The GAO recently sustained a protest challenging the U.S. Coast Guard’s evaluation of past performance in a task order competition to obtain information technology support services under a multiple-award IDIQ enterprise acquisition gateway for leading edge solutions (EAGLE II) contract. Despite being decided in April, the decision was released recently to the public. SITEC Consulting, LLC, B-413526.4-.7 (April 3, 2017).
The RFQ advised offerors that the government would evaluate “relevant past performance.” The RFQ defined “relevant” as “similar to the IT services in the PWS and similar in nature, scope, size and complexity to the required services.” The RFQ provided an evaluation scheme for past performance that included the following adjectival ratings: “little confidence,” “neutral,” “confidence,” and “significant confidence.” The agency assigned a “confidence” rating to all four offerors’ past performance. Following a tradeoff analysis, the agency awarded the contract to Computer World Services Corporation (CWS).
VariQ Corporation (VariQ) challenged the agency’s past performance evaluation, arguing that it should have evaluated CWS’ past performance as “neutral” rather than “confidence.” According to the record, the agency determined that CWS had some past performance that was similar in scope but smaller in size. Despite CWS lacking “relevant” past performance as defined by the RFQ, the agency assigned CWS a “confidence” rating because it did not find any negative past performance.
The agency conceded in the protest that “neutral” was the appropriate past performance rating for the awardee, but argued that the error did not prejudice VariQ. The GAO disagreed, explaining: “Although agencies may not rate an offeror that lacks relevant past performance favorably or unfavorably with regard to past performance, an agency may, in a price/technical tradeoff, determine that a high past performance rating is worth more than a neutral past performance rating.” Id. As the RFQ stated that the technical and past performance factors combined were significantly more important than price, the GAO found a reasonable possibility that VariQ was prejudiced by the agency’s error, and sustained the protest.
SITEC reflects some of the unique circumstances that typically must be present in order to successfully challenge an agency’s past performance evaluation. The GAO rarely finds error in an agency’s assignment of a particular adjectival rating to an offeror’s past performance. Indeed, the GAO repeatedly has held that “[a]n agency’s determination of the relevance or merit of a vendor’s performance history is a matter within the discretion of the contracting agency, which we will not disturb unless the agency’s assessments are unreasonable or inconsistent with the solicitation criteria.” See, e.g., Rotech Healthcare, Inc., B-413024, et al., Aug. 17, 2016, 2016 CPD ¶ 225 at 3.
Here, although apparently supported by the record, the GAO’s finding of error was particularly bolstered by the fact that the agency conceded “neutral” was the more appropriate past performance rating for the awardee. The weight the GAO placed on the agency’s concession underscores how difficult it is for a protester to challenge an agency’s past performance evaluation under most circumstances.
Another important aspect of the decision was a reminder to incumbents who file a bid protest challenging a technical evaluation – do not assume that incumbency status will result in the highest available technical rating. As the GAO reaffirmed: “There is no requirement that an incumbent be given extra credit for its status as an incumbent, or that an agency assign or reserve the highest rating for the incumbent offeror. An incumbent’s proposal, lacking specific information required by the solicitation, may reasonably receive a relatively low evaluation rating, notwithstanding the firm’s incumbent status. The RFQ expressly advised offerors that the agency would evaluate proposals as written, without regard to information not provided in proposals. On this record, therefore, we see no merit to VariQ’s claim that its incumbency should necessarily have resulted in its proposal receiving the most favorable technical evaluation rating.”
Therefore, when submitting a protest, it is recommended that the protestor focus on the content of its proposal rather than on a general expectation of agency knowledge of the protestor’s work on a current contract to support a higher technical rating.
