Link: GAO Decision
Protestor: Arcus Properties, LLC
Agency: Department of the Air Force
Disposition: Protest Denied.
- On a procurement involving the privatization of military family housing, agency was not required to point out adverse past performance on a prior contract because the issue had been previously brought to the offeror’s attention during the performance of that contract.
- Agency is not required to disclose evaluation standards or guidelines for rating proposal features as more desirable or less desirable, since agencies are not required to inform offerors of their specific rating methodology.
- Agency evaluation of protester’s proposal, which had an evaluated strength, as acceptable rather than exceptional under a subfactor was reasonable and consistent with the solicitation’s evaluation scheme
General Counsel PC Highlight:
Arcus Properties, LLC protested the selection of Balfour Beatty Communities LLC to enter into negotiations for a business arrangement to privatize military family housing at two Air Force installations. The RFP contemplated the selection of a proposal that is most advantageous to the government to finance, plan, design, construct, manage, and operate a military housing privatization initiative project. Proposals would be evaluated, and the highest ranked offeror would then enter into exclusive negotiations with the government resulting in a business arrangement.
The GAO first disagreed with Arcus that the agency was required to conduct discussions regarding adverse past performance information pursuant to FAR § 15.306(d)(3), pointing out that this procurement was not subject to the FAR. It noted that an Arcus affiliate had been provided the negative past performance report, that affiliate provided detailed responses to the adverse past performance, and that Arcus addressed the adverse past performance in its proposal. The GAO then disagreed with Arcus’ argument that the benchmarks used to determine strengths were unstated evaluation criteria, instead finding them to be evaluation standards which the agency was not required to disclose. Finally, the GAO found reasonable the agency’s conclusion that Arcus’ proposal, with no deficiencies and one strength, warranted a green/acceptable rating on the project financial viability and sustainability subfactor, rather than a blue/exceptional rating.
In making an offer in a procurement conducted through alternative procurement programs or under special legislative authority, offerors must remember that they may not be subject to all the provisions of the FAR. Certain rights, such as the right to respond to adverse information in discussions, may not be available in these procurements.