Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied.
Keywords: Past Performance Evaluation
General Counsel P.C. Highlight: Where a solicitation requires the evaluation of offerors’ past performance, it will examine an agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria. While a solicitation may specify the time frame for references an offeror may submit regarding past performance, such a limitation does not imply a limitation on the agency’s evaluation of past performance.
Bannum, Inc. protests the award of a contract by the Department of Justice, Bureau of Prisons (BoP), under a request for proposals (RFP), for residential reentry center services for federal offenders.
The BoP issued the RFP, seeking proposals to provide services under an indefinite-delivery/indefinite-quantity (ID/IQ) contract at daily per-inmate fixed prices for a base year and three option years. The RFP provided that proposals would be evaluated under three factors: past performance, technical/management, and price. The RFP specified that the past performance evaluation would consider the offeror’s probability of successfully performing the contract based on its record of performance on relevant current and past contract efforts. The RFP emphasized that in the past performance evaluation, more recent and more relevant past performance would have a greater impact than less recent and less relevant performance. However, the RFP also noted that “where [a] relevant performance record indicates performance problems, the Government will consider the number and severity of the problems and the appropriateness and effectiveness of any corrective actions taken (not just planned or promised).”
In a report, the BoP evaluators presented the results of the past performance evaluation. For Bannum, the evaluators considered each of the referenced contracts, and provided a narrative discussion of numerous strengths and weaknesses of the firm’s past performance, and made a determination about the relevance of each referenced contract. Based on the detailed evaluation, the evaluators rated Bannum’s overall past performance as “Green-Acceptable.” However, the evaluation report continued by describing an “Additional Consideration” for Bannum: the default termination of a contract for comprehensive sanctions center services in Austin, Texas. Bannum also had a higher price than the other considered offeror. Bannum was not awarded the contract.
Bannum argues that its past performance should have been rated as “Blue-Outstanding,” and that this higher rating would have justified a tradeoff in its favor. GAO states that where a solicitation requires the evaluation of offerors’ past performance, it will examine an agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria, since determining the relative merits of offerors’ past performance information is primarily a matter within the contracting agency’s discretion. While a solicitation may specify the time frame for references an offeror may submit regarding past performance, such a limitation does not imply a limitation on the agency’s evaluation of past performance. More generally, an offeror’s mere disagreement with the agency’s assessment of its past performance, or the merits of its proposal relative to others, does not render the source selection unreasonable.
Although the RFP instructed offerors to submit past performance references that had occurred in the preceding three years (which at the time of Bannum’s past performance proposal in June 2008 could have included the 2007 default termination), Bannum points to no limitation on the BoP’s consideration of relevant past performance that was beyond that time, either in the RFP or by statute or regulation. Rather, the RFP description of the past performance evaluation merely indicated that more weight would be given to more recent experience. It did not foreclose consideration of older (or, for that matter, more recent) performance than the offeror had submitted. In short, Bannum has not shown that the BoP’s evaluation was unreasonable or contrary to the terms of the RFP. The protest is denied.