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Experience and Past Performance Factors: Technically Acceptable When Essentially Absent

Posted by Joseph Whitcomb on Dec 22, 2014 10:05:20 AM
Joseph Whitcomb

It appears that no past performance and old experience can still rise to the level of "technically acceptable."

Recently, the Government Accountability Office (“GAO”) returned from the Labor Day Holiday to determine whether the Department of the Army properly picked its role play partner. The Army’s Request for Proposals (“RFP”) sought offers to provide civilians the chance to perform battlefield role-player services for military exercises. The Army’s RFP stated that it would award the contract to the lowest-priced, technically acceptable offeror. As is typical in the world of government procurement, nothing is quite that simple.

Calling all Bidders…The RFP

The RFP included two non-price evaluation factors: technical and past performance. The technical factors included four sub-factors and required that the offerors obtain at least an “acceptable” rating under each sub-factor in order for the Army to consider the offer. Most relevantly, the fourth factor was experience. Under the past performance factor, the Army’s RFP advised that it would evaluate the bidder’s recent and relevant former contracts. The RFP defined “recent contracts” as contracts within the past three years and “relevant contracts” as role-playing service contracts. Where the bidder had no record of past performance, the RFP stated that the Army would consider the bidder’s score as acceptable.

Pick Me…the Proposals

The Department received a number of proposals in response to its solicitation. SST Supply and Service Team (“SST”) and Optronic were included among the bidders. Optronic was the lowest priced. With respect to the past performance sub-factor, the Army determined that Optronic merited merely an acceptable rating because it had not performed relevant work within the past three years. The Army also gave Optronic an acceptable rating for the experience sub-factor based on Optronic’s two prior contracts with essentially the same requirements (those contracts were between 2000-2003 and 2003-2006).

The Decision…and the Contest

On the basis of these ratings and Optronic’s low bid, the Army awarded the contract to Optronic, finding it the technically acceptable lowest bidder. Not happy with its loss, SST promptly filed a bid protest. SST complained primarily because it believed the Army acted unreasonably when it credited Optronic with acceptable ratings in both the experience and past performance sub-factors.

SST argued that the Army should not have considered Optronic’s prior contracts as the basis for its experience score. Unfortunately for SST, the GAO disagreed. The GAO points out that, although the past performance sub-factor required that the contractor finish the previous work within the past three years, the experience sub-factor does not specify a time period. The GAO pointed out (as it often does) that it serves to oversee that the Agency follows the process; not to determine whether the Agency made the correct choice. Here, since the GAO found that since the Agency did not violate the RFP, its decision to find Optronic "technically acceptable" was not improper.

SST next argued that the Army should have considered Optronic’s poor past performance (which occurred within a period from approximately 2005-2009) in determining Optronic’s Past Performance score. Once again, the GAO looked at the details in the RFP. Since SST’s alleged poor performance occurred outside of the three-year timeframe, the GAO concluded that the Army did not act improperly in deciding not to factor those incidents into Optronic’s score. Thus, the GAO denied SST’s protest.

Your Bid…or Protest

Whether your company specializes in wartime role-playing or more traditional contracting work, the experienced attorneys at Whitcomb Law, P.C. can help you protect your rights.

Topics: Government Contracting