Link: GAO Decision
Protestor: LASEOD Group, LLC
Agency: Department of the Army
Disposition: Protest Denied.
Protest that agency improperly waived a solicitation requirement (that offerors provide past performance information for at least three prior contracts) is denied where the protester was not competitively prejudiced by the waiver and the agency’s selection of the awardee’s quotation as the most advantageous to the government, based on its higher-rated past performance, was reasonable and consistent with the solicitation’s stated evaluation factor.
General Counsel P.C. Highlight:
LASEOD Group, LLC protested the award of a simplified acquisition, small business set-aside contract for surface, subsurface, and underwater clearance of unexploded ordinance (UXO) to VR Habilis, LLC (VRH). The RFQ required vendors to submit past performance information, including customer surveys, for no less than three similar contracts. LASEOD objected that the agency evaluated VRH’s past performance on only two customer surveys, while LASEOD was evaluated on the requested three. One customer survey from LASEOD related to past performance at the location for which the services were being sought, and had given LASEOD ratings of marginal or satisfactory.
The GAO noted that an agency can waive compliance with a material solicitation requirement only if the award will meet the agency’s actual needs without prejudice to other offerors. It found no evidence that LASEOD would have been able to improve its competitive position had it known the requirement to submit at least three customer surveys would be waived. It noted that even if LASEOD had not submitted the customer survey with the marginal/satisfactory ratings, the agency still could have relied on the agency’s prior experience with LASEOD to evaluate its past performance.
This case highlights the impact an unsatisfactory past performance with the requesting agency can have in the evaluation of future offers. Although LASEOD objected to the fact that only two surveys were considered from VRH, while its past performance evaluation was based on three surveys, the GAO noted that the agency would have been able to consider LASEOD’s past performance on its contract regardless of whether LASEOD had submitted it. Thus, while a contractor may have sufficient exemplary customer surveys to satisfy the requirements of the RFQ without submitting a survey from the requesting agency, negative past performance with the requesting agency could still be considered.