A contractor bidding on a U.S. Department of State contract was improperly downgraded for failing to possess direct experience working with DOS, according to a recent GAO bid protest decision.
The GAO’s decision in Exelis Systems Corporation, B-407111; B-407111.2; B-407111.3; B-407111.4 (Nov. 13, 2012) is notable because it is not unusual for procuring agencies to consider agency-specific experience as part of a past performance and/or experience evaluation. According to Exelis Systems Corporation, such considerations may be deemed improper, unless they are spelled out in (or can be reasonably inferred from) the solicitation.
The Exelis Systems GAO bid protest involved a DOS solicitation for operations and maintenance services for facilities in Iraq, including the Baghdad Embassy Compound. Offers were to be evaluated on a “best value” basis, taking into account price and five other factors.
Past performance/experience was one of the five non-price factors. The solicitation stated that in evaluating past performance and experience, the DOS would analyze the relevance and currency of each offeror’s work.
With respect to relevance, the solicitation stated: “consideration will be given to the similarity of the service performed in hostile, austere, and remote locations; complexity; technology; magnitude of effort; contract scope and type; and schedule.” The solicitation did not indicate that prior experience with DOS contracts would be considered.
Exelis Systems Corporation submitted a proposal. In its evaluation of Exelis’s proposal, the DOS assigned a weakness because the proposal “show[s] a lack of direct contracting experience with the Department of State.”
In contrast, the DOS lauded the agency-specific experience of a competitor, PAE Government Services, Inc., as a “major strength” of PAE’s proposal. The DOS made award to PAE.
Exelis filed a GAO bid protest, challenging four specific alleged improprieties in the DOS’s evaluation. Among the bases of protest, Exelis complained that the DOS had improperly applied an unstated evaluation criterion by evaluating offerors on the basis of their DOS experience.
The GAO agreed with Exelis. It noted that agencies may only apply evaluation criteria that are not expressly stated in the RFP “if those considerations are reasonably and logically encompassed within the stated evaluation criteria” with a “clear nexus between the stated and unstated criteria.”
Here, the GAO held, the solicitation “did not contain a requirement for offerors to demonstrate ‘direct contracting experience with the Department of State . . .’” Further, the descriptions of the evaluation criteria contained in the solicitation “in no way suggest” that prior DOS experience was reasonably related to or encompassed by these factors. The GAO sustained this ground of Exelis’s protest (as well as two of its three other bases of protest).
The Exelis Systems GAO bid protest decision should serve as a warning to contracting agencies. If agencies do not indicate in their solicitations that agency-specific experience will be considered, but proceed to consider it anyway (something that happens at least occasionally, in my experience), they will be setting themselves up for successful GAO bid protests of the type won by Exelis.