Agency: Federal Bureau of Prisons
Keywords: Past performance; Default termination
General Counsel P.C. Highlight: Agencies are given significant deference in their past performance evaluations. In evaluating past performance, an agency cannot ignore otherwise relevant past performance simply because the circumstances surrounding a previously terminated contract might not re-occur in the new contract.
Bannum, Inc. challenged a contract award by the Federal Bureau of Prisons (BOP) to Dismas Charities, Inc. for Residential Reentry Center services in Charleston, WV. In the initial evaluation and reevaluation following a sustained protest by the GAO, the BOP selected Dismas as the best value offeror. Following a second protest by Bannum, which was denied by the GAO, Bannum filed an action with the Court of Federal Claims seeking declaratory and injunctive relief. The Court has jurisdiction to review pre- and post-award bid protests pursuant to the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996. Due to the high level of deference paid to procurement officials by the Court, a disappointed bidder must demonstrate that there was no rational basis for an agency’s decision.
The BOP based its award decision on Dismas’ better ratings in the evaluation factors of Past Performance and Technical/Management, the evaluation of which Bannum challenged. Bannum’s Past Performance rating was in part due to the BOP’s default termination of another Bannum contract for RRC services in Austin, TX, which Bannum claims was a unique situation and not determinative for this evaluation. Bannum also alleges that the BOP did not properly evaluate three of the five factors comprising Technical/Management Rating.
First, with regard to the Austin default termination, the Court determined that it is reasonable for an agency to consider an offeror’s default termination for relevant services in the agency’s past performance evaluation of a new proposal from the same offeror. This conclusion was supported by repeated reference to the Court’s continued deference to the contracting agency’s decision, and reinforced by the fact that Bannum failed to demonstrate why the BOP’s judgment was so unreasonable or contrary to law, merely that Bannum disagreed with the reasoning. Not only was the BOP’s consideration of the Austin default termination reasonable, it was legally required. The Federal Acquisition Regulation (FAR) requires an agency to consider information obtained from all sources, even information not supplied by the offerors, in evaluating past performance. Thus, FAR 15.305(a)(2)(ii) obligated the BOP to consider Bannum’s Austin performance along with the five other contracts that Bannum identified.
Bannum also asserted that its incumbent Charleston contract should have received a higher rating than it was awarded. Again, the Court pointed to the fact that Bannum did not demonstrate that the BOP was unreasonable in its rating, but merely that it disagreed. Bannum was informed from the start that only five of the six possible past performance evaluation criteria in the contractor evaluation forms would be used, and thus is without grounds to challenge the past performance evaluation process in a post-award protest. Moreover, Bannum did not prove that there was a substantial chance that it would have received the contract award if not for the BOP’s alleged errors in the past performance evaluation.
Finally, Bannum claimed that the BOP conducted an improper “best value” determination because, according to Bannum, its proposal was technically equal to Dismas’, and because Bannum offered its services at a lower price, its proposal should have been found to be the best value to the Government. The Court again found Bannum’s argument flawed because the proposals were not found to be equal. In arriving at this conclusion, the Court points to the FAR which describes the “best value determination” as a trade-off process – “appropriate when it may be in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror” (FAR 15.101-1(a). Deferring to the BOP’s determination, the Court again chose not to disturb the award to Dismas.
As such, the Court concluded that the BOP conducted a reasonable evaluation in awarding Dismas, and that Bannum’s motion for judgment on the Administrative Record was denied.