Link: GAO Decision
Protestor: Monument Title Insurance, Inc.
Agency: Department of Housing and Urban Development
Disposition: Protest Denied.
Protest challenging the agency’s evaluation of proposals is denied where the record establishes that the agency’s evaluation was reasonable and consistent with solicitation terms.
General Counsel PC Highlight:
Monument Title Insurance, Inc. protested the award to Cornerstone Title Insurance Agency, LLC of a contract for closing agent services for sales of the agency’s inventory of single-family homes in the state of Utah. The RFP, issued as a small business set-aside, provided for award to the lowest-priced, technically-acceptable proposal, considering licensing requirement, key personnel, and past performance evaluation factors. A proposal deemed unacceptable under any non-price factor was deemed unacceptable overall, and would not be considered further. In its past performance volume, Cornerstone stated that, while it had not handled HUD contracts, it had extensive experience performing refinancing and second mortgage transactions, and explained how these transactions were substantially similar to the solicited HUD closing services.
After award was made to a third offeror, Metro National, Monument (who had been deemed unacceptable under the past performance factor) filed a size protest with the SBA, who determined that Metro National was other than small. Monument also filed a protest with the GAO regarding its past performance evaluation. The agency took corrective action, cancelling award to Metro National and performing a new evaluation. Monument was once again deemed unacceptable, after the agency determined that it had not demonstrated an average of 50 closings per month as required by the RFP.
Although Monument again challenged the past performance evaluations conducted by the agency, the GAO found no basis to find the evaluation of Cornerstone’s past performance to be unreasonable. It noted that the RFP did not limit past performance consideration to only HUD closings or those for the sale of single-family homes. The agency explained that the transactions relied upon by Cornerstone to establish its past performance were substantially similar to the closing services being sought in this solicitation. The GAO rejected Monument’s argument that the agency should have revised the solicitation to state that refinancing and secondary mortgage transactions were acceptable past performance, noting that such a protest was a preaward protest. Finally, the GAO noted that any objections as to Monument’s intended subcontracting were responsibility issues not subject to the GAO’s review.
In preparing past performance volumes, offerors should strive to include references that are as relevant as possible to the tasks in the RFP. If the RFP provides that very specific kinds of past performance are required or considered most relevant, failure to have such past performance, or proposed subcontractors with relevant experience, could result in lower evaluation ratings or a determination of technical unacceptability. However, offerors should carefully consider whether they can provide past performance which is substantially similar to the tasks in the RFP. If so, providing a detailed explanation relating that past performance to the solicited tasks will aid the agency in determining the relevancy of that past performance.