Link: GAO Decision
Protestor: Johnson Controls Government Systems, LLC
Agency: General Services Administration
Disposition: Protest Denied.
Protest of the agency’s evaluation of the protester’s past performance is denied where record shows that the agency reasonably relied on a poor past performance reference.
General Counsel PC Highlight:
Johnson Controls Government Systems, LLC (JCGS) protested the failure of the agency to award the firm a contract for medical treatment facilities (MTF) maintenance services under an RFP which provided for the award of up to eight ID/IQ contracts on a best value basis. With regard to the past performance evaluation factor, offerors would be evaluated on how well the firm had performed similar contracts. The “standard for evaluation” would be met when all references for the offeror were satisfactory under 5 past performance subfactors; the RFP informed offerors that the agency would consider references provided by the offeror as well as other references. One SSEB member informed the other evaluators that JCGS had significant negative past performance at Nellis AFB; based on this information and JCGS’s unsatisfactory explanation, the agency evaluated JCGS’s proposal as poor under the past performance factor.
The GAO found that the agency was entitled to rely on the information it received from the Air Force regarding JCGS’s performance at Nellis AFB, and was not required to conduct its own investigation into the boiler failure that led to the negative performance. The GAO disagreed with JCGS that the agency gave “undue weight” to the past performance at the Nellis AFB medical facility, noting that the relevance of the Nellis AFB contract was undisputed. It also pointed out that the agency had considered JCGS’s satisfactory and good performance on other contracts. The GAO concluded that JCGS had not shown that the agency’s concerns that JCGS’s negative performance at Nellis AFB presented a performance risk were unreasonable.
When preparing past performance proposals, offerors should try to include as many very relevant contracts as possible. Contracts that are similar or greater in scope, magnitude, and complexity provide the greatest comparison for contracting officers when making their past performance evaluations. However, if the RFP allows for consideration of past performance from other references, offerors should remain aware that the agency may consider negative past performance which the offeror does not submit with its proposal.