Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
General Counsel P.C. Highlight:
GAO denied the protest of HK Consulting, Inc., (HK) based on the terms of a request for proposals (RFP), issued by the Department of the Air Force for services to support the United States Pacific Command’s military exercises.
The RFP contemplated the award of a fixed-priced contract, to a section 8(a) small business contractor on a best value basis considering technical acceptability, price, and performance confidence assessment. Section M of the RFP stated that in assessing a principal offeror’s performance confidence, the agency would not consider the experience and past performance of proposed subcontractors and key personnel.
HK protested the criterion, arguing that it unduly restricted competition and is not reasonably related to the Air Force’s needs. GAO disagreed and concluded that the RFP’s past performance requirements were unobjectionable and GAO saw no reasonable way that they could be said to restrict competition. First, an agency has a legitimate interest in assessing performance risk by considering only the experience and past performance of entities with which it will have contractual privity. Secondly, as the protester conceded, there is no legal requirement that an agency attribute employee experience to the contractor in evaluating its experience and past performance. Finally, consistent with FAR part 15, the solicitation here provided that offerors lacking recent or relevant past performance history will not be evaluated favorably or unfavorably in that regard, but will be assessed a neutral rating. In other words, the RFP did not preclude HK from submitting a proposal and, contrary to the protester’s suggestion, the RFP did not preclude award to an offeror with a neutral performance confidence rating.