GAO Sustains Protest Where Agency Failed to Reasonably Evaluate Past Performance

GAO defers to agencies on many issues related to their procurements. But GAO will intervene when an agency says one thing, in a solicitation, but does another when it evaluates proposals. In other words, GAO will sustain protests when the agencies disregard their own evaluation criteria outlined in a solicitation.

Otherwise, the agency might–even inadvertently–evaluate proposals unequally–a situation that a just and fair procurement system must avoid. 

GAO confronted this situation in US21, Inc., B-415045.9 (Sept. 10, 2018). There, the Department of State sought a contractor to furnish certain support services in the agency’s mission to help the Palestinian Authority Security Forces provide law enforcement, security, and public safety in the West Bank. Under the envisioned contract, the contractor would, among other things, conduct investigations, ensure cooperation with other programs in the West Bank, recruit training mentors and subject matter experts, and warehouse supplies and equipment. 

The solicitation was set aside for small business and provided that an award would be made on a best-value tradeoff basis, considering price and non-price factors.

With respect to past performance, the solicitation required offerors to “identify at least four contracts performed within the past 5 years that demonstrated relevant past experience.” The further solicitation advised that past performance should be consistent with the size, scope and complexity contemplated by the solicited work. Greater consideration would be given past performance that was technically relevant to Palestinian Authority Security Forces training. 

Past performance was evaluated with the following ratings: substantial confidence, satisfactory confidence, unknown confidence, limited confidence, or no confidence. Both the awardee, and US21, the protester, were given a rating of substantial confidence. In terms of price, the awardee proposed $45.9 million and US21 proposed $40.2 million. The awardee ultimately won out because, in the best value tradeoff analysis, awardee’s higher price was justified given its apparently superior technical approach.

US21 had a hunch that the agency’s rating of substantial confidence for awardee’s past performance was inflated, given the solicitation’s evaluation criteria. So, it argued that “the agency failed to meaningfully consider the limited magnitude and technical relevance of [awardee’s] past performance examples when it assigned the awardee the highest possible past performance confidence assessment.”

GAO agreed. It noted that the solicitation’s value was more than $40 million but the past performance examples identified by the awardee were valued at approximately $525,000, $2 million, and $3.7 million. In addition, while the solicitation contemplated the need for 50 employees to perform the work, the awardee’s past performance examples portrayed work requiring far fewer employees (the actual numbers were redacted from GAO’s opinion). Given the large discrepancy between the solicitation’s envisioned work and the awardee’s past performance examples, GAO held:

In our view, given the difference between the dollar values of [awardee’s past performance examples] and the work at issue here–and the difference of employees involved–the agency could not reasonably conclude that the performance examples identified by [awardee] and reviewed by the evaluators are similar in size to the solicitation here. As a result, we cannot find reasonable the agency’s decision to assign [awardee] a rating of substantial confidence under the past performance evaluation factors.

The agency attempted to justify its substantial confidence rating in two ways.

First, it argued that the past performance evaluation criteria also provided for consideration of other factors beyond size and scope, like technical relevancy. “Nonetheless,” held GAO, “even if we agree that the examples provided by [awardee] are technically relevant to the objectives in the solicitation . . . we do not find reasonable the agency’s conclusion that the smaller dollar value and staffing levels of the past performance examples identified by the awardee support the highest possible confidence assessment rating.”

Second, the agency argued that it relied on additional past performance examples submitted by awardee. But GAO dismissed this argument out of hand. It found that “there is nothing in the record that indicates that the agency considered the recency or relevance of these additional examples when it evaluated [awardee’]s past performance. . . . Accordingly, the record does not support the substantial confidence rating which was assigned during the evaluation.” 

Ultimately, GAO sustained US21’s protest and recommended that the agency reimburse US21 for its protest costs.

The lesson to bear in mind is this: whenever an agency evaluates a proposal in a way that conflicts with the solicitation’s stated evaluation criteria, and it causes you prejudice, the issue is usually protest-worthy. 

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