Bid Protest Weekly | BID PROTEST LAWYERS

TestVonics, Inc., B-406700.3, December 4, 2012

Link: GAO Decision

Protestor: TestVonics, Inc.

Agency: Department of the Air Force

Disposition: Protest Denied.


GAO Digest:

Protest that agency unreasonably and unfairly evaluated the past performance of the protester and awardee is denied where record shows that agency’s evaluation was reasonable, consistent with the terms of the solicitation, and not the result of unequal treatment.

General Counsel PC Highlight:

TestVonics, Inc. protested the award to Custom Manufacturing and Engineering, Inc. (CME) of a contract for a quantity of flight control system test sets. The RFP, issued as a small business set aside under FAR Part 12, provided for award on a best value basis considering price and seven non-price factors. The agency would make award using a “technically acceptable-risk/performance/price tradeoff” process, whereby the agency would first determine which of the proposals submitted were technically acceptable; once the agency determined which proposals were technically acceptable, it would conduct a tradeoff between technical risk, past and present performance, and cost/price. Several concerns filed size protests after an initial award to CME; once CME was determined to be small, TestVonics filed a protest with the GAO. The agency took corrective action, reevaluating proposals in the past and present performance area, and again made award to CME.

The GAO found no merit to TestVonic’s allegations relating to the agency’s evaluation of proposals under the past/present performance factor. For example, it found reasonable the agency’s assessment of one contract as relevant because, although the magnitude of the past performance would have resulted in a rating of very relevant, it involved the design and manufacture of units over the weight limit for very relevant contracts. The GAO disagreed that the agency treated TestVonic and CME unequally in considering their respective past performance questionnaires, pointing out that, with respect to all offerors, the agency attempted to make contact with the identified point of contact in every instance in which it did not receive a questionnaire in connection with a past/present performance reference. Finally, the GAO rejected TestVonic’s protests of its technical risk rating and the agency’s alleged failure to conduct a price realism analysis, on the grounds that they failed to state a valid basis for protest.

The evaluation of past performance is a matter of agency discretion, and the GAO is unlikely to disturb that evaluation unless it is unreasonable or inconsistent with the terms of the solicitation. Where the solicitation provides clear criteria as to magnitude, complexity, and scope of past performance that the agency will consider in determining whether the experience is very relevant, offerors should strive to provide contracts that meet each of those criteria. If the solicitation provides for the consideration of subcontractors’ past performance, an experienced teaming partner can boost the attractiveness of your proposal.