Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protests denied.
Protest that agency’s evaluation unreasonably ignored awardee’s poor past performance record under predecessor contract is denied where positive evaluation of awardee’s past performance record was supported by underlying contract performance assessments and by agency’s explanation of alleged negative information and of basis for changes to performance review assessments.
General Counsel P.C. Highlight:
GFS asserts that the agency’s evaluation of Chugach’s past performance as excellent was unreasonable because it ignored the poor performance of the awardee’s sister company on the predecessor change of occupancy maintenance (COOM) contract in Guam. Specifically, GFS asserts that Chugach has repeatedly performed its work late and has regularly requested extensions of renovation completion dates (RCD). GAO states that it will review an agency’s past performance evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. A protester’s mere disagreement with the agency’s judgment is not sufficient to establish that the agency’s evaluation was unreasonable.
In support of its allegations of late performance, GFS has submitted e-mails and RCD schedules from June, July, August, September, November, and December 2008, and January, February, March, and June 2009, reflecting requests for changes in RCDs. However, apart from GFS’s opinion as a competing contractor and its identification of RCD changes and requests for changes, nothing in the e-mails or schedule changes indicate that the majority–if any–of the change requests were due to performance problems on Chugach’s part. For example, the agency explains that the majority of change requests in March 2009 were due to the unavailability of government inspectors, who were in training. Although the agency does not specifically account for each RCD change, it explains that other changes were due to issues such as supply shortages, lack of funds, additional work ordered around the time of the original RCD, and failure of tenants to move out on time. In this regard, the e-mails indicate that a number of requests for RCD changes (from June through September 2008) were attributable to flooring issues, including delays in delivery of carpet and ceramic tile which apparently were not Chugach’s fault. The record shows that overall, the agency has been satisfied with Chugach’s performance, as evidenced by monthly performance assessment summaries from July 2008 through June 2009, which reflect very good to excellent ratings for Chugach’s COOM work. Since the record shows that the agency was fully aware of the RCD changes under Chugach’s contract and, as explained by the agency, the changes in RCDs have not been due to Chugach’s poor performance, there is no basis for us to question Chugach’s past performance evaluation.
GFS asserts that the agency improperly evaluated its proposal under the past performance and experience factors by using a “trend” method, i.e., an offeror was required to have at least three past performance/experience references in order to be rated above good. In this regard, GFS had only one relevant past performance reference and, while it reflected an overall rating of very good, the agency only rated its proposal good under the past performance factor and satisfactory under the experience factor. According to GFS, had it known of the agency’s methodology, it would have teamed with another contractor in order to have more past performance/experience references. The agency explains that, while it looked at trends in offerors’ past performance, it in fact did not require a minimum number of past performance references for an offeror to achieve a particular score. GAO finds that it need not resolve this issue because the record shows that GFS was not competitively prejudiced by any alleged evaluation error. In this regard, even if GFS prevailed on this protest ground and its technical ratings were increased to excellent under both the past performance and experience factors, its rating would be excellent overall, the same as Chugach’s, and its proposed price would remain more than $7 million higher than Chugach’s. With price and technical factors being equal, there is no reasonable possibility that GFS’s higher-priced proposal would have been selected for award. Prejudice is an essential element of every viable protest; thus, where, as here, the agency’s allegedly improper actions did not affect the protester’s chances of receiving the award, the allegation provides no basis for sustaining the protest. The protest is denied.