FAR 15.305 (a)(2):  Past Performance - General 

Comptroller General - Key Excerpts

As noted above, the record reflects that the SEB divided its evaluation of the firms' [past performance questionnaires] PPQs into two parts, one based on the narrative information contained in the PPQs and the second based on the individual PPQ chart ratings. For the purpose of evaluating the PPQ chart ratings, the SEB, as explained above, used a numerical scoring system, one which assigned points for Superior and Acceptable ratings; using this scoring system, the SEB calculated an average score for each firm. In this regard, an average score of 36 points, or higher, translated to a Superior rating. Under this scheme, Vanguard received an Acceptable rating for its PPQ chart ratings‑-it had an average score of less than 36 points. While Vanguard received a narrative rating of Superior for its PPQs, it only received an Acceptable rating for its PPQs overall, and an overall past performance rating of Acceptable.

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. Vanguard does not challenge the notion of giving less relevant contracts less weight in the evaluation per se; rather, Vanguard contends that the way in which the SEB accounted for the less relevant contracts was fundamentally flawed because the SEB effectively (and unreasonably) penalized Vanguard by diminishing the value of its Superior ratings on its 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. We agree.

In Olympus Bldg. Servs., Inc., B-285351, B-285351.2, Aug. 17, 2000, 2000 CPD para. 178, we sustained a protest where the agency used a scoring methodology to evaluate offerors' experience which was similar to the one used by FEMA to evaluate firms' past performance in this case. Specifically, the agency in Olympus assigned different point scores depending on the degree of relevance of an offeror's experience, deducted points for less relevant experience, added the scores, and calculated an average. The application of this formula penalized the protester for two extra experience references, albeit for less relevant experience. We noted that had the protester's score been based on only the comparable references, the protester would have received a higher score than it did when these references were averaged with the less relevant references. We concluded that the agency's scoring methodology improperly penalized the protester for having included extra references for its experience.

Here, Vanguard submitted six PPQs, two of which were identified as less relevant. The agency deducted points for each of the Superior ratings Vanguard received on these contracts, which, when averaged with Vanguard's ratings for its relevant contracts, had the effect of lowering its overall PPQ rating score, notwithstanding the fact that Vanguard received the highest adjectival ratings on its less relevant PPQs. Thus, as in Olympus, the agency effectively penalized Vanguard for having submitted references for additional, less relevant contracts and used what was an arbitrary score for the purpose of its evaluation. See also United Paradyne Corp., B‑297758, Mar. 10, 2006, 2006 CPD para. 47 (sustaining protest where the agency's approach to evaluating past performance was unreasonable because it had the effect of penalizing offerors with relevant experience for their non-relevant experience).

The agency argues that Vanguard was not materially impacted by this issue since the PPQ chart ratings were given minimal weight and any change in those ratings would not have affected the result in any event. Setting aside the fact that such post hoc assessments made by agencies in the heat of the adversarial process are given little weight by our Office, see Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15, the agency's conclusions are not supported by the underlying record. Vanguard received a Superior rating for the narrative information contained in its PPQs--information which FEMA claims was more important to the overall evaluation--yet Vanguard only received an overall rating of Acceptable for its PPQs. This was apparently due to its Acceptable rating for its PPQ chart information, which, as explained above, was derived from the agency's faulty scoring system. Moreover, if Vanguard had received an overall Superior rating for its PPQs, there is a reasonable possibility that it would have received an overall past performance rating of Superior. Thus, we cannot conclude, as the agency suggests, that Vanguard was not prejudiced by this error.  (Shaw-Parsons Infrastructure Recovery Consultants, LLC; B-401679.8; B-401679.9; B-401679.10, Vanguard Recovery Assistance, Joint Venture, September 8, 2010) (pdf)
 

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. Guam Shipyard, B-311321, B-311321.2, June 9, 2008, 2008 CPD para. 124 at 3. The evaluation by its very nature is subjective; the offeror's mere disagreement with the agency's evaluation judgments does not demonstrate that those judgments are unreasonable. SDV Telecomms., B-279919, July 29, 1998, 98-2 CPD para. 34 at 2.

PMT challenges the agency's evaluation of the PPIRS quality records for past performance. It contends that the contracting officer improperly diminished the value of PMT's purple rating and irrationally concluded that PMT's higher quality rating did not indicate a higher degree of confidence.

Regardless of the color rating assigned, such ratings are merely guides for intelligent decision-making in the procurement process; and where, as here, the agency considers the underlying basis of the ratings and rationally determines that a color rating does not provide higher confidence in performance, the actual color rating assigned is inconsequential in the analysis. Cherry Rd. Techs.; Elec. Data Sys. Corp., B-296915 et al., Oct. 24, 2005, 2005 CPD para. 197 at 12. Here, the contracting officer credited PMT's purple rating under PPIRS and recognized that this rating was higher than ATAP's. The contracting officer also discounted the only written quality report for PMT, which was negative, because of its age and a lack of information about the reasons for this report. The contracting officer also acknowledged that PMT delivered 50 line items as opposed to ATAP's single line item, and found that, except for the discounted quality report for PMT mentioned above, there were no quality reports, negative or positive, about either offeror's line items. Given this absence of specific data, the contracting officer found that PMT's more numerous complaint-free deliveries did not indicate "a higher degree of confidence should be afforded PMT over ATAP" with regard to quality. Based on our review, we find that the contracting officer reasonably evaluated the offerors' respective quality past performance consistent with the RFP's evaluation scheme, and reasonably determined that the quality aspect of the offerors' past performance was not a significant discriminator between proposals. In this regard, we further find that the contracting officer reasonably determined that PMT's superiority under this factor did not indicate "a higher degree of confidence" that PMT would be more likely to provide items that would meet the agency's quality standards.

PMT also challenges the agency's evaluation of delivery past performance. It complains that the contracting officer relied on PPIRS scores without considering the "currency and relevance of the information, source of the information, context of the data, and general trends in contractor's performance," as required by the FAR. PMT's Second Supplemental Comments at 7; FAR sect. 15.305(a)(2).

Our review of the record confirms that the contracting officer considered all of the information required by the solicitation and the FAR. In this regard, the contracting officer evaluated the available PPIRS data, consulted with the Air Force PPIRS liaison, and reviewed PMT's contract files to confirm the validity of PMT's delinquencies, and to understand the reasons for and circumstances surrounding those delinquencies. The contracting officer also provided PMT with an opportunity to correct any errors in its PPIRS data. Based on the information available, the contracting officer determined that, even after inaccuracies were corrected, PMT delivered items late 36 percent of the time and was at fault for all of those late deliveries. Air Force Response to PMT's Supplemental Comments at 7; AR, Tab 29, Reevaluation Decision Document, at 10. In fact, of 12 late deliveries associated with Air Force contracts, 8 were in excess of 60 days late. Air Force Memorandum of Law at 12. This demonstrated to the contracting officer an "overwhelming[] . . . pattern of disregard on the part of PMT in meeting their contractual obligations for delivery." AR, Tab 29, Reevaluation Decision Document, at 14. Based on our review of the record, we find the contracting officer's assessment of PMT's delivery record to be reasonable.

PMT asserts that the contracting officer's conclusion that ATAP's delivery record was superior to PMT's is unreasonable, given that ATAP's delivery score of 100 percent was based only on one line item, whereas PMT's delivery record included many line items and many on-time deliveries. The contracting officer considered the number of line items upon which PPIRS scores were based, as well as PMT's on-time deliveries, but noted that PMT's significant number of late deliveries "warranted a diminished degree of confidence in their ability to perform and deliver on time." In so doing, the contracting officer did not give too much weight to the delivery aspect of past performance, but appropriately recognized it as a clear discriminator between the proposals. Given the "critical" nature of the work, we find the contracting officer's reasoning unobjectionable. AR, Tab 29, Reevaluation Decision Document, at 15.  (Precision Mold & Tool, B-400452.4; B-400452.5, April 14, 2009) (pdf)

During the course of this protest, Master Lock also argued that the agency’s evaluation of Evergreen’s past performance was unreasonable. As discussed above, Evergreen declined to accept order No. 2745, which was issued under a different contract. DLA acknowledges that it did not consider these events in its evaluation of Evergreen’s past performance. AR at 8. The agency contends, however, that it was not required to do so because the submission of a quote by a vendor under an ID/IQ contract does not result in a binding obligation. Thus, the agency argues, because Evergreen did not accept the order, there was no contract performance for the agency to evaluate.

The agency is correct that neither the submission of a quote by a vendor nor the issuance of an order by an agency results in a binding contractual obligation. Rather, the government’s order represents an offer that the vendor may accept either through performance or by a formal acceptance document. M. Braun, Inc., B-298935.2, May 21, 2007, 2007 CPD para. 96 at 3.

We disagree, however, with DLA’s view as to the relevance of a vendor’s rejection of an order to a past performance evaluation. A vendor who has been awarded an ID/IQ contract has a contractual relationship with the agency that awarded the underlying contract. Although the work required under any task or delivery order will only become a binding obligation on the parties if the vendor accepts the order, the underlying ID/IQ contract may itself have obligations. For example, a contract may require a vendor to accept orders placed by the agency within certain parameters. If a vendor were required to accept certain orders placed against the contract, but was unable to do so, this could be a matter relevant to the evaluation of that vendor’s past performance.

Our Office requested that the agency address “whether under the terms of the contract against which orders could be placed with Evergreen, vendors were required to fill orders, or whether [Evergreen] was free to decline to accept the order based on an inability to fill the order.” GAO Request for SAR, Apr. 29, 2008, at 3. The agency did not address our question, but instead argued that the matter was not appropriate for review under the past performance evaluation factor. SAR at 6. On this record, we are unable to determine whether the agency’s conclusion regarding the relevance of order No. 2745 to Evergreen’s past performance was reasonable.  (Master Lock Company, LLC, B-309982.2, June 24, 2008) (pdf)

Guam protests the agency’s evaluation of its past performance as marginal, contending that it has received accolades for performance of similar work in the past. The protester contends that if the agency had received information regarding its past performance from the reference Guam identified in its proposal, the information would have been favorable; in this regard, the protester questions the adequacy of the agency’s attempt to contact the reference by email, since the agency has not demonstrated that the email message was in fact received by the reference. The protester also challenges the agency’s reliance on the adverse CPAR regarding an ongoing Guam contract with the Navy for similar work. Guam has not refuted the substance of the performance problems described in that CPAR, either in its protest or when it had the opportunity to comment on the CPAR findings before the report became final in the PPIR. Rather, the firm only generally suggests that the agency’s consideration of the CPAR was improper because Guam had not realized that the CPAR had been posted on the PPIR even though the contract is not fully performed yet.

Our Office will examine an agency’s past performance evaluation only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations, since determining the relative merit of an offeror’s past performance is primarily a matter within the contracting agency’s discretion. See Pacific Ship Repair and Fabrication, Inc., B-279793, July 23, 1998, 98-2 CPD para. 29 at 3‑4. In conducting a past performance evaluation, an agency has discretion to determine the scope of the offerors’ performance histories to be considered, provided all proposals are evaluated on the same basis and consistent with the solicitation requirements. Federal Envtl. Servs., Inc., B-250135.4, May 24, 1993, 93-1 CPD para. 398 at 12. An agency is only required to use reasonable effort to contact an offeror’s references, and is not required to make multiple attempts to contact a firm’s past performance references. See OSI Collection Servs., Inc.; C.B. Accounts, Inc., B‑286597.3 et al., June 12, 2001, 2001 CPD para. 103 at 9.

Here, the agency points out that the past performance reference listed by the protester failed to respond to the agency’s email inquiry for relevant survey information. While Guam suggests that proof of the reference’s receipt of the email message is necessary to show a reasonable attempt at contacting the reference, the firm provides no support for its contention. Rather, in light of the RFP’s emphasis on the importance of the offeror providing reliable contact information (including, as was used here, email addresses) and ensuring cooperation from its references, we think the agency’s email inquiry was an adequate effort to contact the reference; the failure of the reference to respond does not show that the agency’s effort was inadequate (particularly in view of Guam’s apparent failure to ensure, or, at a minimum, encourage its reference to cooperate) or that the past performance evaluation was improper.

As stated above, the agency, consistent with the terms of the RFP, considered a comprehensive, recent, and relevant CPAR that rated the firm’s past performance as marginal and showed that Guam had problems with following procedures, safety issues, accidents, obtaining material, scheduling, manpower, and management. Guam had an earlier opportunity to respond to the information reported in the CPAR and, despite seeking an extension of time to do so, never refuted the CPAR, which then became a final report in the PPIR and, in accordance with the terms of the RFP, was properly considered as part of the firm’s past performance evaluation. The protester has provided no basis to question the reasonableness of the agency’s findings that such unfavorable recent performance of similar work suggests that similar instances of “re-work” or flawed performance could be anticipated under this contract, and that there is also a greater potential for agency involvement in monitoring performance, which may increase the ultimate cost of performance for the agency. Lastly, while Guam generally suggests that accolades for good past performance have been given to the firm in the past, as the agency points out, the firm did not include such information in its proposal, nor was it in the CPAR, and thus, we have no basis to object to the agency’s failure to credit the firm with such information.  (Guam Shipyard, B-311321; B-311321.2, June 9, 2008) (pdf)

Where an agency utilizes a lowest price technically acceptable source selection process, the FAR provides that past performance need not be an evaluation factor at all. However, when it is included, it cannot be utilized for the purpose of making a “comparative assessment”; rather, past performance is to be determined solely on a pass/fail basis. FAR sect. 15.101-2. Our Office has long held that pass/fail evaluations of capability issues, such as past performance, are tantamount to responsibility determinations, with the result that a rating of “unacceptable” in these areas is the same as a determination of nonresponsibility. See, e.g., Phil Howry Co., B-291402.3, B-291402.4, Feb. 6, 2003, 2003 CPD para. 33. Consistent with this premise, in the context of a lowest price technically acceptable evaluation scheme, where the contracting officer determines that a small business’ past performance is not acceptable, “the matter shall be referred to the Small Business Administration for a Certificate of Competency determination.”[4] FAR sect. 15.101-2(b)(1). By including past performance as an evaluation factor in the RFP’s lowest price technically acceptable evaluation scheme here, the Navy essentially carved out one element of a responsibility determination and utilized it as an evaluation factor in this set-aside. This, however, did not alter the fact that the pass/fail past performance evaluation in this context remained a matter of responsibility since, if the Navy had found CSPS’ past performance “unacceptable,” it would have been required to submit that determination to the Small Business Administration for a certificate of competency (COC) review. Since past performance ultimately is a matter of responsibility, the agency could look beyond an offeror’s compliance with the informational requirements set forth in the RFP, and therefore retained the discretion to find CSPS’ past performance acceptable despite CSPS’ failure to submit three past performance questionnaires. Because Frontier has not in any way challenged the Navy’s affirmative determination of responsibility with respect to CSPS, but instead only challenged CSPS’ failure to comply with the informational requirements under the past performance evaluation factor, there is no basis for our Office to conclude that the award to CSPS was improper. Citing our decisions in Prudent Techs., Inc., B-297425, Jan. 5, 2006, 2006 CPD para. 16 and Menendez-Donnell & Assocs., B-286599, Jan. 16, 2001, 2001 CPD para. 15 at 3 n.1, Frontier suggests that CSPS’ past performance evaluation was not a matter of responsibility but rather a question of technical acceptability and, as a consequence, the Navy would not have been required to refer CSPS to SBA for a COC review. Prudent Techs., Inc. and Menendez-Donnell & Assocs. are distinguishable, however, since, unlike the case at hand, the protesters in those cases disregarded the solicitation regarding the submission of specific information required by the agency for the purpose of evaluating experience or past performance and, based on this failure, their proposals were found to be technically unacceptable. In these cases, the agency did not have any basis to assess or judge the protesters’ capabilities because of their failure to comply with solicitation requirements. Here, in contrast to the cited cases where the protesters did not submit the required information, CSPS made an effort to comply with all of the RFP’s informational requirements, and in fact submitted four past performance questionnaires. It was only as a result of the Navy’s assessment of the information provided by CSPS that CSPS was deemed to have submitted only two “relevant” questionnaires. Notwithstanding this conclusion, however, the Navy determined that CSPS was capable of performing the work and its past performance acceptable--a determination ultimately regarding CSPS’ responsibility. (Frontier Systems Integrators, LLC, B-298872.3, February 28, 2007) (pdf)

Dellew argues that it should have received a significant confidence rating under the past performance factor; in light of its low price, this would have moved it into line for award. Specifically, Dellew notes that both firms performed base supply subcontracts and contracts to provide services that are part of base supply, and asserts that the reference ratings for its and DCSI’s prior contracts are essentially equal. Dellew argues that its receipt of two “very good” reference ratings rather than uniformly “excellent” ratings is a “slight difference” that “cannot justify rating Dellew below DCSI.” Protester’s Comments at 4. The past performance evaluation was unobjectionable. Although the SSA commented on Dellew’s relatively limited past performance, the record shows that the selection ultimately turned on Dellew’s and DCSI’s reference ratings. In this regard, while both firms received exemplary ratings, and Dellew emphasizes the similarity in the ratings, the fact is that the ratings were not the same--DCSI’s ratings were uniformly “excellent,” while Dellew received two “very good” ratings in addition to its “excellent” ratings. As discussed above, one of Dellew’s references also did not unequivocally state that he “definitely” would award a contract to Dellew again--instead of selecting “1” to indicate that he “definitely” would award a contract to Dellew today, he wrote in “1.5,” indicating that he was less than certain that he would make a new award to Dellew. While these appear to be relatively minor distinctions, there is no basis to conclude that the agency was not permitted to give weight to them in its price/technical tradeoff. As noted above, Dellew’s price advantage over DCSI was relatively minor--$24,736--and we think the agency reasonably could determine that DCSI’s edge under the past performance factor was sufficient to offset Dellew’s price advantage. Dellew argues that the SSA misread the past performance evaluation results. Specifically, Dellew points to the TEP’s summary of Dellew’s past performance, which stated, “1 contract not LRS type award.” AR, Tab 11, Dellew Past Performance Evaluations, subtab B, at 1. Dellew interprets this notation to mean that the TEP determined that three of its four listed contracts were LRS‑related, and that only one was not. Protester’s Comments at 2-3. Dellew then points to language in the SSA’s Briefing to the Evaluation Team, which reads: “Past performance shows 1 contract, however, it is not an LRS type contract.” AR, Tab 9, Source Selection Authority Briefing, at 13. Dellew concludes that the SSA based her award decision on incorrect information. While the language in the agency’s various evaluation documents is confusing, the record shows that the SSA was fully aware that Dellew had performed more than one contract, and that she determined that three of Dellew’s contracts did not involve the complexity, scope, or type of LRS work required under the RFP. Specifically, as noted above, the SSDD and Post-Award Debriefing set forth the SSA’s determination that Dellew did not “have much experience” with LRS contracts, and had broad LRS experience under only one contract. Dellew does not actually claim that three of its listed contracts were LRS contracts; rather, it merely focuses on the apparent misstatement in the TEP’s summary. This is not sufficient to establish that the evaluation was unreasonable given our finding that the SSA’s ultimate conclusions in fact are supported by the record. To the extent Dellew believes the agency should have found that three of its contracts were LRS contracts covering the work under the RFP, it has neither identified which of its four contracts it believes are of this type, nor shown where in its proposal it described the work under those contracts as broad LRS work. This argument therefore provides no basis for questioning the evaluation. (Dellew Corporation, B-298233.2; B-298233.3, September 13, 2006) (pdf)

Based on the record, we are not persuaded that the agency received past performance information from two of the references as asserted by Sayres, or that DOE improperly failed to consider the questionnaire received from a third. In this regard, the agency made repeated attempts to contact the references, including documented e-mail attempts on December 2, 2004 and on January 26, 2005, [6] but the references either did not respond or, in the case of the DOE reference, did not respond in a timely fashion. Although Sayres complains that the agency failed to take additional steps between December 2 and January 26 to contact the references, an agency is not required to make multiple attempts to contact past performance references. See OSI Collection Servs., Inc.; C.B. Accounts, Inc. , B-286597.3 et al. , June 12, 2001, 2001 CPD 103 at 9 (agency's single attempt to contact protester's reference found reasonable). An agency need only make a reasonable effort to contact a reference, and where that effort proves unsuccessful--such as here, where the information either was not received or was received too late in the evaluation to be reasonably considered--it is unobjectionable for the agency to proceed with the evaluation without benefit of that reference's input. See Lynwood Mach. & Eng'g, Inc. , B-285696, Sept. 18, 2000, 2001 CPD 113 at 5. (Sayres & Associates Corporation, B-295946; B-295946.2, April 25, 2005) (pdf)

We also find no error in the agency's failure to contact the ACO of Williamson's prior Marion contract. An agency is not required to contact each and every reference listed by an offeror in its proposal. Roca Mgmt. Educ. & Training, Inc. , B-293067, Jan. 15, 2004, 2004 CPD 28 at 3. The agency explains here that during the time of the evaluation, the ACO was on medical leave and could not be reached. The agency instead contacted the contracting officer's technical representative, who had worked with Williamson for 3 years, and he reported that Williamson's performance was "poor at best" under Williamson's Marion contract. Although Williamson asserts that the ACO would have given a more favorable report, the record does not support this. Infact, the record contains a letter to Williamson from the ACO, and several letters to Williamson from a different contracting officer, complaining of performance issues during the contract period. E.g. , AR, Tab 33, Past Performance Documents, exhs. 1, 3, 5, 8; see also exh. 7 (internal agency e-mails reflecting ACO's involvement in addressing performance issues with Williamson). (Williamson County Ambulance Service, Inc., B-293811.5; B-293811.6; B-293811.7, December 15, 2004) (pdf)

We find from our review of the record that the agency had a reasonable basis on which to conclude that the awardee's past performance was acceptable. Although it is true that one contract reference questioned Securitas's billing system and staff quality, this reference nevertheless rated the firm's overall performance as "average" and assigned an average numerical rating of 7.9 on a 10 point scale, where the rating sheet indicated that 10 was the highest quality score and 5 was acceptable. Agency Report, Tab N, Securitas Past Performance Evaluation, at 5-7. The awardee's other two contract references rated the firm's past performance as "excellent" and assigned average numerical scores of 9.8 and 9.3. With respect to Securitas's performance of the postal service contract in New Jersey, which was not considered in the agency's past performance evaluation, the agency has provided a letter from the United States Postal Service plant manager, who indicates that Securitas has acceptable performance. Agency Report, Tab J, Letter from United States Postal Service. Although AGS disagrees with the agency's judgment that Securitas's quote was entitled to an acceptable, "pass" rating based upon these references, its disagreement with the agency's judgment does not demonstrate that the evaluation was unreasonable. UNICCO Govt. Servs., Inc. , supra , at 7. (American Guard Services, Inc., B-294359, November 4, 2004) (pdf)

We find no basis upon which to question the past performance evaluation. Although the letters from prior MEPS commanders which Staten furnished with its proposal noted SIH's superior performance on the MEPS contract, the Army reports, and the record confirms, that SIH's performance had deteriorated in the most recent contract year. In this regard, the contracting officer had available monthly inspection reports, prepared by the contracting officer's representative (COR), which documented "discrepancies" in SIH's performance, including matters relating to applicants' health and safety, such as unsafe lighting, garbage strewn around the applicants' entrance, unsanitary food handling, and soiled utensils; failures to comply with specification requirements concerning the availability and selection of food for the applicants; and failures to afford applicants the same level of service and quality of facilities offered to other guests. These evaluation reports (including a report dated January 21, 2003) indicated that some of the discrepancies were "repeat" discrepancies, previously raised with the contractor but not yet resolved. Further, in addition to the monthly inspection reports, the contracting officer also had available negative evaluation sheets entitled "How Do We Rate? "that had been completed by MEPS applicants after their stay at the SIH facility (and had been retained so that the criticisms therein could be addressed with the contractor). These applicant evaluation sheets included a number of complaints, such as the fact that there were not sufficient amounts of food, that the food lacked flavor, and that the food was cold. While the applicant evaluation sheets retained by the agency may have represented only a portion of the evaluations returned by the applicants, they appear to confirm the criticisms in the COR's inspection reports and the agency's position that, at least recently, SIH's performance of the MEPS contract had been deficient. On this record, given the current deficiencies in its performance, we find that the agency reasonably concluded that SIH warranted no more than a satisfactory rating for past performance. (The Staten Island Hotel, B-292893.3, August 6, 2004) (pdf)

As indicated above, the CPAR were not the only source of information used to evaluate AIRODs performance of the prior contract for these services. In large measure, the agency's failure to obtain the most recent CPAR information was mitigated by use of past performance questionnaires and follow-up interviews with agency officials familiar with the company's performance on this contract. These materials generated ratings ranging from satisfactory to exceptional, with most of the ratings in the very good category. AR, Tab 6 at 16. In addition, officials at the Defense Contract Management Agency reported very favorably on their experience with AIROD on the earlier contract. Their favorable comments included that AIROD meets scheduling requirements, does a good job of handling unscheduled work and expanded scopes of effort, has good management, and makes impressive efforts to support customer needs. Id. In short, the omission of 1 years worth of favorable CPAR data did not cause the agency to overlook the company's favorable past performance on the predecessor contract. Moreover, we do not think AIROD can reasonably claim it was prejudiced by the agency's omission. Our Office will not sustain a protest unless there is a reasonable possibility of prejudice, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving the award. McDonald-Bradley , B-270126, Feb. 8, 1996, 96-1 CPD 154 at 3; see Statistica, Inc. v. Christopher , 102 F.3d 1577, 1581 (Fed. Cir. 1996). AIRODs challenges to its performance/confidence rating must be considered in light of the evaluation results: put simply, AIROD has already received the highest rating available under the agencys evaluation scheme for its past performance. For our Office to find prejudice here would require several layers of speculation. First, given that the agency obtained information about AIRODs performance of its predecessor contract from sources other than CPAR data, we would have to speculate that the missing CPAR information would materially enhance the agencys already favorable view of AIRODs performance. Second, we would have to speculate that this additional information would have resulted in a perceived difference between AIRODs and Singapore's exceptional ratings. Finally, we would have to speculate that the agency would have chosen to justify the expenditure of an additional3million to obtain the benefit of this perceived difference. In our view, there is nothing in this record to justify a conclusion that, but for the agency's failure to obtain the 2003 CPAR report, AIROD would have had a substantial chance of receiving the award. (AIROD Sdn. Bhd., B-294127, August 16, 2004) (pdf)

The evaluation here was unobjectionable; nothing in the RFP prohibited offerors from submitting more than three contracts for each team member or the agency from considering more than three. While the RFP required that each offeror submit specified information on its three most relevant contracts performed within the past 3 years for itself and its critical subcontractors, RFP § L-900(c)(1), it also specifically required that offerors submit two additional pages listing all contracts that the offeror was performing or had performed in the past 3 years and provided that the “Government may obtain and use performance information on any or none of these programs.” Id. § L-900(c)(3). Thus, there was nothing improper in the agency’s consideration of five contracts in evaluating the past performance of Cirrus’s subcontractor.  (Efficiency Management & Engineering Company;, B-292676; B-292676.2, October 31, 2003)

As the protester concedes, a procuring agency properly may use traditional responsibility factors as technical evaluation factors in a negotiated procurement, where the agency is to perform a comparative evaluation of those factors. Docusort, Inc., B-254852, Jan. 25, 1994, 94-1 CPD para. 38 at 6. The RFP here reflected such a determination on the Coast Guard's part, expressly establishing past performance as an evaluation factor, and the record shows that, in evaluating the offers and making the award decision, the agency relied on the past performance information provided by the offerors.  (Goode Construction, Inc., B-288655; B-288655.2; B-288655.3, October 19, 2001)

Comptroller General - Listing of Decisions

U. S. Court of Federal Claims - Key Excerpts

The TEP’s past performance ratings of BayFirst’s and VSI’s proposals were the most flawed aspect of this procurement. First, the ratings show disparate treatment of BayFirst and VSI. Second, the ratings evince numerous factual errors, which can only be explained by the Agency’s failure to carefully review and evaluate the past performance references in the offerors’ proposals and the Past Performance Questionnaires (PPQs) returned by the contact persons who had knowledge of the past contract performances of BayFirst, HSA, VSI and TSI. The disparate treatment and evaluation mistakes, for a factor that the solicitation described as the second most important evaluation factor, AR at 265, invalidate the award to VSI.

1. Disparate Treatment

BayFirst and VSI were treated very differently as to the past performance of their subcontractors. Pursuant to 48 C.F.R. § 15.305(a)(2)(iii) (2010), the procuring agency “should take into account past performance information regarding . . . subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.” Thus, since BayFirst and VSI each submitted references for the past contract performance of its subcontractor (HSA or TSI, respectively), a reasonable evaluation would have incorporated such experience into the past performance evaluations in a like manner. Here, however, the Agency’s past performance evaluation faulted BayFirst for not showing that it could “perform without a subcontractor,” AR at 1179, but assigned VSI its one strength in past performance for TSI’s experience as a subcontractor in Iraq, id. at 907.

It is impossible to rationally reconcile these two past performance evaluations. The narrative evaluation of BayFirst’s past performance appears to hold BayFirst to a standard not stated in the solicitation, i.e., that a prime contractor must show that it could perform the contract without a subcontractor, whereas VSI was accorded a strength for its subcontractor’s past performance in Iraq. Furthermore, when VSI’s PPQs indicated excellent past performance on contracts not similar to the contract awarded in this case, this fact was duly, and positively, noted by the TEP in the narrative evaluation summary of VSI’s past performance. See AR at 906 (“Four of [VSI’s] references were not of the size, scope []or complexity of the solicitation; however, VSI was rated Excellent by all which indicates successful performance.”) (emphasis added).

When, however, a BayFirst or HSA PPQ indicated excellent past performance on contracts not similar to the contract awarded in this case, these contracts were listed in the “weaknesses” section of the evaluation form, and a dismissive comment accompanied each excellent example of past performance: “While these [contract] services were rated Excellent; however, they do not account for the bulk of services required under this RFP.” Id. at 561. The narrative summary of BayFirst’s past performance evaluation did not note excellent performance on dissimilar contracts; instead, the TEP simply noted that “the past performance information contained in the proposal did not clearly indicate that [BayFirst] possesses the past performance experience necessary to perform without a subcontractor.” Id. at 560. Thus, the TEP treated the offerors’ past performance on these less relevant contracts quite differently.

A procuring agency must treat offerors fairly and impartially. 48 C.F.R. § 1.102-2(c) (2010). Here, BayFirst’s past performance was rated according to a different standard than VSI’s past performance. The court finds that the past performance evaluations of BayFirst and VSI show disparate treatment and were arbitrary and capricious.

2. Factual Errors in Past Performance Ratings

a. VSI’s Past Performance Ratings

Although defendant asks the court to ignore the mistakes in the Agency’s past performance evaluation of VSI, describing these mistakes as “minor discrepanc[ies]” or “incorrect recitation[s],” Def.’s Mot. at 38-39, the record shows that the TEP’s past performance evaluation does not reflect the facts before the Agency. The court reproduces here the narrative portion of the evaluation of VSI’s past performance:

The [VSI] proposal included five references for past performance where the Offeror served as the prime. Four of the references were not of the size, scope nor complexity of the solicitation; however, VSI was rated Excellent by all which indicates successful performance.

The fifth reference was of the same size, scope and complexity and provided an Excellent rating for performance. The Panel reviewed all the references provided by VSI as well as information provided from the Past Performance Information Retrieval System and assessed the Offeror’s past performance as Excellent. The Panel notes that the past performance information contained in the proposal strongly indicates that VSI possesses the experience necessary to perform with a good probability of success.

AR at 906. The court notes that in the first sentence of this narrative, the word “Offeror” must refer to VSI, because VSI is the offeror whose proposal is being rated. VSI’s proposal did indeed present five contract references, but the TEP is completely wrong as to the nature of these references: first of all, three are for VSI as prime; another is for TSI as prime; and, the last is for TSI as a subcontractor in Iraq.18 Id. at 659-65. Apparently, the TEP did not understand the distinctions made in VSI’s proposal, in which the past performance references are clearly divided into two categories: “VSI Past Performance” and “TigerSwan Inc. [TSI] Past Performance.” Id. at 659, 662. This error is troubling in light of the fact that the Agency evidently was concerned with the distinctions between prime and subcontractor past performance in BayFirst’s proposal evaluation.

The second sentence of the narrative is factually correct in only one respect: four contract references presented by VSI were not judged to be similar to the contract at issue here. The TEP erroneously reported, however, that VSI was rated excellent on all four of these less relevant contracts – in fact, only three excellent PPQs for these contracts were received by the Agency. See AR at 908-09. No PPQ was received from the fourth contract reference (of these less similar contracts), so the Agency had no basis for determining whether this contract performance was excellent or less than excellent. See id.

It is also clear from the evaluation narrative that the fifth contract reference was presumed to be for VSI, and for VSI as the prime contractor, although this subcontract in Iraq was in fact performed by TSI. AR at 906. In the very favorable description of this contract performance, which is cited as VSI’s sole strength in past performance, the Agency mistook a TSI subcontract with [ ] for a VSI contract with the United States Army:

VSI performed as the prime [contractor for the Army] providing administrative, logistical, operational, and linguist support to supply and manage qualified personnel in austere locations. Additionally, VSI provides armed security services ([ ] total personnel) at [ ] work sites throughout Iraq using a combination of staff. Security services provided include armed static guard services, unarmed escort services and armed Protective Security Detail (PSD) services among the various sites throughout Iraq. Work performed under this contract clearly demonstrated a history of successful performance on a contract of similar size, scope and complexity. The Offeror’s performance on this contract was rated as Excellent and was supplemented by an outstanding narrative recommendation on their performance provided by the contract’s Iraq Project Manager.

Id. at 907. This entire strength, assigned to VSI’s past performance, is factually inaccurate because TSI, not VSI, performed these services, and did so as a subcontractor, not the prime contractor. Because of the factual errors invalidating this strength assigned to VSI, and because of the other factual errors in the narrative portion of VSI’s past performance evaluation by the TEP, the court finds that the Excellent past performance rating assigned to VSI’s proposal was not rational. It might be that the TEP would have awarded a strength to VSI for TSI’s performance as a subcontractor in Iraq, but VSI’s Excellent past performance rating cannot be supported by the record before the court. See OMV Medical, 219 F.3d at 1344 (holding that this court may not justify an award decision for reasons other than those documented by the agency at the time of award).

b. BayFirst’s Past Performance Ratings

Turning to BayFirst’s past performance evaluation, there were two factual
errors in the ratings accorded by the TEP. The Agency again had difficulty distinguishing between the offeror’s and the subcontractor’s contract performance. One contract was identified as a weakness by the TEP because BayFirst “acted as a subcontractor” on a contract “not of the same scope, size []or complexity of the RFP.” AR at 561. This contract, however, was performed by HSA as the prime contractor, not by BayFirst as a subcontractor. Id. at 343-45. Furthermore, the court notes that the Agency received, via email, a PPQ for BayFirst’s past contract performance that was not considered by the TEP in its deliberations. The record indicates that this email was not delivered to the intended recipient [ ]. If the Agency intends to solicit reviews of past performance, full and open competition requires a delivery system that is less capricious and prone to unreported problems. The [ ] PPQ appears to have been timely sent and received. AR at 1475. The Agency failed to consider a PPQ that was arguably in its possession.  

The court finds that these were de minimis errors in BayFirst’s past performance evaluation, which, if there had been no other errors in the TEP’s past performance evaluation of proposals, could have been overlooked by this court.

3. The Agency’s Negative PPQ Regarding HSA’s Performance as the Incumbent Contractor

The TEP relied heavily on a PPQ that described HSA’s incumbent contract performance as marginal in many respects, and good in others. Several significant measures of performance were rated as marginal: business integrity and business conduct, overall quality of services provided, corrective actions/quality control, quality checks/inspections, personnel vacancy responses, and project manager. AR at 566-67, 569. Other measures were rated good: cooperation, compliance with contract terms, lack of proposed change orders, timely project completion, emergency response, delegation of authority to managers, and technical staff. Id. at 566-69. The Agency’s representative stated that the Agency would not award another contract to HSA. Id. at 569. The TEP reasonably considered this highly relevant past performance of BayFirst’s subcontractor to have been rated marginal by the Agency’s representative. Id. at 561.

The court includes here two quotes from this PPQ, to further explain the overall Marginal past performance rating assigned to BayFirst’s proposal:

Question 3. Business integrity and business conduct. [rating: marginal].

The company [HSA] was purchased by a large company (non 8a) that forced our office into re-soliciting this effort early. [The Office] was in the midst of transitioning the largest worldwide security services contract, with office resources already tapped, at the exact same time. Therefore, the unilateral actions of H[SA], which could not have come at a worse time, resulted in our office accelerating this procurement, caused disruption among the current HSA employees (regarding their employment future) and did not bode well with our office management.

Question 4. Given the opportunity, would your organization enter into another contractual relationship with this contractor in the future? [answer: no].

While [HSA] did not excel or exceed contract requirements, they generally met the requirements. However, while [the Office] cannot prevent the situation described in the answer to number 3 above, this change caused heavy office disruption that impacted our mission. This situation caused many of our highly technical professional labor category personnel to resign and seek employment elsewhere. Additionally, many HSA employees were not satisfied with the level of support provided to them via HSA and either requested that [the Office] convert their positions to [personal services contract or federal employee] positions in our office. To date, 30 employees have converted. Therefore, since this is a best value contract, the future preference would be to have a more motivated contractor who desired to meet the professional needs of their employees and attempted to exceed customer expectations.

AR at 569 [formatting altered]. Intervenor-defendant asserts that “the government was unhappy with” HSA’s past performance as the incumbent contractor. VSI Mot. at 24. Plaintiff states that this PPQ shows animus toward BayFirst’s subcontractor. Pl.’s Mot. at 29.

The court notes that an Agency may hold a critical opinion of an incumbent contractor and still conduct a rational and fair source selection process. See, e.g., Four Points by Sheraton v. United States, 63 Fed. Cl. 341, 344 (2005) (“ Criticism of Plaintiff’s performance on the incumbent contract in areas required to be evaluated or erroneous evaluations or inconsistent scoring do not rise to the level of motivation for bias.”). Here there has been no allegation of bad faith or bias and the court does not fault the Agency on such a basis. The record does support a finding that the flaws in the past performance evaluation of BayFirst’s and VSI’s proposals, flaws which include disparate treatment, factual errors, and the failure to consider a PPQ delivered to the Agency, were the result of the Agency’s failure to carefully review and properly evaluate the proposals and PPQs before it.  (BayFirst Solutions, LLC, v. U. S. and Veteran Solutions, Inc. No. 11-516C, January 9, 2012)  (pdf)

As discussed previously, JCN has succeeded in showing that the Navy’s action on this procurement was flawed in one respect. The failure on the part of governmental officials to complete evaluations for JCN’s prior work under government contracts and to submit those evaluations to the CCASS database was not in accord with the FAR and DFARS. See supra, at 12-14. The government counters that in this procurement the Navy properly looked to what was available on the CCASS and also that any error did not prejudice JCN because the SST in its final report recommended that [offeror 8] be placed ahead of JCN in the queue for one of the five contracts. Def.’s Cross-Mot. at 25 (quoting AR 1069); Def.’s Reply at 17; Hr’g Tr. at 62-63 (Mar. 19, 2004). These observations, however, overlook the fact that the Navy assigned [offeror 8] a “strength” on the basis of CCASS data, whereas the Navy discounted JCN’s rating on the basis of CCASS evaluations that the government did not have, but should have had, available. Nonetheless, although the absence of CCASS data for JCN operated to the detriment of JCN in this procurement, that lack was attributable to a dereliction of duty by officials concerned with other construction contracts. Furthermore, JCN had means available to it to confirm whether evaluations that should have been submitted in connection with earlier construction projects were in fact contained in the CCASS database. See supra, at 14. In these circumstances, the Court cannot determine that the Navy’s procurement decision in this case was based on significant error.  (J.C.N. Construction Company, v. U. S. and Patel Construction Company, Inc.,  No. 04-121C, Filed under seal April 15, 2004, Reissued April 26, 2004)