GAO: AGENCY FAILS TO DOCUMENT AND SUPPORT ITS EVALUATION OF PAST PERFORMANCE; PROTEST SUSTAINED!
by Jack Delman, Retired Judge
In Starlight Corp., 2022 CPD 65, 2022 WL 912078 (3/14/22) the GAO sustained a post award protest on the grounds that the Agency failed to adequately document its evaluation of “relevancy” as it related to past performance, and improperly reduced the protester’s rating on a past performance questionnaire (PPQ) submitted by a customer.
The Air Force (AF or Agency) issued a solicitation that was set aside for small business for aircraft washing and related aircraft cleaning services. The solicitation called for the award of a single, fixed priced contract with a base period and options. It required that the Agency evaluate past performance, price and technical factors, with past performance significantly more important than price. As for past performance, the RFP required the Agency to review the sub-factors of recency, relevance and quality of past performance in order to determine an overall past performance confidence assessment rating. Per the solicitation, “relevancy” was generally defined as past contract efforts that were similar to the subject procurement in terms of scope, complexity, dollar value and the extent of subcontracting/teaming.
Four offerors submitted proposals, including Starlight and Empire Aircraft Services (Empire). After evaluating the offers and without holding discussions, the AF awarded the contract to Empire. Starlight filed a protest with the GAO, challenging the Agency’s evaluation. The AF advised the GAO that it would reevaluate proposals and make a new source selection decision, and the GAO dismissed the protest.
As part of the reevaluation process, the AF requested final proposal revisions from the offerors. Insofar as pertinent here, the proposals of Starlight and Empire were technically acceptable. Empire obtained a higher past performance rating than Starlight, but Empire’s proposed price was higher than that of Starlight. The Agency determined that Empire represented “best value” to the government and again awarded the contract to Empire. Starlight refiled its protest with the GAO.
The Protester’s Contentions
Starlight contended that with respect to Empire’s past performance evaluation, there was no evidence in the record to support the AF’s findings that Empire’s past performance contract references were “relevant”, i.e., there was no evidence that the AF considered the similarity of scope, complexity, dollar value, etc. of the prior contracts in accordance with solicitation requirements. The AF disagreed, contending that the Agency’s evaluation was thorough and reasonable.
The GAO Rules
The GAO agreed with the protester. It noted that the government’s Source Selection Evaluation Board report merely included a conclusory notation that prior contract references were “relevant” but failed to explain or support this conclusion. The report failed to address in writing the underlying factors (similarity of scope, complexity, dollar value, etc.) that needed to be considered under the solicitation in order to assess relevance. The GAO held that the AF’s evaluation was not adequately documented to allow GAO to determine the reasonableness of the Agency’s evaluation. Accordingly, it sustained the protest.
The GAO also found that the AF improperly downgraded a Starlight PPQ from one of its customers in support of its past performance. The “March PPQ” was downgraded because it lacked a customer narrative supporting the customer’s rating. However, neither the contract nor the questionnaire required such a narrative. The protest was also sustained on this basis.
The GAO also concluded that the protester demonstrated a reasonable possibility of competitive prejudice caused by the government’s improper actions. The GAO recommended that the AF reevaluate the proposals, adequately documenting the rationale for its ratings; make a new source selection decision and reimburse the protester for costs and reasonable attorneys’ fees to pursue the protest.
This case is one of a number of cases that chides the government for its failure to provide a meaningful, contemporaneous record to support and explain its evaluations. The government’s failure to provide such support creates confusion and suspicion that offerors are not being treated fairly, and inevitably leads to protests and procurement delay as was the case here.