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Past Performance Objections Sustained in GAO protest

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JMark, an 8(a) company based in Colorado Springs, CO, objected to the Air Force awarding a contract to SierTek, another 8(a) company based in Beavercreek, OH, for intelligence course instructor services at Goodfellow Air Force Base in San Angelo, TX. The protest was based on four distinct objections: (1) the evaluation was tainted by bias, (2) the technical evaluation was improperly conducted, (3) the price was not calculated properly because a price realism evaluation was not done, and (4) the past performance evaluation was done incorrectly where prior performance wasn't fully considered.  The first three objections were either dismissed or denied by the Government Accountability Office(GAO) General Counsel who heard the bid protest but sustained JMark's objection the past performance evaluation.

How the Case Unfolded...

The Air Force issued the Request for Quotations (RFQ) in January 2019 and targeted it for the Small Business Administration’s (SBA) 8(a) set-aside program. The RFQ was issued as a combined synopsis/solicitation using the simplified acquisition procedures in the Federal Acquisition Procedures (FAR) subparts 12.6 and 13.5. The contract was to be a fixed price for the base year with the possibility of another four-year fixed-price option.

The award of the solicitation was to be on a  “best-value tradeoff basis considering three factors: (1) technical, (2) past performance, and (3) price.” The Air Force said the technical aspect would be evaluated on a past/fail basis. The agency would be conducting a tradeoff analysis between the past performance and price factors but they did not disclose the weight of each of these factors. The agency reserved the right to award the contract to a higher priced vendor if the vendor’s “better past performance history” merited awarding the contract at a higher price.

Eligible Vendors Evaluated

All eligible offerors, to be technically acceptable, had to meet two requisites: (1) have top-secret facility security clearance and (2) indicate in their responses that they would comply with and perform all functions and duty detailed in the Performance Work Statement (PWS).

Past performance evaluations were to be based on recent and relevant contracts for similar work and were to be submitted by the vendors. Vendors were permitted to have prior customers complete and submit past performance questionnaires (PPQ). The Air Force’s evaluation of past performance could include a number of sources of information and may take into account information regarding the experience of subcontractors.

Offerors were required to submit a fixed price for each year of the contract including the four option years. The RFQ said the prices would be evaluated for reasonableness (prices too high), but would not be evaluated for price realism (prices too low). Sixteen applications were submitted and all were deemed technically acceptable. On Feb. 8th, 2019, SierTek was determined to be the best value to the government and it was awarded the contract.

The First Protest

Less than two weeks later, JMark filed a protest with the GAO challenging the award and alleging that the award to the other company was “tainted by bias” and that there was improper conduct between an agency official and an individual associated with the awardee. They also objected to the evaluation of proposals as being unreasonable and did not conform to the solicitation’s stated evaluation scheme.

After the protest was filed, the Air Force told the GAO that they intended to take corrective action. The Contracting Officer (CO) said he was  unaware of any inappropriate relationships or conduct on the part of the agency official. The CO also said he intended to cancel the award, evaluate the scope of any improper influence and reevaluate quotations using personnel “untouched by potential conflicts of interest.” That action made the protest academic and the GAO dismissed it on March 6th, 2019.

Contract Performance Assessment Reporting System

The CO relied solely on Information found in the Contract Performance Assessment Reporting System (CPARS) to evaluate past performance of the applicants. (CPARS.gov is now the official source for past performance information.). However, this was problematic because the solicitation noted seven areas that the applicants would be ranked on and the CPARS only included five of these.

Five CPARS Evaluation factors

The CPARS ratings were used for these five areas: (1) quality, (2) schedule, (3) cost control, (4) management, and (5) small business contracting. The CO pulled the percentages from CPARS and entered the numbers in a spreadsheet. After reviewing the data, the CO concluded that the past performance of JMark and SierTek were “roughly equal” because “on the whole, these numbers were similar.”

Again, SierTek’s offer was found to be fair and reasonable by the CO and found to be the best value to the government. They were again awarded the contract on April 2nd, 2019. A debriefing was requested by JMark and after that occurred on April 5th, 2019; JMark filed a new protest on April 11th, 2019 continuing to allege bias and bad faith. They also claimed that the evaluation of the three factors and its best value tradeoff decision was unreasonable.

The Second Protest

JMark claimed the price was not reasonable or realistic and that the Air Force should have required pricing information to verify price reasonableness and price realism Past performance was challenged and the conclusion that the past performance of the two companies was “roughly equal.” JMark said the Air Force failed to consider the relevancy of the vendor’s past performance. Finally, JMark challenged the technical factor by the Air Force accepting at face value SierTek’s certification that it would comply with the PWS. Finally, JMark alleges that the agency converted the source selection methodology from a vest value tradeoff to a lowest price, technically acceptable methodology.

Bias and Bad Faith Allegations

The GAO hearing officer held that government officials are presumed to act in good faith unless there is convincing proof otherwise. There must be more than mere inference, suppositions or unsupported speculations. Particular facts must be presented that substantiate any allegations of improper conduct and demonstrate that the agency acted with specific and malicious harm to damage the protester. In this case, the protestor offered no convincing proof or even allegations that the solicitation terms favored the awardee. There was no proof offered that the CO or the Contract Administrator were biased. Allegations of bias and bad faith were found to be speculative and unsupported by any facts. This part of the protest was denied.

Technical Evaluation

All quotations were to be evaluated on a pass or fail basis. To be found technically acceptable they only had to comply with the two factors previously noted. The awarded complied with this provision. There was nothing found as being unreasonable in this evaluation element. With regards to the Air Force being required to do a deeper assessment, that objection was also found not to be a valid protest. The Air Force’s evaluation was properly preformed in accordance with the pass/fail methodology. This part of the protest was also denied.

Price Evaluation

In order to conduct a price realism evaluation, a solicitation must note that an agency will be incorporating that into their evaluation process. . “Absent a solicitation provision providing for a price realism evaluation, agencies are neither required nor permitted to conduct one in awarding a fixed-price contract.” The GAO Hearing Officer dismissed this allegation stating that JMark’s objection that a price realism evaluation was not conducted was not a valid basis for a protest.


Not All Past Performances Were Taken Into Account

However, the GAO Hearing Officer found that JMark's  objection to the past performance evaluation had merit. The CPARS assessment used by the CO was not exhaustive and excluded for evaluation two important factors of the solicitation. When a protestor challenges an agency’s evaluation of past performance, the Hearing Officer will determine if the evaluation criteria was reasonable and consistent with the evaluation criteria in the solicitation, the applicable procurement statutes and corresponding regulations.

The CO had only used the CPARS information to conduct the past performance evaluation. The past performance information included in the vendor’s quotations and the information submitted in the PPQs by the vendors were both ignored. The GAO found the Agency’s reliance solely  on the CPARS data  to be “irrational" and  inconsistent with the evaluation terms of the solicitation. The protest was sustained on the grounds that the Air Force had no rational basis to conclude the vendors were equal under the past performance evaluation factors before it conducted the past performance/price tradeoff analysis. The information it based its decision on was insufficient to allow the agency to assess a vendor’s ability to successfully perform the services required.

The GAO Hearing Officer recommended to the Air Force that it conduct and document a new past performance evaluation and tradeoff analysis using all the criteria listed in the solicitation and take into account all the past performance information available to it. JMark was also awarded attorney’s fees and costs for pursuing the protest.

If you have a problem with a government bid and you think your offer was not fairly considered, the attorneys at Whitcomb, Selinsky Law PC are experienced in  helping government contractors with their bid protests.  Please call (303) 543-1958 or complete our online contact form. 

About the AuthorJoe Whitcomb

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