Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, May 22, 2013, 8:05am EST
FN Manufacturing LLC, B-407936, -.2, -.3, April 19, 2013
Contractors submitting proposals on federal procurements are generally responsible for submitting their best offer, including all relevant information to that procurement. While there may be situations where an agency will have an obligation to consider information not included in an offeror’s proposal, such as where the agency has direct knowledge of a contractor’s past performance history, such situations are extremely limited. Agencies are generally required to only consider information provided in an offeror’s proposal. Offerors should not assume an agency will consider information outside a proposal, even if such information is relatively easily accessible to the agency.
This principle was demonstrated recently in the protest of FN Manufacturing LLC. In the protested procurement, the solicitation required offerors to submit past performance information for up to three contracts or delivery orders. The protester, FN Manufacturing LLC (FNM) submitted three past performance efforts with its proposal, which were evaluated by the agency. The agency’s evaluation personnel were also directed to obtain additional information regarding FNM’s past performance. Agency personnel were able to identify additional delivery orders that were relevant to the subject procurement, however even after checking three different government databases, the agency personnel were unable to verify that FNM actually delivered under those orders.
During its evaluation of past performance, the most important evaluation factor of this procurement, the agency determined that the awardee’s past performance was slightly better than that of FNM. As a result, the awardee was selected for contract award. FNM filed its protest with GAO, challenging the agency’s evaluation of its past performance. FNM argued that the agency unreasonably failed to obtain delivery information for the additional delivery orders, asserting that the agency should have contacted the actual contracting officials in charge of administering the additional delivery orders identified by agency personnel.
GAO rejected this argument, declining to shift responsibility to the agency for finding information from another contract that FNM could have easily included in its proposal. GAO stated that there is no basis to require agencies to take additional steps to ascertain the relevance of past performance information that was not included in an offeror’s proposal. As a result, GAO denied the protest.