Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Past Performance Evaluation
General Counsel P.C. Highlight: An agency’s past performance evaluation may be based on a reasonable perception of a contractor’s prior performance, regardless of whether that contractor, or another offeror, disputes the agency’s interpretation of the underlying facts, the significance of those facts, or the significance of corrective actions.
CMJR, LLC d/b/a Mokatron (Mokatron) protests the award of a contract under a request for proposals (RFP), issued by the Department of the Air Force for the operation and maintenance of the March Air Reserve Base telecommunication system.
The RFP, which was set aside for service-disabled veteran-owned small businesses, provided for the award of a fixed-price indefinite-delivery/indefinite-quantity (ID/IQ) contract for a five-month base period and up to five years of performance, including options. The RFP established three evaluation factors: technical, present/past performance, and price. For those proposals that were technically acceptable, the source selection decision would be based on a tradeoff between present/past performance and price, with those two factors being of approximately equal importance. With respect to the present/past performance factor, the RFP required offerors to provide past performance information on up to 10 recent contracts (those that were currently being performed or had been performed within three years of the date the solicitation was issued) that demonstrated the offeror’s ability to perform under the proposed contract. The RFP also provided that a new corporate entity could submit data on prior contracts involving its officers, employees, and key personnel who have relevant experience. The RFP provided that each present/past performance proposal would receive an integrated performance confidence assessment, which reflected the degree of confidence the agency had in the offeror’s ability to perform the required services to meet the agency’s needs.
In its proposal, Mokatron stated that it was founded in November 2009, and that it consisted of three members: the president of a company called Newcom Telephone Company (NTC); the owner of another company, Definitive Voice and Data, Inc. (Definitive); and the president of a construction firm, Harris and Associates. Mokatron identified seven contracts for review, three performed by NTC and four performed by Definitive. With regard to one of the NTC contracts, Mokatron’s proposal noted that NTC had received a contract discrepancy report for failing to complete a project on time. A performance confidence assessment group (PCAG) reviewed the seven contracts submitted by Mokatron and determined that only two of the NTC contracts and two of the Definitive contracts were recent. Of those four, the agency concluded that neither of the Definitive contracts were relevant, that only one of the NTC contracts was relevant, and that the other NTC contract was somewhat relevant.
Next, the PCAG assessed Mokatron’s quality of performance by reviewing the CPARs for the two recent, relevant/somewhat relevant NTC contracts. In performing this review, the PCAG concluded that the specific narrative description of NTC’s past performance in the CPARs reflected greater risk, and lower adjectival ratings than was reflected in the ratings assigned by the initial assessing official. The PCAG also reviewed the contract discrepancy report NTC received in connection with its failure to complete work on time on the relevant contract. The PCAG further reviewed the pre-award surveys that had been performed for Mokatron, NTC, and Definitive as part of its confidence assessment. The surveys focused on the technical and financial aspects of the firms. Mokatron’s pre-award survey noted that the overall viability of the firm was high risk because it was a “‘start-up’ company, with no historical financial statements, no performance history, and no production activity.” The pre-award survey nevertheless recommended award to Mokatron because NTC provided a corporate guarantee agreement on behalf of Mokatron. Based on the evaluation, the PCAG rated Mokatron’s proposal as limited confidence under the present/past performance factor.
The source selection authority (SSA), who was also the contracting officer, reviewed each offeror’s performance information, including the past performance proposals, the CPARs, the pre-award surveys, and the PCAG assessment. With regard to Mokatron, the SSA reviewed the CPARs from the two NTC contracts, specifically noting the initial assessing official’s ratings, the recommendations for performance improvement, NTC’s failure to timely complete a prior project leading to a contract discrepancy report, and the corrective actions NTC had undertaken.
With regard to the awardee, the SSA assigned its present/past performance proposal a substantial confidence rating. The SSA conducted a performance/price tradeoff and selected the awardee’s higher-rated, higher-priced proposal for award.
The protester challenges the agency’s evaluation under the present/past performance factor. More specifically, Mokatron contends that the Air Force unfairly discounted its status as a new corporate entity, failed to properly evaluate its CPARs, and failed to consider the corrective action it had undertaken. An agency’s past performance evaluation may be based on a reasonable perception of a contractor’s prior performance, regardless of whether that contractor, or another offeror, disputes the agency’s interpretation of the underlying facts, the significance of those facts, or the significance of corrective actions. A protester’s mere disagreement with the agency’s judgment is not sufficient to establish that the agency acted unreasonably.
Mokatron first contends that it was unreasonable for the Air Force to assign its proposal a limited confidence rating under the present/past performance factor “based on the sole fact” that Mokatron is a newly formed entity. Mokatron further complains that the agency “entirely discounted” the performance history of its key personnel. Here, contrary to Mokatron’s assertion that the rating was “based on the sole fact” that Mokatron is a newly formed entity, the record shows the agency based its final assessment on multiple sources of information, including the offeror’s present/past performance proposal, the CPARs, the PCAG evaluation, and the pre-award surveys.
Based on GAO’s review of the record, GAO rejects the protester’s assertion that the Air Force based Mokatron’s past performance rating on the “sole fact” that Mokatron was a newly formed entity, or that it “entirely discounted” the performance history of its key personnel. To the contrary, the bulk of Mokatron’s evaluation related to NTC’s prior contracts, showing that the agency gave Mokatron credit for its members’ performance despite being a new corporate entity. Similarly, the record shows that in reaching the limited confidence rating decision, the SSA considered multiple sources of information. Mokatron’s assertions in this regard are without merit.
Finally, Mokatron argues that the PCAG’s present/past performance evaluation was improper for failing to accept the adjectival ratings contained in the CPARS that were reviewed. Mokatron further contends that the PCAG’s evaluation unfairly emphasized negative past performance, did not reflect an “independent investigation,” and was otherwise “arbitrary and capricious.” GAO states that an evaluating official may properly look behind an adjectival rating to determine the relative strengths or weaknesses that the rating reflects. Further, an agency has broad discretion to determine the manner and extent to which it will rely on summary ratings and the written narratives underlying such ratings.
As noted above, the PCAG concluded that the CPARs’ narrative descriptions of NTC’s past performance properly reflected greater risk and lower adjectival ratings than the ratings assigned by the initial assessing official. In this regard, the PCAG relied on specifically identified aspects of NTC’s prior performance that were discussed in the CPARs. Based on GAO’s review of the record, GAO finds no basis to question the reasonableness of the PCAG’s evaluation. The protest is denied.