Link: GAO Opinion
Agency: Overseas Private Investment Corporation
Disposition: Protest denied.
Keywords: Past performance evaluation; Protest jurisdiction
General Counsel P.C. Highlight: The Competition in Contracting Act, which requires full and open competition for federal government procurements and provides the basis for GAO’s jurisdiction to hear bid protests, presumptively applies to all agencies of the executive branch of the federal government.
The Overseas Private Investment Corporation (OPIC), a U.S. Government executive branch agency, issued a request for proposals (RFP) for the award of a time-and-materials contract for planning, promotion, and logistics support for an international business and investment conference. The proposals were to be evaluated based on two factors: technical capability and past performance. OPIC received four proposals, two of which were from MFM Lamey Group, LLC and MFMci, LLC. These two companies are separate, successor companies to MFM Group, Inc., which was split in 2008 by mutual agreement of its owners.
MFMci was awarded the contract and MFM Lamey filed an agency-level protest, which was denied by OPIC. MFM Lamey then protested to the GAO alleging that OPIC’s past performance evaluation was unreasonable.
Preliminarily, OPIC alleged a series of jurisdictional and scope of review questions. In the first instance, OPIC challenged GAO’s authority to review the protest on the basis that the contract at issue was funded with non-appropriated funds. However, GAO countered this claim and provided that its bid protest jurisdiction is based on the threshold of whether the procurement at issue is being conducted by a federal agency, where the definition of a federal agency (as drawn from the Federal Property and Administrative Services Act) is any executive department or independent establishment in the executive branch of the government, and any wholly-owned government corporation.
In the second instance, OPIC also alleged that even if the procurement was within GAO’s bid protest jurisdiction, GAO’s review of the protest was limited to reviewing the reasonableness of the agency’s procurement actions because the basic procurement statutes (principally, the Competition in Contracting Act) are not applicable to OPIC. GAO concluded that the procurement in question was subject to the requirements of CICA and that OPIC had not identified any statute that expressly exempts it from CICA. Furthermore, GAO also found that the acquisition was funded with appropriated funds and is therefore subject to the Federal Acquisition Regulation.
After dismissing the jurisdictional and scope questions raised by OPIC, GAO examined the substantive issues raised by MFM Lamey in its protest. In particular, MFM Lamey alleged that MFMci was credited for past performance that was attributable to MFM Lamey and contends that “since the awardee’s and protester’s split from MFM Group, Inc., the awardee has not provided international conference planning services for any U.S. Government agency… upon which OPIC could reasonably rely in making its award decision.” OPIC responded that its past performance evaluation judgments were based upon conferences and events that took place after the firms split from the MFM Group.
In GAO’s review of the record, it determined that the past performance questionnaires submitted by MFMci’s clients described nine international conferences that MFMci performed in 2009, and that these performances were consistently rated the highest possible rating. GAO concluded that this sufficiently supported OPIC’s evaluation, which was found to be reasonable, and thus denied MFM Lamey’s protest.