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American Apparel Left Me Wondering



GAO supplies us with its contracting rules in bid protest decisions. These rules are repeated and this is one of the reasons I provide key excerpts from bid protest decisions on Wifcon.com's Bid Protest pages. If you read these rules repeatedly, you will remember them. For example, here is a rule on what GAO reviews on a past performance issue.

The evaluation of past performance is a matter of agency discretion, and we will review the evaluation only to ensure that it was reasonable and consistent with the solicitation’s stated evaluation criteria and applicable statutes and regulations. (Advanced Computer Concepts, B-408084, May 30, 2013)

Think "consistent with the solicitation’s stated evaluation criteria" for this blog entry.

Recently, GAO's decision in American Apparel, Inc., B-407399.2, Apr 30, 2013, drew my attention. We know a solicitation's terms are important because it is what bidders and offerors rely on to prepare their bids and offers. However, could GAO's own rule that states "consistent with the solicitation’s stated evaluation criteria" leave it with an oddly written decision. I believe that it did.

In the American procurement, the solicitation stated that

“[f]or the period two years prior to the solicitation closing date, the Government will assess offeror-submitted past performance information, as well as relevant information from any other sources, for use as an indicator to successful contract performance.”

All of you probably have seen something similar to the above in a solicitation. It is not the solicitation language in this procurement; it is the events that interest me. The solicitation closed on September 22, 2010 but the contract wasn't awarded until January 18, 2013, over 2 years later. Things can happen in 2 years and in this procurement things did happen. American claimed that during this 2-year period, the successful offeror--Bluewater Defense--had performance deficiencies. However, in response to the protestor's claim GAO said

The RFP in this case provided that offerors’ past performance would be assessed “[f]or the period two years prior to the solicitation closing date,” which in this case covered the time period between September 23, 2008, and the closing date of September 22, 2010. RFP at 184. Where the Bluewater performance deficiencies identified by American fall outside of that time period, there was nothing improper about the agency’s decision not to consider these issues. See FR Countermeasures, Inc., B-295375, Feb. 10, 2005, 2005 CPD ¶ 52 (agency not required to consider past performance information outside of the time period set forth in the solicitation, even where solicitation reserved the agency’s right to do so).

My problem with using FR Countermeasures, Inc., in its decision as an example is that, in FR Countermeasures, there was a short period of time between the solicitation closing date and contract award. In the American decision, this time period was over 2 years. However, GAO happily states its rule without dealing with this 2-year period. That bugs me. Case closed, decision over, the protester loses. Maybe this caused some scratching of heads in GAO's bid protest unit too. I don't know but it left me wondering.

A skilled writer can use sleight-of-pen to make it appear that it dealt with an issue without really dealing with it. In my opinion, that is what GAO did and dealt with the 2-year time period in its background section. GAO mentions that the source selection authority (SSA) made its selection decision on January 13 without adding which year. (The decision also includes 2 different solicitation closing dates so I assume that the missing year was an oversight.) However, the sequence of events leads me to assume that the date was January 13, 2011. GAO further explains, that the procurement record (probably the contract file) included a memorandum from the contracting officer dated November 1, 2012, about a briefing given to the SSA on the results of a "supplementary past performance review." The memorandum explains that this review was written due to the length of time that had passed between the solicitation closing date and the award decision. GAO included a blurb from that memorandum which explained

When evaluating Bluewater for the additional two years [since the closing date of the RFP], their record of on or ahead of schedule decreased from[DELETED] to [DELETED], and American's record of on or ahead of schedule decreased from [DELETED] to [DELETED]. While both offerors records of on-time deliveries have decreased since their initial evaluation, they would both still be considered Very Good for their overall past performance rating, and on a comparative basis, Bluewater would still be considered superior to American for overall past performance.

Remember GAO did not discuss this memorandum in its "ruling" section of its decision. To complete its story, GAO wrote in the background section that

The record shows that the SSA considered the supplemental past performance information in making his affirmative determination of responsibility regarding Bluewater. The determination of responsibility noted that Bluewater had encountered certain performance deficiencies, but found that Bluewater maintained the production capacity, technical capacity, financial strength, integrity, and business ethics to be found responsible.

In the end, GAO issued its decision using its rule on the solicitation's requirements, ignored the 2-year period in its ruling, but deals with the 2-year period in the background section. Would GAO have mentioned it in the ruling section, if during the 2-year period, there was a substantial decline in the winning offeror's past performance? Anyway, it had me wondering.

There are 2 decisions you might want to read. They are FR Countermeasures, B-295375, February 10, 2005, mentioned in the decision, and International Business Systems, Inc., B-27554, March 3, 1997 for the "too close at hand" passage mentioned by the protester.


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