Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
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GAO Digest:
1. Protest that awardee’s proposal was technically unacceptable under solicitation’s relevant experience factor is denied where record reflects that portion of awardee’s proposal relating to solicitation’s past performance factor contained, and agency reasonably considered, information demonstrating technical acceptability under relevant experience factor.
2. Protest that agency improperly considered awardee’s performance of subcontract to determine technical acceptability under relevant experience factor is denied where record reflects that awardee’s proposal was technically acceptable under relevant experience factor regardless of whether subcontract was considered.
General Counsel P.C. Highlight:
Excalibur asserts that the agency unreasonably determined the awardee’s proposal to be technically acceptable under the relevant experience factor because the relevant experience section of the awardee’s proposal did not describe the type of work that the awardee performed under a Navy contract, and therefore was not technically acceptable. GAO states that as a general matter, the evaluation of an offeror’s experience and past performance is within the discretion of the contracting agency, and GAO will not substitute our judgment for reasonably based evaluation ratings. Where a protester challenges an evaluation and source selection, GAO will review the evaluation and award decision to determine if they were reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations, and to ensure that the agency’s rationale is adequately documented. The evaluation of experience and past performance, by its very nature, is subjective; an offeror’s mere disagreement with the agency’s evaluation judgments does not demonstrate that those judgments are unreasonable.
GAO agrees that the relevant experience section of the awardee’s proposal does not describe the type of work that the awardee performed under the Navy contract. The past performance section of the awardee’s proposal, however, provides a detailed description of the work that the awardee performed under each of the contracts listed in the relevant experience section, including the Navy contract. A bid or proposal submitted to the government is properly evaluated by reading the bid or proposal as a whole. GAO sees no solicitation provision–and Excalibur has cited to none–that would have precluded the agency from considering information in the past performance section of an offeror’s proposal for purposes of evaluating the offeror’s technical acceptability under the relevant experience factor. This ground of protest is denied.
Excalibur also challenges the agency’s consideration of the awardee’s performance of an Army subcontract. Excalibur presents two bases for this challenge. First, Excalibur asserts that the Army subcontract is not relevant because the awardee performed the work as a subcontractor, rather than as a prime contractor. Second, Excalibur asserts that the contracting officer’s verification that the awardee performed washer and dryer services under the subcontract was improper because this information was beyond the “four corners” of the awardee’s proposal and because at the time of the verification, the prime contractor point of contact allegedly had become an employee of the awardee.
The solicitation provided that the relevant experience criteria would be met through the listing of “at least one,” but no more than five, relevant contracts. Accordingly, GAO need not consider Excalibur’s allegations regarding the Army subcontract because the record shows that the agency reasonably could, and apparently did, determine the awardee’s proposal to be technically acceptable under the relevant experience factor on the basis of the Navy contract alone. Thus, to the extent that the agency considered the Army subcontract, such consideration did not prejudice Excalibur. Prejudice is an essential element of every viable protest; GAO will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions. The protest is denied.