Bid Protest Weekly Newsletter by Bryan R. King, Attorney, General Counsel PC
Date: Wednesday, June 5, 2013, 3:23EST
Advanced Computer Concepts, B-408084, May 30, 2013
A couple of weeks ago, we focused on a protest in which GAO determined that agencies are not required to consider an offeror’s past performance history if it is not included in the offeror’s proposal. GAO addressed the reverse of that issue this past week in the protest of Advanced Computer Concepts, in which the agency actually did consider past performance information not included in the offerors’ proposals. However, here the protester argued that if the agency was going to consider past performance information from outside its proposal, it should have considered the circumstances surrounding that past performance.
This case involved a request for quotations (RFQ) issued by GSA pursuant to Federal Supply Schedule procedures (Schedule 70). GSA received quotations from four vendors, including Advanced Computer Concepts and the awardee, Futron, Inc. The RFQ informed offerors that past performance information contained in the Past Performance Information Retrieval System (PPIRS) would be considered in the evaluation. In response to the RFQ, Advanced Computer submitted past performance information for five previous FSS orders in which it received either exceptional or satisfactory ratings.
However, GSA found in the PPIRS database four other Advanced Computer orders that were terminated for cause for Advanced Computer’s failure to deliver. GSA was able to confirm the terminated orders with the responsible agency official, and as a result, assigned a past performance score of “Marginal Confidence” to Advanced Computer. Despite its offered price being slightly higher than Advanced Computer’s, GSA determined Futron offered the best value to the government, as it received a much higher score of “Good Confidence” in past performance.
In its protest, Advanced Computer argued that it was unfair for GSA to hold the four terminated orders against it in this procurement. Advanced Computer explained to GAO that it had only failed to deliver under the four terminated orders because it refused to collude with its supplier to fix prices. Advanced Computer even provided evidence that its supplier, along with the manufacturer, ultimately paid a fine of $48 million to GSA to settle claims under the False Claims Act. Advanced Computer argued that GSA should have considered the circumstances surrounding the failure to deliver, and not held it responsible for the terminations.
GAO disagreed and denied the protest. GAO found that the agency acted properly, first considering PPIRS information for each of the offerors, and then receiving confirmation that the four previous Advanced Computer orders were in fact terminated for failure to deliver. GAO acknowledged that the agency that terminated Advanced Computer’s orders did not appear to blame Advanced Computer, but nonetheless found no basis to question GSA’s performance evaluation.
An interesting question is whether it would have been beneficial for Advanced Computer to include an explanation of its negative past performance in its proposal. This was implied by GAO in its decision, as it was noted that the agency had no way of knowing the circumstances surrounding the terminated orders because Advanced Computer failed to provide an explanation in its proposal. However, GAO later suggested that any such explanation would need to demonstrate that the circumstances of the situation provided a legal absolution of the requirement to perform. Otherwise, the contractor is still required to deliver the required items. Failure to deliver could come back to haunt the contractor in later procurements.