GAO: Agency Should Have Considered Experience Of Contractor’s Personnel

A procuring agency’s assignment of a “significant weakness” on the basis of a contractor’s supposed lack of experience was unreasonable because the agency did not consider the experience of the contractor’s personnel.

In BAE Systems Technology Solutions & Services, Inc., B-405664, B-405664.2 (Dec. 12, 2011), the GAO sustained a bid protest, holding in part that the agency erred by overlooking the experience of the protester’s personnel.

The BAE Systems case involved a Naval Air Systems Command solicitation for contractor logistics support of certain trainer aircraft.  The solicitation called for the agency to evaluate four factors: management and maintenance approach, past performance, experience, and price.

The agency received three offers, including an offer from BAE Systems Technology Solutions and Services, Inc.  BAE’s proposal demonstrated that its personnel had a number of years of experience with the Naval Aviation Maintenance Program process.  Nevertheless, the agency assigned BAE a “significant weakness” under the experience factor, stating that BAE lacked experience with the NAMP process.  The agency ultimately awarded the contract to a higher-rated, higher-priced competitor.

BAE filed a GAO bid protest challenging the award decision.  Among its arguments, BAE contended that it was unreasonable for the agency to fail to consider the experience of BAE’s personnel before assigning BAE a significant weakness on the experience factor.

The GAO agreed with BAE.  Reviewing the agency’s evaluation file, the GAO stated that “we cannot find, nor has the agency identified, any discussion or mention of the NAMP experience of BAE personnel in the contemporaneous record.”  Thus, the GAO wrote, “it is unclear whether the agency was aware of the NAMP experience of BAE’s personnel but elected not to consider it, or whether the section of BAE’s [proposal] setting forth the NAMP experience of its personnel was simply overlooked.”

The GAO noted that although the solicitation did not specifically state that “personnel experience” would be considered, it “does not expressly prohibit the consideration of personnel experience under the experience factor.”  Contrary to the agency’s position, “it is generally proper for an agency to consider the experience of the offeror’s personnel in evaluating a firm’s experience.”  As such, the GAO held that it was unreasonable for the agency to fail to consider “in any manner at all” the personnel experience of BAE, whether by mistake or otherwise.  The GAO sustained BAE’s protest.

The BAE Systems case demonstrates that, as a general matter, procuring agencies should consider personnel experience when evaluating a contractor’s corporate experience.  For small businesses–especially new small businesses–it is a heartening result, because hiring the right people could provide an important boost to an experience score.

Finally, you may be asking: why is SmallGovCon writing about a case from 2011?  No, it’s not that I have run out of current material (something always seems to be happening in the government contracts legal world).  Rather, the BAE Systems case was decided under a protective order in 2011, but was only published today.  The GAO did not explain the reason for the lengthy publication delay.

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