Link: GAO Opinion
Agency: Department of Justice
Disposition: Protest denied.
Keywords: Past Performance Evaluation
General Counsel P.C. Highlight: Unless there is a clear reason to question the validity of the past performance information, an agency is not required to communicate matters of adverse past performance where no discussions are conducted under an acquisition.
Rod Robertson Enterprises, Inc. protests the award of a contract, by the Department of Justice, Federal Prisons Industries, Inc. (UNICOR), under a request for proposals (RFP), for vehicle towing, storage, maintenance, and disposal services for the U.S. Marshals Service in the Southern District of Texas.
The RFP was issued as a small business set-aside. The RFP anticipated the award of a fixed-price contract for a base year with four one-year options. The solicitation stated that the award would be made to the offeror whose proposal provides the best value to the government considering past performance and price. The solicitation required contractors to provide information on contracts that it “worked on within the last three years” that were similar in scope and relevant to the instant procurement. The RFP also stated that the agency “may award” a contract based on initial offers received without discussions.
Two offerors were found to be in competitive range. The agency sent past performance surveys to each reference provided by the two offerors. The agency used the surveys to complete a past performance evaluation on each offeror.
Rod Robertson submitted three contracts on which it recently worked. The past performance references rated Rod Robertson’s performance as outstanding on one contract, unsatisfactory on another contract and satisfactory on the third contract. Rod Robertson received an overall satisfactory rating under the past performance factor. The agency made award to the other offeror without discussions.
Rod Robertson challenges the past performance evaluation. GAO states that, as a general matter, the evaluation of an offeror’s past performance is within the discretion of the contracting agency, and GAO will not substitute its judgment for reasonably based past performance ratings. A protester’s mere disagreement with the agency’s determinations as to the relative merit of competing proposals, and its judgments as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable.
Rod Robertson contends that the agency’s evaluation applied unannounced evaluation criteria by dividing the past performance questionnaire information into what were essentially discrete subfactors, which were not disclosed in the solicitation. The solicitation stated offerors were required to provide information regarding “the level of performance, in terms of delivery and quality achieved . . . and should reflect the offeror’s record of performance in the areas of conforming to specifications, adherence to contract schedules, reputation for reasonable and cooperative behavior, commitment to customer satisfaction and business-like concern for the interest of the customer.” The past performance surveys sent to each reference provided by the offerors consisted of 12 questions that were broken down by the agency in the evaluation process into the following five past performance areas: quality of service, timeliness of performance, price/cost control, business relations, and customer satisfaction. The agency was not required to specifically identify these five areas in the solicitation as subfactors because they were reasonably related to the past performance factor as described in the solicitation. Agencies are not required to specifically identify subfactors comprising an evaluation criterion where the subfactors are reasonably related to the stated evaluation criterion, nor are they required to disclose the specific evaluation methodology that they intend to use in making evaluation judgments regarding firms’ proposals.
Rod Robertson argues that the agency’s evaluation of its past performance contract that received an unsatisfactory rating constituted “adverse information,” which the protester should have received an opportunity to address. However, where, as here, discussions are not conducted under an acquisition, an agency is not required to communicate with offerors regarding questions about adverse past performance, unless there is a clear reason to question the validity of the past performance information. The protest is denied.