Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest denied.
Protest that agency improperly failed to consider past performance of an affiliated subsidiary company is denied where the record shows that, even if considered, the past performance information offered was incomplete, and the agency’s past performance rating of neutral was therefore reasonable.
General Counsel P.C. Highlight:
Herley asserts that the Navy improperly failed to consider the past performance of Herley subsidiary Electronic Warfare Simulation Technology (EWST), submitted in support of MSI’s proposal. The protester challenges its past performance rating of neutral, asserting that, based on the supplemental past performance information regarding EWST that MSI submitted after the first round of discussions, the only reasonable past performance rating was at least favorable. GAO states that in reviewing an agency’s evaluation of past performance, GAO examines the record to determine whether the evaluation was reasonable and in accordance with the stated evaluation scheme and applicable procurement statutes and regulations. Here, consistent with Federal Acquisition Regulation sect. 15.305(a)(2)(iv), the RFP stated that [o]fferors who do not have same or similar past performance information reasonably available to the Contracting Officer will not be rated either favorable or unfavorable.
The RFP required offerors to submit past performance data that addressed all three subfactors and indicated that the agency would not be responsible for seeking out missing information. The record shows, however, that the information regarding EWST that MSI furnished to the agency after discussions was incomplete, addressing only one of the three past performance subfactors–previous experience in developing and delivering similar systems, but not reliability and timeliness of delivery. In light of the lack of information to establish the offeror’s past performance history under the two subfactors, the agency’s decision to assign MSI a past performance rating of neutral was reasonable and consistent with the RFP, even taking into account the information regarding EWST.
The protester argues that the lack of information regarding EWST’s past performance under two of the three subfactors is immaterial, because the other five past performance references MSI provided in its initial proposal did in fact address subfactors two and three. However, MSI’s five original references themselves were incomplete in the sense that they addressed only two of the five MSS subsystems; MSI’s omission of the requested past performance information relating to the other three MSS subsystems was the subject of the agency’s discussion question to MSI, asking it to address its past performance as it relates to the other three subsystems. The RFP, in requesting past performance information the way that it did, that is, by setting out the three subfactors relevant to the past performance evaluation, asked offerors to describe not only their experience with particular system components, but also, specifically, the reliability and timeliness of delivery of those components. In discussions, the protester was explicitly advised that the firm had not addressed its past performance for three of the five subsystems. Simply, the protester failed to furnish any information with regard to reliability and timeliness of delivery for those subsystems identified during discussions.
The RFP called for, but MSI did not provide, information on the reliability and timeliness of delivery of the equipment that was the subject of the supplemental past performance information offered in response to the concern raised during discussions. Because MSI failed to provide the information necessary to assess the past performance under these three contracts, GAO finds no basis on which to question the reasonableness of the protester’s past performance rating of neutral. The protest is denied.