Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest sustained.
Keywords: Past Performance
General Counsel P.C. Highlight: The evaluation of an offeror’s past performance is within the discretion of the contracting agency, and GAO will not substitute its judgment for reasonably based past performance ratings.
Contrack International, Inc. protests the award of a contract to Zafer Contracting Construction and Trade Company, Inc. (Zafer), under a request for proposals (RFP), issued by the Department of the Army, for the design and construction of an ammunition supply point. The RFP provided for the evaluation of proposals on a “best value” basis looking at experience, past performance, project management plan, and price.
Zafer’s original proposal was higher-rated and lower-priced and therefore, the best value to the government. Contrack challenged the evaluation of its and Zafer’s past performance, asserting that the Army failed to consider adverse performance information regarding Zafer’s past construction projects. The Army decided to take corrective action by amending the RFP to allow revised proposals. Contrack’s revised proposal, evaluated by a newly appointed SSEB, was rated satisfactory under the past performance factor and Zafer’s revised proposal received the same excellent evaluation rating under past performance as its initial proposal.
GAO stated that the evaluation of an offeror’s past performance is within the discretion of the contracting agency, and GAO will not substitute its judgment for reasonably based past performance ratings. The critical question is whether the evaluation was conducted fairly, reasonably, and in accordance with the solicitation’s evaluation scheme, and whether it was based on relevant information sufficient to make a reasonable determination of the offeror’s past performance, including relevant information close at hand or known by the contracting personnel.
Where, as here, the record showed that Zafer’s excellent past performance rating was primarily based upon two performance ratings for projects, but three reports provided overall ratings of satisfactory or marginal, and indicated that Zafer had a number of performance problems, GAO found that the Army’s past performance evaluation did not meet the standard discussed above. The Army made no effort to investigate the merits of the negative reports. GAO stated that it has no basis to find reasonable the Army’s assessment of an excellent rating for Zafer under the past performance factor and sustained Contrack’s protest on that basis.