Link: GAO Opinion
Agency: Department of Homeland Security, Federal Emergency Management Agency
Disposition: Protest sustained in part, denied in part.
Keywords: Past Performance
General Counsel P.C. Highlight: An agency’s scoring methodology must be fair and effective in assessing an offerors proposal in light of the stated evaluation criteria.
Shaw-Parsons Infrastructure Recovery Consultants, LLC and Vanguard Recovery Assistance, Joint Venture, protest the award of architect/engineering (A/E) services contracts pursuant to a solicitation issued by the Department of Homeland Security, Federal Emergency Management Agency (FEMA).
Prior to the current protest, GAO sustained a protest filed by Shaw-Parsons in connection with FEMA’s award of the above contracts. In sustaining Shaw-Parsons’ protest, GAO concluded that FEMA failed to consider in its past performance evaluation information contained in past performance questionnaires (PPQ), which was “too close at hand” for FEMA to have ignored. GAO recommended that FEMA conduct a reevaluation, giving reasonable consideration to the PPQs it received for the firms remaining in the competition as the information related to the quality of their past performance.
Offerors were invited to submit their qualifications to provide the services required by the Sources Sought Notice (SSN) issued in connection with the procurement. Firms were advised that their qualifications would be evaluated under the following five factors: (1) specialized experience and technical competence; (2) capacity to accomplish work within the required time; (3) professional qualifications; (4) past performance; and (5) location in the general geographic area of the project.
After firms had submitted their qualifications, FEMA sent them PPQs, which were to be completed by the firms’ past performance references and returned to FEMA. The PPQs allow references to rate a firm’s performance as “Superior,” “Acceptable,” or “Unacceptable” in the following four categories: (a) Quality of Product or Service; (b) Cost Control; (c) Timeliness of Performance; and (d) Business Relations. The PPQs also allow the references to supplement their adjectival ratings with narrative comments.
After the initial protest, the Source Evaluation Board (SEB) reconvened for the purpose of reevaluating the firms’ past performance giving consideration to information contained in their submissions and PPQs. When the SEB evaluated and rated the firms’ PPQs, it evaluated and rated two components: (1) the information contained in the PPQ narratives, which supported the adjectival chart ratings; and (2) the particular adjectival chart ratings themselves. Because the four evaluation categories set forth in the PPQs did not precisely match the six areas for evaluation established in the SSN, the SEB reviewed the narrative comments and considered any comments which it believed to be relevant to the six past performance areas set forth in the SSN. The SEB documented its consideration and evaluation of these narratives in a chart, which identified, for each firm, any comments from the PPQs that the SEB considered to be a strength or a weakness and the SSN category that best corresponded to the strength or weakness. At the conclusion of the SEB’s reevaluation, none of the firms’ overall past performance ratings changed from the prior evaluation.
The SEB forwarded its final report to the Source Selection Authority (SSA), who signed the report. Upon learning the results of the agency’s reevaluation, Shaw?Parsons and Vanguard filed these protests.
Generally, Shaw-Parsons and Vanguard allege that the analytical framework used by the agency in reevaluating firms’ past performance was inconsistent with the terms of the solicitation, our prior decision, or that it was in some way unreasonable or unfair. GAO sustains the protest filed by Vanguard as it relates to the agency’s methodology for evaluating the PPQ chart ratings component of the overall PPQ evaluation.
GAO states that the evaluation of an offeror’s past performance is within the discretion of the contracting agency, and it 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 judgment as to which proposal offers the best value to the agency, does not establish that the evaluation or source selection was unreasonable.
In its protest, Vanguard argues that its Acceptable PPQ chart rating was unreasonable because the agency’s scoring methodology effectively penalized Vanguard for having submitted PPQs for two less relevant contracts. Specifically, in considering Vanguard’s two less relevant PPQs, the SEB assigned 7.5 points as opposed to 10 points for each Superior rating, and using these scores calculated an average score for Vanguard. Vanguard maintains that had these less relevant contracts not been submitted, its past performance rating score would have been 36.25, thus leading to a Superior rating, yet when the less relevant contracts were included in the average, its score was reduced to 34.83, even though it received Superior ratings across-the-board on the PPQs for the two less relevant contracts. According to Vanguard, any reasonable consideration of its less relevant contracts could only have increased its score since it received all Superior ratings for these contracts. GAO agrees and sustains the Vanguard protest.
Shaw-Parsons challenges numerous aspects of FEMA’s reevaluation process as well as the reasonableness and fairness of FEMA’s past performance judgments. GAO has reviewed all of the issues raised by Shaw-Parsons and concludes that they do not provide a basis to sustain its protest. GAO denies the Shaw-Parsons protest.
GAO recommends that the agency, consistent with the details of the GAO decision, reevaluate Vanguard’s past performance information. Based on that reevaluation, GAO recommends that the agency make a new source selection determination.