On March 14, 2022, the Government Accountability Office (GAO) sustained a protest (B-420267.3, B-420267.4) filed by Starlight Corporation (Starlight), a small business based in Carlsbad, California, contesting the Air Force’s award of a contract to a competitor.
In its protest, Starlight complained that the Air Force’s past performance evaluation was not in accordance with the solicitation’s evaluation criteria and was otherwise unreasonable. This decision serves as yet another reminder that the GAO will scrutinize the agency record and sustain a protest where the agency does not properly document its evaluation decision in accordance with the terms of the solicitation.
On June 30, 2021, the Air Force issued a solicitation as a small business set-aside for tow, wash, de-paneling, lubrication, and cleaning services for C-5 and C-17 aircraft at Dover AFB pursuant to Federal Acquisition Regulation (FAR) part 15 procedures.
The Air Force’s solicitation informed offerors that the agency planned to award a single, fixed-price contract with a 1-year base period and four 1-year option periods, and that among technically acceptable offers, the Air Force may trade-off between past performance and price, with past performance being significantly more important than price. With respect to past performance, the solicitation also provided that the Air Force would evaluate the recency, relevance, and quality of past performance information provided in the offeror’s proposal and independently obtained from other sources. Starlight, the incumbent contractor, competed for this award under this solicitation, but the Agency ultimately made the award to another offeror without discussions and notified Starlight of its decision.
On October 8, 2021, Starlight timely filed its protest with the GAO challenging the Air Force’s evaluation and award decision. On October 21, the Air Force notified the GAO that it was taking corrective action by reevaluating all proposals and making a new best-value determination. Accordingly, the GAO dismissed Starlight’s protests as academic. In taking corrective action, the Air Force established a competitive range that included all of the original offerors. The Air Force requested proposal revisions and ultimately concluded that the company it had originally awarded the contract to again presented the proposal that represented “the best value to the Government.” The Air Force based its rationale on the awardee’s consistent superior Past Performance for Aircraft Corrosion Control Services and its total evaluated price, which was about 5% below the Air Force’s independent government estimate. After obtaining its debriefing from the Air Force, Starlight timely filed the instant protest with the GAO.
In the protest, Starlight challenged the Air Force’s evaluation of its own past performance, the Air Force’s evaluation of the awardee’s past performance and the best-value determination. Starlight asserted that the Air Force did not consider nor document its relevancy evaluation of the submitted past performance information. Starlight also alleged that the Air Force failed to evaluate the quality of its past performance questionnaires (PPQs) in accordance with the solicitation.
The GAO concluded that the Air Force’s past performance evaluation was unreasonable and ultimately sustained the protest on that basis. The service branch had not sufficiently documented the evaluation to permit the GAO to determine whether the Air Force’s conclusions about the relevance of the awardee’s past contract references were reasonable. The GAO noted that the only place in the contemporaneous record where the relevance of the past performance information was addressed was a table for each offeror in the SSEB report. According to the GAO, in spite of the inclusion of this table, there was no documented discussion of the relevance of the contracts considered by the Air Force concerning the solicitation requirements, nor was there any rationale related to the relevancy ratings assigned to each offeror. The GAO noted that the Air Force simply indicated that the past performance was relevant or not relevant with no contemporaneous discussion of how it came to those conclusions and provided no basis for the GAO to assess the validity of its evaluation of past performance information.
Regarding the allegation that the Air Force downgraded Starlight’s PPQ rating because there was no supporting narrative included with the PPQ, the GAO found that because the PPQ form did not require remarks when ratings of exceptional or good were assessed, that the Air Force improperly downgraded Starlight’s rating of exceptional to satisfactory because of this lack of information. The GAO made it clear that it will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions; that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. But in this case, because the GAO had no basis to assess whether a change in the Air Force’s rating for Starlight’s PPQ might have resulted in a higher overall past performance confidence rating for Starlight and possibly a different best-value trade-off determination, the GAO sustained the protest since there was a reasonable possibility of prejudice.
Federal agencies must endeavor to evaluate proposals in a manner consistent with the terms of the solicitation and adequately document the rationale for its ratings. If agencies fail to do so, and an offeror protests such conduct at the GAO, the offeror is likely to prevail. In such a case, the GAO may sustain the protest and require the agency to reevaluate proposals and make a new source selection decision based on that reevaluation or take such other steps permitted by applicable procurement laws and regulations. For a sustained protest, GAO will also likely recommend that the agency reimburse a successful protestor its reasonable costs of filing the protest and pursuing resolution, including reasonable attorneys’ fees under 4 C.F.R. § 21.8(d)(1). Therefore, offerors who learn in their debriefing that an agency has not adequately documented its source selection decision or its evaluation of their proposal should consult with counsel experienced in litigating these sorts of protest issues before the GAO. If you have questions about this decision, feel free to contact any of the drafters of this blog post.