Link: GAO Opinion
Agency: Department of the Interior
Disposition: Protest denied.
Keywords: Past Performance
General Counsel P.C. Highlight: An agency is not generally precluded from considering any relevant past performance information, regardless of its source, and, in fact, in some circumstances has an affirmative obligation to consider past performance information that is “close at hand” and reasonably known to the evaluators.
Bulltrack-Watts II, Joint Venture, (BTW) protests the award of a contract under a request for proposals (RFP), issued by the Department of the Interior, for a wastewater treatment system. After an initial protest, corrective action, and new award decision, the Agency made an award to an offeror found to be technically superior to BTW but who offered a higher price than BTW. BTW protested that determination.
BTW protests, among other issues, the agency’s evaluation of its past performance — complaining that Interior considered projects other than those BTW identified in its proposal for its past performance evaluation. GAO finds that Interior, in its evaluation of offerors’ past performance, was not limited to considering only the projects that the offerors identified for their past performance evaluation, but could reasonably consider other past performance information. In this regard, the RFP specifically informed offerors that the agency may contact references or use sources other than those provided by the offeror. GAO states that where a solicitation contemplates the evaluation of performance, the agency has the discretion to determine the scope of the performance history to be considered provided all proposals are evaluated on the same basis and the evaluation is consistent with the terms of the RFP. In this regard, an agency is not generally precluded from considering any relevant past performance information, regardless of its source, and, in fact, in some circumstances has an affirmative obligation to consider past performance information that is “close at hand.” The agency’s consideration of BTW’s other projects indicated varying quality assessments, which would not indicate excellent past performance, as this rating was defined by the agency. Moreover, the CO had personal knowledge of one of BTW’s additional projects, for which the CO found BTW had some negative performance issues. The protest is denied.