Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
In evaluating a newly formed joint venture’s past performance, an agency may consider the past performance of the individual joint venture partners unless prohibited from doing so by the solicitation.
General Counsel P.C. Highlight:
AES first argues that the awardee’s proposal should have been determined unacceptable because it did not identify a facility or legitimate business address; did not have the necessary personnel and equipment; did not provide information regarding its TSD facility license and EPA license; and failed to provide any information on whether its personnel had commercial driving licenses with hazardous material endorsements. These arguments are meritless.
As noted by the agency, the RFP instructions and technical subfactors did not require offerors to provide information regarding the offeror’s facility; list particular personnel; or provide TSD facility or commercial driving licenses to be deemed technically acceptable. Further, the agency reports, and GAO’s review confirms, that the awardee’s proposal included a list of equipment on hand and to be purchased, as well as a detailed explanation of where such necessary equipment would be located and used during contract performance. Moreover, the awardee indicated in its proposal and during discussions that it was applying for DOT and EPA licenses, which would be in place by the time of contract award, and, as a back-up plan, that its listed subcontractor had DOT and EPA licenses.
AES also challenges the awardee’s satisfactory confidence past performance rating, arguing that it should have received an unknown confidence or no confidence rating because the joint venture had no relevant contracts, and that the awardee’s proposal did not comply with the RFP requirement for the offeror (not the individual partners) to submit past performance information on a minimum of three contracts. GAO examines an agency’s evaluation of past performance to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations; however, the necessary determinations regarding the relative merits of offerors’ proposals are primarily matters within the contracting agency’s discretion. In this regard, GAO will not question an agency’s determinations absent evidence that those determinations are unreasonable or contrary to the stated evaluation criteria. A protester’s mere disagreement with the agency’s judgment does not establish that an evaluation was unreasonable.
GAO finds that the awardee did provide the requisite past performance references with its proposal. In this regard, Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii) directs agencies to take into account past performance information regarding predecessor companies, key personnel, and major subcontractors when such information is relevant to an acquisition. Thus, an agency properly can consider the relevant experience and past performance history of the individual joint venture partners of the prime contractor in evaluating the past performance of a joint venture, so long as doing so is not expressly prohibited by the RFP. The RFP here did not prohibit considering the past performance of individual joint venture partners in evaluating an offeror’s past performance; indeed, the RFP specifically encouraged offerors to provide such information and advised that consideration would be given to the relevant past performance of the joint venture partners. Because at least three past performance references for the joint venture partners were provided in the awardee’s proposal and because it provided sufficient information regarding these referenced contracts on the forms provided in the RFP, the awardee satisfied the RFP requirements.
AES challenges the relevance of the various contracts relied upon by the Air Force in finding the awardee’s past performance to be of satisfactory confidence. GAO’s review of the record shows that the awardee’s contracts determined to be relevant or somewhat relevant in the evaluation involved many of the same activities required under the solicited contracts, such as pumping oil/water and barrel sludge, cleaning oil spills, transporting waste, and storing and disposing of industrial and hazardous waste. While the protester asserts that the awardee’s Power base operation services contract that had been determined relevant by the agency did not involve hazardous waste removal and therefore should not have been considered relevant, the record reflects that the evaluators considered this contract to be relevant because the duties involved maintaining an initial accumulation point for storage and disposal of hazardous waste, and because the company was “providing equipment necessary and an emergency spill plan” for the hazardous waste. Given the discretion vested in the agency in making this judgment, GAO cannot find it unreasonable. The protest is denied.