Pre and Post Award Bid Protest

GAO says Past Performance of Subcontractor was Reasonable

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Can an agency evaluate the past performance of a subcontractor? The GAO took up the bid protest from Hughes Group Solutions, who protested the contract award for transient aircraft/alert services at Kirtland Air Force Base.  The protester contested the awardee's 8(a) status, and also that the agency unreasonably credited the experience and past performance of its subcontractor.

Past Performance More Important

The agency advised that the proposals would be based on past performance and price and the past performance was going to be "significantly more important" than price.  Offerers were to provide a list of not more than 10 contracts and the RFP specifically allowed for the evaluation of subcontractors past performance, if the subcontractor was to perform key elements of the contracts.

G&E was the lowest bidder in response to the proposal and Hughes was fourth lowest.  G&E submitted 10 past performance contracts and one was found to be "very relevant."  Also, one of G&E's subcontractors submitted a "very relevant" past performance contract.  The Agency gave G&E a "substantial confidence" past performance rating and ultimately offered the contract to G&E.  Hughes protested, arguing that G&E was not small and that their 8(a) status was not approved before the award of the contract.

Size Protest Dismissed

The GAO dismissed the "size" complaint on jurisdictional grounds.  The GAO found no grounds for Hughes 8(a) protest, because the solicitation specifically allowed for the use of joint ventures to meet the 8(a) requirements.  Hughes also protested, alleging that G&E had no experience with transient aircraft/alert services and that the Air Force incorrectly evaluated G&E's past performance.  GAO denied that protest ruling:

The evaluation of an offeror’s past performance is within the discretion of the contracting agency, and we will not substitute our judgment for reasonably based past performance ratings. MFM Lamey Group, LLC, B-402377, Mar. 25, 2010, 2010 CPD ¶ 81 at 10. Where a solicitation calls for the evaluation of past performance, we will examine the record to ensure that the evaluation was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. Divakar Techs., Inc., B-402026, Dec. 2, 2009, 2009 CPD ¶ 247 at 5..

The GAO continued that since the RFP specifically allowed for the evaluation of subcontractors past performance, it was reasonable for the Agency to consider C2G's (subcontractor's) past performance.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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