GAO Puts Substance Over Form in Past Performance Protest

Recently, GAO sustained a bid protest where an agency “unreasonably excluded” a joint venture’s proposal, which included all necessary information listed in the solicitation, from competition.

The GAO held that it was unreasonable for the agency to exclude the joint venture merely because the joint venture’s proposal didn’t include a subcontract number for one of its past performance references. The GAO held, in essence, that the missing information was irrelevant because it had no bearing on the type of work completed.

In Veteran Technology Integrators, LLC, B-415716.3 (Comp. Gen. Jun 20, 2018), an agency issued an RFP for a multiple-award IDIQ contract related to IT services. Proposals were to be evaluated on technical experience and past performance, among other considerations. The technical experience and past performance evaluation factors required a minimum number of contract references addressing particular subfactors.

For IDIQ contract references, the RFP required, at minimum, task order numbers be included, but not base IDIQ numbers alone. In addition, joint ventures were required to provide at least one contract reference for each JV member. Finally, each contract reference had to include a technical narrative, indicating the work actually done by the offeror or JV member.

Veteran’s Technology Integrators, LLC, a joint venture, submitted a proposal, providing the appropriate number of references. VTI, however, included only a subcontract reference for one JV member. For that reference, VTI provided the base contract’s IDIQ number because the subcontract itself was not assigned a specific number.

While providing a subcontract reference was permissible under the RFP, upon receipt of the proposal, the contracting officer reviewing the proposal took note of the IDIQ number without analyzing the accompanying narrative. The contracting officer contacted the contracting agency to verify the number referred to as an IDIQ upon which task orders were issued. Because the agency confirmed the contracting officer’s assumption, the agency rejected the proposal immediately, because VTI “failed . . . to provide an associated task order number.”

VTI protested, arguing that not only was the subcontract not assigned a number, but also the narrative provided with the reference properly explained the subcontract arrangement.

GAO agreed with VTI, holding “the rationale proffered to support exclusion of VTI’s proposal lack[ed] a reasonable basis.” GAO determined that even if a subcontract or task order number existed and was provided, “it is unclear what information the agency could have gleaned solely from the subcontract number about the type of work” done. Further, GAO found “the agency had [received]. . . descriptive information regarding the type of work performed by [the JV member] that it could have used to evaluate VTI’s technical and past performance information,” but the agency “failed to look further than the IDIQ number.” Because the agency possessed the information it really sought, despite the number provided, GAO sustained VTI’s protest.

The Veterans Technology Integrators case is a welcome instance of GAO putting substance over form. Here, there was nothing relevant the agency could have learned from a subcontract number. Excluding VTI for failing to provide one just didn’t make sense.