin Physicians, 151 Fed. Cl.
at 31.
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REV, LLC v. US 15
contractors, VA determined that it would be in its best in-
terest, and in the best interest of the SDVOSB community,
to issue a competitive solicitation, restricted to SDVOSBs,
in accordance with the On-ramp clause”); see also 38 U.S.C.
§ 8127 (setting out obligation of agency to make contracting
opportunities available to small, veteran-owned, and disa-
bled-operated businesses); Kingdomware Techs., Inc. v.
United States, 579 U.S. 162, 165 (2016) (explaining that
law “requires the Secretary of Veterans Affairs to set more
specific annual goals that encourage contracting with vet-
eran-owned and service-disabled veteran-owned small
businesses”).
The government and Aptive criticize REV’s arguments
for standing as amounting to nothing more than specula-
tion. To Appellees, the VA’s evaluation of the merits of
REV’s proposal was (and always will be) entirely independ-
ent of the VA’s establishment of the second competitive
range. In their view, REV’s proposal was merely “Accepta-
ble,” the VA chose to require at least a “Good” overall rat-
ing, and once the VA made those determinations REV had
no chance whatsoever of being selected. According to the
government and Aptive, then, even if REV were to succeed
in its challenges to six of the nine successful offerors, the
result would simply be that the VA would go forward with
just the three remaining offerors, as only those three met
or exceeded the VA’s threshold requirement of a “Good” rat-
ing.
For the reasons we have already given, we are not per-
suaded by these arguments. We emphasize, once again,
the purpose of the Solicitation was to “replenish the pool of
SDVOSB” bidders for the T4NG project. J.A. 2194. Noth-
ing in the record supports Appellees’ supposition that the
VA, having gone to the trouble of reviewing 94 offerors
through a two-stage process, and finding (on the assump-
tion that REV is right in its critiques of six highly rated
bidders) that only three bidders were rated at least “Good,”
would have been satisfied to add only that minimal number
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REV, LLC v. US 16
of bidders to the pool rather than to dip into the group of
additional offerors it had found to be entirely “Acceptable”
and add some of them.5
Accordingly, we conclude that REV has shown preju-
dice. Thus, REV has standing to be heard on the merits of
its claims against bidders who were rated more highly than
REV. We reverse the Court of Federal Claims’ judgment
for Appellees.
IV
We have considered the Appellees’ remaining argu-
ments and find them unpersuasive. Because REV had
standing to challenge the second competitive range and the
validity of rival bids, the Court of Federal Claims’ grant of
judgment to the government and Aptive, and its dismissal
for lack of standing, is reversed. The case is remanded for
further proceedings consistent with this opinion.
REVERSED AND REMANDED
COSTS
Costs awarded to Appellant.
5 We decline the government’s invitation to evaluate
the merits of REV’s challenges to the higher-rated offerors.
The trial court did not reach the merits and the govern-
ment’s contentions may raise factual disputes. It is also
possible one or more parties may, on remand, seek to sup-
plement the record. See Oral Arg. at 13:35-14:31 (REV
counsel stating that record could be reopened to supple-
ment with, for example, testimony of contracting officer).
Case: 22-1759 Document: 56 Page: 16 Filed: 01/29/2024

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