Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest denied.
Keywords: Past Performance
General Counsel P.C. Highlight: The contracting agency has the discretion to determine the relevance and scope of the performance history to be considered, and GAO will not question the agency’s judgment unless it is unreasonable or inconsistent with the terms of the solicitation
Commissioning Solutions Global, LLC (CommSol) protests the award of a contract issued by the Department of Homeland Security, United States Coast Guard, under a request for quotations (RFQ) for dry dock repairs of the Coast Guard Cutter Tornado.
The RFQ, issued as a total small business set-aside, provided for the award of a fixed-price contract in accordance with Federal Acquisition Regulation (FAR) Subpart 13.5 “Test Program for Commercial Items.” The RFQ stated that award would be made on a best value basis, considering past performance and price, and that the past performance factor was significantly more important than price.
With respect to the past performance factor, vendors were required to identify “at least two relevant (construction, overhaul, repair, and alteration of ships) federal, state or local government or private contracts” performed during the last three years. The RFQ explained that the past performance evaluation would take into account the guidelines outlined at FAR § 15.305(a)(2) Past Performance Evaluation, and further provided that past performance would be evaluated for quality of product or service, timeliness of performance, business relations, and subcontracts. In addition to reviewing the information provided by the vendors, the RFQ stated that the government intended to review Coast Guard contractor performance reports and other existing past performance ratings on relevant contracts.
CommSol’s quotation listed 31 projects and the list included two contracts for dry dock work: one in 2006 valued at $35,546 and another in 2010 valued at $500,000. The list also included two contracts with the Coast Guard in 2006 for flushing a main diesel engine and the flushing of a reduction gear, valued at $94,544 and $115,612, respectively. Finally, the list included a 2010 contract valued at $89,986 for the hot flushing of a main diesel engine, for which CommSol identified as its contact person the contract specialist for this solicitation.
With regard to these contracts, the Coast Guard relied on prior attempts to contact the identified references during another acquisition in 2009; neither reference provided any past performance information to the Coast Guard. The first reference informed the agency that “I don’t recall the performance by this vendor and this [purchase order] file is no longer located in this area.” The second reference stated that she would send information via email, but the record indicated she failed to do so. With regard to the 2010 dry dock repairs contract, the Coast Guard noted that this contract was terminated for default.
CommSol challenges the Coast Guard’s evaluation of its past performance, arguing variously that the Coast Guard applied unstated evaluation criteria, improperly determined that CommSol’s past performance references were not relevant to the current acquisition, relied on inaccurate past performance information, and did not make reasonable efforts to contact CommSol’s references. GAO states that where, as here, a solicitation contemplates the evaluation of vendors’ past performance, the contracting agency has the discretion to determine the relevance and scope of the performance history to be considered, and GAO will not question the agency’s judgment unless it is unreasonable or inconsistent with the terms of the solicitation or applicable procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment does not establish that an evaluation was unreasonable.
GAO disagrees with CommSol’s apparent belief that the Coast Guard was limited to determining whether a firm had identified two relevant contracts. As noted above, the RFQ provided for a qualitative assessment of vendors’ past performance, and instructed vendors to identify “at least” two relevant contracts in the past three years. To the extent that CommSol is complaining that the RFQ did not specifically state that the agency might credit a vendor for having a number of relevant contracts, we think such a consideration would be logically encompassed by or related to considering the quality of the vendor’s past performance.
The record also shows that CommSol’s identified past performance was not of similar size, scope and complexity to the work solicited here. Although some of the identified work appears to be for tasks that would be part of the overall dry dock work, none of these smaller contracts is for the range of tasks comprising the dry dock work under this RFQ. GAO finds that the Coast Guard reasonably concluded that CommSol’s contracts were not relevant. The protest is denied.