Absent an express prohibition in the solicitation, the experience of a proposed subcontractor may be considered by an agency in determining whether an offeror meets the solicitation’s experience requirements.
In a recent bid protest decision, the GAO confirmed that the experience of a proposed subcontractor could be considered in an agency’s evaluation because the solicitation did not prohibit the agency from considering the subcontractor’s experience.
The GAO’s decision in The Bowen Group, B-409332.3 (Aug. 6, 2014), involved a United States Marine Corps procurement for support services to the Wounded Warrior Regiment Recovery Care Coordinator Program. The solicitation was issued as a small business set aside.
The solicitation stated that evaluations would consider five factors, including corporate experience and past performance. Under the past performance factor, the solicitation stated that the Marine Corps would evaluate relevant projects for the prime contractor “and/or” its team members. Regarding the corporate experience factor, the solicitation required the agency to evaluate the extent to which an offeror’s corporate experience related to the solicited requirement, including the “types of caseloads and duties required under caseload management, as well as how the corporate experience reflects the depth of working knowledge of Marine Corps culture.” The solicitation did not expressly prohibit the consideration of a subcontractor’s experience under this factor. However, unlike the past performance factor, the solicitation did not specifically state that the experience of teammates could be considered under the corporate experience factor.
After evaluating competitive proposals, the Marine Corps awarded the contract to Special Media Enterprises, LLC. An unsuccessful competitor, The Bowen Group, filed a GAO bid protest. Bowen alleged, in part, that the Marine Corps had erred by assigning SME an “outstanding” rating under the corporate experience factor based on the strong corporate experience of SME’s subcontractor. Bowen asserted that the solicitation’s express reference to consideration of an offeror’s team members’ information under the past performance factor was a “clear indication that evaluation of subcontractor experience was only permitted under the Past Performance evaluation factor.”
The GAO reiterated its longstanding rule that “the experience of a proposed subcontractor may be considered in determining whether an offeror meets experience requirements in a solicitation where the solicitation does not expressly prohibit such consideration.” The GAO noted that in this case, SME’s proposed team included the incumbent contractor, which in the agency’s opinion demonstrated that SME’s team had the requisite level of experience to support the highest rating of “outstanding” for the corporate experience factor.
The GAO then compared the requirements for the corporate experience factor and the past performance factor. The GAO concluded that the lack of a reference to an offeror’s subcontractors under the corporate experience instructions could not reasonably be interpreted as a prohibition against the consideration of a subcontractor’s corporate experience. Therefore, “[a]bsent an express prohibition, it was not unreasonable for the agency to include SME’s subcontractor experience in evaluating the awardee’s ability to perform” the solicitation requirements. The GAO denied Bowen’s protest.
Small businesses sometimes complain that inexperienced competitors should not be awarded high scores for their past performance or corporate experience. However, as demonstrated in The Bowen Group, even where a contract is set-aside for small businesses, an agency may properly credit a prime contractor with the experience of its subcontractors, unless the solicitation expressly states otherwise.