Link: GAO Decision
Protestor: Weibel Equipment, Inc.
Agency: Department of the Army
Disposition: Protest Denied.
- Protest challenging agency’s evaluation of awardee’s past performance and protester’s technical proposal is denied where the record shows that the evaluation was consistent with the terms of the solicitation and reasonable.
- Protest that agency failed to properly consider information contained in the protester’s final proposal revision is denied where the protester was not prejudiced by the agency’s error.
General Counsel PC Highlight:
Weibel Equipment, Inc. protested the award to General Dynamics C4 Systems of a contract for Simulation, Training, and Instrumentation for the Army’s Range Radar Replacement Program. Award was to be made on a best value basis, considering technical, performance risk, and cost/price evaluation factors. The technical factors contained three subfactors, in descending order of importance: radar system capability, integrated logistics support, and small business participation. The agency conducted two rounds of discussions with the offerors in the competitive range, after which it requested FPRs. Although General Dynamics offered a proposal priced approximately $17 million more than Weibel, the agency concluded that the enhanced capabilities and lower risk found in General Dynamics’ approach was well worth the price premium.
Weibel first argued that the agency failed to consider negative past performance information regarding an Israeli contract of one of General Dynamics’ major subcontractors in rating General Dynamics as “very low risk.” The GAO denied this argument, pointing out that General Dynamics provided information about that contract to the agency, and that the agency requested past performance information from the Israeli government. Because the Israeli government did not respond to the request, and the agency was unable to locate information about the contract in CPARS, the agency reasonably did not consider the contract in rating General Dynamics’ performance risk.
Weibel then challenged the weaknesses assessed against it, which the agency considered key discriminators in selecting General Dynamics’ more expensive offer. The GAO found nothing unreasonable in the agency’s concern regarding signal power loss corresponding with increased angular extent, and concluded that discussions with Weibel in this area were adequate. The GAO also found reasonable Weibel’s weakness under the transponder tracking requirements, pointing out that responses which Weibel had provided during discussions were not incorporated into its FPR. It pointed out that the agency was obligated to consider the information provided in the proposals; it did not matter that Weibel had marked certain portions “draft” and could change them in the engineering and manufacturing part of the contract. The GAO did not find unreasonable the agency’s concerns that Weibel’s proposal did not explain how interference would be detected and mitigated where radars shared the same frequency. It also agreed with the agency that Weibel was not prejudiced by the agency’s final evaluation based on statements made in Weibel’s initial proposal, but supplanted by its FPR.
When evaluating past performance and performance risk, agencies are not obligated to consider information for which they do not have independent data. If an offeror identifies a particular past contract, but the agency does not receive a past performance questionnaire from the contracting agency and cannot locate information on the contract in CPARS, it will typically decline to consider the offeror positive assessment of its own performance. If a competing offeror is aware of negative performance information, informing the CO of this negative history will not have an impact on the evaluation of proposals unless the agency can independently confirm.