Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Protest challenging agency’s technical and past performance evaluation of proposals is denied where agency’s evaluation was reasonable and supported by the record.
General Counsel P.C. Highlight:
GDMA contends that the agency should have rated GDMA’s proposal superior to the awardee’s. For example, GDMA argues that certain strengths were improperly attributed to MLS’s proposal, while GDMA was not given strengths for similar responses or strengths that were otherwise warranted. GAO states that the evaluation of proposals, including the determination of the relative merits of proposals, is primarily a matter within the discretion of the contracting agency, since the agency is responsible for defining its needs and the best method of accommodating them. In reviewing an agency’s evaluation, GAO will not reevaluate the proposals or make a new source selection, but rather will examine the record of the evaluation and source selection to ensure that they were reasonable and consistent with the stated evaluation criteria as well as with procurement law and regulation. A protester’s mere disagreement with a procuring agency’s judgment is insufficient to establish that the agency acted unreasonably.
The record shows that two strengths involving operational security were derived from information in the awardee’s technical proposal, rather than from an evaluation of the awardee’s security plan. These strengths were rolled up into a major strength in the Post Negotiation Business Clearance Memorandum: “[s]trong OPSEC understanding and processes.” Based on GAO’s review, the assignment of this major strength to the awardee’s proposal was reasonable and consistent with the RFP’s evaluation scheme.
The key discriminator in the source selection decision was GDMA’s “less than satisfactory” past performance as compared to the awardee’s “better” past performance. The protester challenges the evaluation of GDMA’s and MLS’s past performance. GAO states that the evaluation of an offeror’s past performance, including the agency’s determination of the relevance and scope of an offeror’s performance history, is a matter of agency discretion, which GAO will not find improper unless it is inconsistent with the solicitation’s evaluation criteria. The evaluation of experience and past performance, by its very nature, is subjective; GAO will not substitute its judgment for reasonably based evaluation ratings, and an offeror’s mere disagreement with an agency’s evaluation judgments does not demonstrate that those judgments are unreasonable.
The protester notes that the GDMA’s past performance was initially found to be satisfactory, based upon a review of the questionnaires returned by each reference; but GDMA’s rating was later changed to “less than satisfactory” after the Initial Business Clearance Memorandum (reflecting the initial satisfactory rating) was presented to the Contract Review Board (CRB). The protester characterizes the CRB’s involvement as “an instruction from on high,” and suggests that the past performance evaluation team (PPET) may have updated its overall rating under pressure and without a valid basis. The agency responds that the purpose of the CRB is to provide an independent review of the acquisition and to highlight areas that are inconsistent, or otherwise of concern. The CRB noted that several specific performance concerns had been expressed regarding the only contract that the evaluation committee viewed as highly relevant; much of the PPET’s evaluation turned on these concerns. The CRB member explained that the panel wanted to ensure that those concerns had been properly considered in the evaluation. Responding to the CRB’s guidance, the PPET again reviewed the past performance information, and determined that GDMA’s overall past performance rating should be “less than satisfactory.” This report detailed the reasons why this rating was warranted. Thus, there is no evidence that the CRB directed the PPET to a particular outcome; rather it asked the PPET to ensure that its satisfactory rating was supported by the underlying past performance information.
This type of review by higher-level agency officials is entirely appropriate, states GAO. Source selection officials and higher-level agency evaluators may reasonably disagree with the evaluation ratings and results of lower-level evaluators. In this regard, a source selection official has broad discretion in determining the manner and extent to which technical and cost evaluation results are used, is permitted to make an independent evaluation of offerors’ proposals, and may disagree with or expand upon the findings of lower-level evaluators provided the basis for the evaluation is reasonable and documented in the contemporaneous record. The issue is not whether the agency’s final assessments are consistent with earlier assessments, but whether they reasonably reflect the relative merits of the proposals, consistent with the solicitation.
While GDMA contends that it’s past performance rating should have been better than the “Less than Satisfactory” rating it ultimately received, GAO notes that GDMA does not disagree with many of the negative remarks regarding its past performance. Rather, GDMA primarily disagrees with the weight those negative remarks were given by the PPET. However, GDMA’s disagreement with the weight accorded to its past performance problems does not mean that they were improperly evaluated. Absent a showing of why the conclusions were unreasonable, GAO has no basis to conclude that the agency evaluated GDMA’s past performance in a manner inconsistent with the RFP’s evaluation scheme.
The protest is denied.