Judge peels apart protests against DHA's $1.6B health readiness award

On one hand, a federal judge’s ruling to deny two protests against the Defense Health Agency’s selection of Optum's federal-facing subsidiary for a $1.6 billion health readiness contract is a normal part of the legal process.

But on the other hand: it is not often that a Court of Federal Claims decision compares a protest to how people use lint rollers to remove pet hair and other small fibers from clothing.

Judge Zachary Somers decided to use that illustration in his 35-page ruling against the protests filed by LTS Health Partners and incumbent QTC Medical Services, a subsidiary of Leidos, against the award to OptumServe Health Services. The protests were filed in May and denied on Oct. 9, while the ruling was unsealed on Oct. 28.

Somers’ introduction compared the protesters’ approach to how all capable lawyers can find problems in any government procurement, much like how lint rollers can pick up anything.

The problem for all protesters, including these two, is that it is not enough to merely point out mistakes an agency made in a procurement and count the number of errors. Protesters must instead show the errors have “some significance.”

Enter Somers with a colorful summary of how, in his eyes, LHP and QTC ignored that basic principle:

“Deploying a total of (17) arguments across approximately 150 pages of briefing, plaintiffs have done their best impression of a lint roller, attempting to pick every particle off this procurement.”

DHA awarded the Remote Health Reserve Program-4th Generation Support Services contract to OptumServe Health Services in April over three other proposals, including those from QTC and LTS. The fourth bidder’s identity is redacted from the public version of Somers’ ruling.

There was some disagreement among the key decision makers on who to choose for the contract. QTC was the source selection authority council’s recommended awardee, but the council’s report did spell out dissenting opinions from two members that Optum should win instead.

The source selection authority was not obligated to follow the council recommendations and ratings to the proposals, but he followed most of them.

He did assign QTC a lower past performance confidence rating than the council recommended, from Substantial to Satisfactory. LHP was upgraded from Limited to Neutral, but only on the lack of available information.

Optum was given a “Substantial” rating for past performance, which the court ruling indicates is a major factor in what swung the award. Optum also had the advantage in the Technical/Risk factor over QTC.

But did DHA actually make any mistakes that meet the legal threshold to win a protest in court? Were DHA’s actions, findings and conclusions in fact arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law?

Even if the answer to those questions is yes, protesters still have to spell out all of their arguments as to why and essentially help the judge follow along as they make them.

Each and every section of the ruling’s analysis section begins with some variation of “Failed to show,” whether the judge addresses an individual protester or them as a pair.

The court deferred to how DHA evaluated past performance as a matter of precedent, meaning the plaintiffs had to detail their arguments.

“Neither plaintiff even made it to base camp,” Somers wrote.

Somers summarized the protesters’ arguments as “half-developed” and suggested that future litigants read his decision in detail as a reminder that they are much better off with “carefully selecting and fully developing a few key arguments.”

Nowhere in his ruling does Somers appear to have found an error by DHA that prejudiced either LHP or QTC from the award. DHA seems to have done its homework in defending its choice of Optum over the others.

Somers also used the classic kitchen sink imagery to make his point that these protests fell well short of the mark:

“Plaintiffs threw everything they could think of at the court in hopes that something would stick. They came up empty.”

Back to the beginning with a second main takeaway from this one: lint rollers may be valuable tools in life, but are not in the courts and certainly not when trying to get a contract award vacated.