Past performance is a key part of most government proposal evaluations. Generally, a federal agency gets a lot of discretion in evaluating past performance. But that discretion is not without limits. In a recent decision, GAO sustained a protest where the agency failed to properly evaluate past performance examples for being similar in size.
In General Dynamics Information Technology, Inc., B-421290.2 (March 1, 2023), GDIT (or protester) protested a task order award to GovCIO, LLC (or awardee) under a VA procurement for electronic file conversion services. The evaluation looked at standard items like technical, staffing, and past performance, with technical being more important than past performance. The proposals were both low risk on past performance, but while protester had a higher technical rating than the awardee, the awardee had a much lower cost and there were “no significant advantages or disadvantages between the offers to justify the payment of the price difference associated with GDIT’s offer, given the level of technical competence available at GCIO’s lower price.”
For past performance, protester argued that the “the awardee’s past performance references should not have been found relevant because they were smaller than the solicitation requirement, and did not involve all of the same requirements as the solicitation.” GAO will review an agency’s past performance evaluation to determine if it is unreasonable or undocumented.
The solicitation required submission of up to two relevant projects, with relevancy defined below:
Relevancy is defined as a contract that is similar in size and scope of the requirements in the solicitation. . . . Similar in size means the total price of the contract, the number of staff, the number of users served, the number of locations served, etc. Scope compares how well the requirements in the RFQ’s PWS align with those of the past performance referenced. Quality is defined as performance which is satisfactory or better and will be used to assess the risk associated with successful contract performance.
GAO concluded that “neither the contemporaneous record nor the agency’s response to the protest reasonably explain why it found the awardee’s past performance references relevant.” In past cases, GAO had found that an agency’s relevancy determination was faulty where the example projects were 0.14 percent of the value of the solicitation requirement and less than 3 percent of the solicitation requirements.
So GAO looked at the relationship here between sample projects and evaluation requirements. On that question, the agency admitted “that the value of the awardee’s PMCMS and EMMS contracts were smaller in size as compared to the awardee’s proposed price for the solicitation, and involved fewer FTEs, but states that they were sufficiently similar in terms of the overall value, personnel, and number of users and locations served.”
GAO didn’t buy this, responding that the “agency’s response to the protest does not specifically explain how it found the size of the PMCMS reference relevant in light the smaller size of the reference ($101 million) as compared to the proposed price for this procurement ($241 million).” “Similarly, the agency does not specifically explain how it found the size of the EMMS reference relevant in light of the smaller size of the reference ($40 million) as compared to the proposed price for this procurement ($241 million).” The agency also didn’t address the discrepancies in number of FTEs between sample project and contract scope. (The actual FTE comparison was redacted)
The VA also argued that it looked at “number of users [and] locations served,” to determine relevancy, but there were no specifics cited from the awardee’s proposal to back this up. Then, VA claimed it had familiarity with these past contracts, stating: “VA is uniquely positioned in regard to the Paper Mail task order as the same office oversaw the performance of this contract. Accordingly, VA found that based on the total price and the number of users, locations served, and staff, the Paper Mail task order is similar in size to the CS task order.”
Finally, the record failed to “explain how the agency found the awardee’s references similar in scope.” For instance, the “agency acknowledges that C-files (VA disability benefit claim files) are different from OMPFs (armed service career files), but does not reasonably explain why it concluded that the proposal’s citation of C‑files demonstrated experience with OMPFs.” Over VA’s arguments, GAO concluded that “to the extent the agency relied on its understanding that GovCIO’s past performance reflected experience handling OMPFs [official military personnel files], the record does not support this conclusion.”
As a result, GAO concluded the agency evaluation was unreasonable because the past performance evaluation was flawed. GAO recommended the agency reevaluate and make a new award decision. When it comes to past performance evaluation, an agency’s discretion has limits and it must be reasonable.
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