FAR 15.305 (a)(2)(iv):  Past performance - Neutral rating

Comptroller General - Key Excerpts

New Past Performance Evaluation and Prejudice

VariQ asserts that the agency deviated from the stated past performance evaluation criteria when it evaluated the awardee’s past performance as confidence, rather than as neutral. In reviewing a protester’s challenge to an agency’s evaluation of vendors’ past performance, our Office does not independently evaluate proposals; rather, we review the agency’s evaluation to ensure that it is reasonable and consistent with the terms of the solicitation and applicable statutes and regulations. CSR, Inc., B‑413973, B-413973.2, Jan. 13, 2017, 2017 CPD ¶ 64 at 5.

A review of the agency’s own evaluation of past performance information supplied by CWS, SITEC, and LSI supports a past performance rating of neutral for each of those offerors. As set forth above, the RFQ advised offerors that the government would evaluate “relevant past performance” and defined relevant as “similar to the IT services in the PWS and similar in nature, scope, size and complexity to the required services.” RFQ at 27. The agency determined that while LSI and CWS had some past performance that was similar in scope, it was smaller in size. AR, Tab J, Award Decision at 24-25. The agency determined that SITEC had past performance that was narrower in scope than the current requirement. Id. at 28. However, in all cases, because the agency did not find any negative past performance, it assigned each of those offerors a confidence rating. The agency concedes that neutral is the appropriate past performance rating for all of the offerors except VariQ, while asserting errors in the past performance evaluation did not prejudice the protester. Supp. COS at 27 (noting that the “Government does acknowledge that the past performance rating for [all of the offerors except VariQ] should have been deemed to be neutral”).

Competitive prejudice is an essential element of a viable protest; where the protester fails to demonstrate that, but for the agency’s actions, it would have had a substantial chance of receiving the award, there is no basis for finding prejudice, and our Office will not sustain the protest. Swets Info. Servs., B-410078, Oct. 20, 2014, 2014 CPD ¶ 311 at 14. However, GAO will “resolve doubts regarding prejudice in favor of the protester; a reasonable possibility of prejudice is sufficient to sustain a protest.” Alutiiq-Banner Joint Venture, B-412952 et al., July 15, 2016, 2016 CPD ¶ 205 at 11; see also Patriot Sols., LLC, B-413779, Dec. 22, 2016, 2016 CPD ¶ 376 at 5; Halbert Constr. Co., Inc., B-413213, Sept. 8, 2016, 2016 CPD ¶ 254 at 17-18.

The agency argues that VariQ was not prejudiced by the agency’s unreasonable past performance evaluation:

VariQ’s past performance did not change and even if the other three vendors had been given a “Neutral” rating for past performance the SSA could not have used that as a discriminator due to the fact that a “Neutral” rating can neither hinder nor help the vendor.

Supp. COS at 28. The agency’s assertion that the SSA could not have considered VariQ’s past performance confidence rating in VariQ’s favor in its tradeoff decision, because the other offerors’ proposals were rated neutral, is inconsistent with prior decisions of this Office. Although agencies may not rate an offeror that lacks relevant past performance favorably or unfavorably with regard to past performance, an agency may, in a price/technical tradeoff, determine that a high past performance rating is worth more than a neutral past performance rating. American Floor Consultants, Inc., B‑294530.7, June 15, 2006, 2006 CPD ¶ 97 at 5; see CMC & Maint., Inc., B-292081, May 19, 2003, 2003 CPD ¶ 107 at 4.

Here, the RFQ stated that the technical factor is more important than the past performance factor and that those two factors combined are significantly more important than price. RFQ at 26. The record shows that there are variances behind the technical factor ratings, the offeror’s prices are clustered relatively closely together, and, as the agency has now stated, VariQ’s proposal is the only one to have a past performance rating of confidence rather than neutral. Under these circumstances, we find a reasonable possibility that the protester was prejudiced. Consequently, we sustain VariQ’s challenge to the agency’s past performance evaluation.  (SITEC Consulting, LLC; VariQ Corporation; Logistics Systems, Inc. B-413526.4, B-413526.5, B-413526.6, B-413526.7: Apr 3, 2017)

Xtreme argues that it should have been included in the competitive range for the purposes of conducting discussions, and that it was wrong to exclude its proposal without even considering its price. Protest at 2. The agency responds that it was not required to include Xtreme in the competitive range because Xtreme’s proposal was not among the most highly-rated due to its failure to include any past performance information for the prime contractor. The agency also asserts that it is unlikely that Xtreme will be able to submit any relevant past performance information, because Xtreme admits it has none. Legal Memorandum at 7-8. In responding to the agency report, Xtreme argues that the agency could not properly exclude its proposal from the competitive range solely because of its neutral past performance rating. Comments at 3-4. On these limited issues, we agree with the protester.

Although the determination of whether a proposal is properly included within the competitive range is primarily a matter within the procuring agency’s discretion, the agency’s exercise of that discretion must be reasonable and consistent with law and regulation. See, e.g., Ryan P. Slaughter, B-411168, June 4, 2015, 2015 CPD ¶ 344 at 5-6; Smart Innovative Solutions, B-400323.3, Nov. 19, 2008, 2008 CPD ¶ 220 at 3. Where an agency’s exclusion of an offeror from the competitive range is unreasonable, inconsistent with the terms of the solicitation, or contrary to law or regulation, we will sustain a protest challenging the exclusion. See, e.g., Wilson Beret Co., B-289685, Apr. 9, 2002, 2002 CPD ¶ 206 at 8-9. In this regard, we have specifically held that an agency’s exclusion of an offeror from the competitive range based solely on a neutral or “unknown” past performance rating constitutes “unfavorable treatment” and is improper. Ryan P. Slaughter, supra.

As discussed above, the agency’s exclusion of Xtreme’s proposal from the competitive range was based solely on its neutral past performance rating, and on the erroneous conclusion that the neutral rating rendered Xtreme’s proposal not among the most highly-rated. For the record, it appears that Xtreme had a higher overall rating than one of the offerors included in the competitive range, as well as the lowest price of any offeror. With respect to the neutral rating, the FAR requires that an offeror without a record of relevant past performance, or for whom information on past performance is not available, may not be evaluated favorably or unfavorably on past performance. FAR § 15.305(a)(2)(iv). The agency’s conclusion that Xtreme’s proposal’s neutral rating made it a lower-rated offeror--and its use of that distinction alone to exclude Xtreme’s proposal from further consideration--was improper. Ryan P. Slaughter, supra. Given that the agency was not permitted by either the terms of the solicitation or FAR § 15.305(a)(2)(iv) to evaluate offerors favorably or unfavorably when they lack a record of relevant past performance, we sustain the protest.  (Xtreme Concepts Inc B-413711: Dec 19, 2016)

The protester also contends that the agency’s evaluation of past performance was unreasonable in several respects. For example, the protester challenges DOE’s evaluation of the past performance of North Wind’s subcontractor, WAI, under the incumbent contract. As set forth above, the agency assigned WAI’s performance under that contract a rating of neither favorable nor unfavorable. APT asserts that the agency unreasonably failed to consider several sources of adverse information regarding WAI’s performance. Protest at 18-20. Specifically, APT notes several reports of safety problems and performance problems, including news reports of a safety incident in 2013 related to ventilation and filtration systems at the TWPC; a second safety incident involving the venting of a waste drum; and an enforcement letter sent to WAI from DOE’s Office of Enforcement and Oversight that identified several problems with WAI’s performance under the incumbent contract. Id.

Where a solicitation requires the evaluation of offerors’ past performance, we will examine an agency’s evaluation to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria. Ball Aerospace & Tech. Corp., supra, at 9; TriWest Healthcare Alliance Corp., B‑401652.12, B‑401652.13, July 2, 2012, 2012 CPD ¶ 191 at 24. An agency’s evaluation of past performance is a matter of agency discretion which we will not disturb unless the agency’s assessments are unreasonable or inconsistent with the solicitation criteria. WAI-Stoller Servs., LLC; Portage, Inc., supra, at 10; Affolter Contracting Co., Inc., B‑410878, B‑410878.2, March 4, 2015, 2015 CPD ¶ 101 at 12. In assessing past performance, it is proper for the agency’s evaluation to reflect the totality of an offeror’s prior contract performance, and an agency may reasonably assign a satisfactory rating to an offeror despite the fact that portions of its prior performance have been unsatisfactory. Ball Aerospace & Tech. Corp., supra; Nuclear Production Partners LLC; Integrated Nuclear Production Solutions LLC, supra, at 18‑19.

Here, the agency’s contemporaneous evaluation record shows that, in evaluating WAI’s performance of the incumbent contract, the agency was aware of, and considered, the performance problems that WAI has experienced on the incumbent contract. Specifically, the SEB considered the information provided by the awardee in Form L-3 for this contract, the PPIRS reports for WAI’s performance of the contract, and the DOE Independent Oversight of TWPC Effectiveness Review. AR at 11-15; see AR, Tab E.3, DOE Independent Oversight of TWPC Effectiveness Review. In its Form L-3 for this project, WAI itself identified performance problems it encountered. Specifically, the Form L-3 states that “WAI experienced abnormal/near-miss events (breathing air outage, contamination events, and respiratory protection violations).” AR, Tab D, North Wind Proposal, at 39. Form L-3 also references a 2013 DOE letter to WAI regarding its performance problems; explains the corrective actions WAI took in response to the problems; and notes that WAI’s safety program earned four VPP (Voluntary Protection Program)[8] Stars of Excellence (2011-2014) and a Legacy of Stars excellence award (2014). Id.

With regard to the PPIRS reports, the SEB found that most of the recent ratings were either very good or satisfactory. AR, Tab E.1, SEB Report, at 62. While WAI received an unsatisfactory rating for cost control for the period of August 2014 to January 2015, which the SEB noted was highly unfavorable, the SEB also noted that only 15% of the contract here will be cost reimbursable, and that WAI’s unsatisfactory rating was confined to the area of cost control. Id.

In addition, the SEB report specifically discussed the performance and safety problems that WAI experienced:

[WAI] has experienced substantial problems in the areas of . . . respiratory protection violations, operational occurrences, and contamination control. These problems were of significance such that the DOE-OREM [Oak Ridge Office of Environmental Management] manager issued a formal letter to [WAI]. [WAI] responded quickly and appropriately and convened a collective significance review with formal corrective actions. The DOE convened an independent review of the Contractor’s effectiveness review and concluded that although there has been a significant improvement in facility operational awareness and control made, improvements are still warranted.

AR, Tab E.1, SEB Report, at 62-63.

After considering the numerous positive PPIRS ratings and positive narrative in the PPIRS reports from 2009 to the present, as well as some negative PPIRS ratings and information (including WAI’s own description of the events, the PPIRS ratings and narrative, and the DOE Independent Oversight of TWPC Effectiveness Review), the evaluators concluded that WAI’s overall performance of the incumbent contract should be considered neither favorable nor unfavorable. AR, Tab E.1, SEB Report, at 63; see AR, Tab E.3, DOE Independent Oversight of TWPC Effectiveness Review, at 1-220; Tab E.2, WAI PPIRS Reports for Incumbent Contract, at 1-48; Tab D, North Wind Proposal, at 37‑40.

Based on our review of the record here, we find no basis to question the agency’s evaluation of WAI’s performance of the incumbent contract. The record shows that the agency performed a comprehensive review of relevant past performance information, considered and downgraded WAI with regard to negative past performance, but also considered reports of corrective action and recent ratings of very good or satisfactory performance, and found WAI’s overall performance of the incumbent contract to be neither favorable nor unfavorable. Although APT complains that the SEB’s discussion of WAI’s performance problems does not specifically identify or discuss each identified problem, or each communication between WAI and the agency regarding these problems, see Protester’s Comments at 4, this information was included in the material considered by the evaluators, and the protester has not shown the agency’s overall evaluation of WAI’s performance of the incumbent contract as neither favorable nor unfavorable to be unreasonable. In sum, we have considered all of the protester’s challenges to the agency’s evaluation of past performance and find that none of them provides a basis on which to sustain the protest.  (Aerostar Perma-Fix TRU Services, LLC B-411733, B-411733.4: Oct 8, 2015)  (pdf)

Y&K next complains that the RFP unreasonably provides for assigning an acceptable past performance rating to an offeror having no relevant record of past performance in violation of FAR sect. 15.305(a)(2)(iv), which provides that under such circumstances an offeror may not be evaluated favorably or unfavorably. See Protest at 3; Comments at 1-2. In this respect, the protester contends that assigning an acceptable past performance rating to an offeror with no record of relevant past performance would have a significantly favorable impact on that offeror's overall evaluation rating. See Comments at 1.

The agency disagrees that its solicitation's rating scheme violates FAR sect. 15.305(a)(2)(iv). In this regard, the agency notes that its rating scheme is consistent with the Department of Defense's (DOD) source selection procedures. See Memorandum from the Under Secretary of Defense, Acquisition, Technology and Logistics, Department of Defense Source Selection Procedures, Mar. 4, 2011, App. A at A-2 (offeror without past performance record shall be determined to have unknown past performance and considered acceptable).

FAR sect. 15.305(a)(2)(iv) provides:

In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.

This provision embodies the principle that an offeror neither be punished nor rewarded for the lack of relevant past performance. Thus, we have found, consistent with this provision, that an evaluation scheme that penalizes an offeror for neutral past performance ratings is improper. Colson Servs. Corp., B-310971, et al., Mar. 21, 2008, 2008 CPD para. 85 at 12.

Likewise, an offeror should not have its competitive position improved because of a lack of relevant past performance. In the context of this procurement, where award will be made on a lowest-price, technically acceptable basis, assigning an acceptable past performance rating to offerors without relevant past performance will be, effectively, no different than assigning a neutral rating to that offeror's past performance. Accordingly, we see no basis to object to the RFP's stated methodology for evaluating past performance.  (Y&K Maintenance, Inc., B-405310.2, October 17, 2011)  (pdf)

Unstated Evaluation Criteria

O'Gara asserts that the agency's evaluation approach--based on the requirement that a past performance reference be found relevant or somewhat relevant to a majority of the PWS tasks in order to qualify as a relevant reference--represents an unstated evaluation criterion. O'Gara maintains that the agency instead should have evaluated the relevance of its references, such that O'Gara would receive credit for those aspects of its past performance that were relevant, regardless of whether that relevance extended to a majority of the PWS tasks. Protest at 27. The protester concludes that it should have received a rating other than neutral for each of its contracts.

We find no merit to this aspect of O'Gara's protest. Here, the RFQ expressly provided for consideration of the scope of an offeror's past performance references, and specifically defined scope as "[e]xperience in the areas defined in the PWS." RFQ amend. 1, at 5. This evaluation provision reasonably contemplates the agency's comparative evaluation of the similarity of those PWS tasks with the tasks covered in the vendors' past contracts. We therefore disagree with the protester that the agency applied an unstated evaluation factor.

We also have no basis to object to the agency's decision to base a finding of relevance on whether a vendor's past experience was comparable to a majority of the PWS tasks. See e.g., Ostrom Painting & Sandblasting, Inc., B‑285244, July 18, 2000, 2000 CPD para. 132 at 4-5 (where solicitation calls for multiple, distinct services and capabilities, agency reasonably may consider relevant only those prior contracts involving services that are the same as, or similar to, those called for under the solicitation). Here, the agency found O'Gara's past performance reflected very limited similarity, with none of its past performance references demonstrating experience in more than five PWS tasks. In this regard, as to its first contract (U.S. Marine Corps (USMC)), O'Gara's past performance was found either somewhat relevant or relevant under five tasks; as to its second contract (Department of State (DOS)), it was found somewhat relevant to relevant under four tasks; and as to the third contract (Navy EODTEU-TWO) it was found to have only very limited relevance under three tasks. Past Performance Evaluation at 4-6. Such limited experience was reasonably considered to represent a lack of relevant past performance overall, and, thus, warranted only a neutral rating.

O'Gara further asserts that its past performance should have been rated overall relevant because all of its contracts were found similar in magnitude. See O'Gara Comments at 5. Even though all of O'Gara's past performance contracts were evaluated as comparable in magnitude to the work solicited, we think the agency reasonably concluded that none of these contracts were sufficiently similar in scope, and thus reasonably rated O'Gara's past performance as neutral. CMC & Maint., Inc., B‑292081, May 19, 2003, 2003 CPD para. 107 at 3 (past performance references of similar magnitude but dissimilar scope reasonably evaluated as neutral); Ostrom Painting & Sandblasting, Inc., supra.  (O'Gara Training and Services, LLC, B-404901.2, July 28, 2011)  (pdf)

BSTS asserts that the agency's evaluation of its past performance as neutral was improper because its proposal included past performance information on contracts performed by its affiliated companies, which, it claims, should have been attributed to BSTS in the evaluation. BSTS Comments at 11. For example, BSTS cited the performance of Inuit Services, Inc. (ISI) on a dormitory/temporary lodging maintenance/management contract at Elmendorf Air Force Base (rated excellent) and two Navy installation support contracts (rated good to very good) performed by a joint venture that included Bering Straits Aerospace Services (BSAS).

An agency properly may consider the experience or past performance of an offeror's parent or affiliated companies where the firm's proposal demonstrates that the resources of the parent or affiliated company will affect the performance of the offeror. See, e.g., Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at 4. The relevant consideration is whether the resources of the parent or affiliated company--its workforce, management, facilities or other resources--will be provided or relied upon for contract performance, such that the parent or affiliate will have meaningful involvement in contract performance. Id. at 5. We find the agency reasonably determined that this was not the case here.

While BSTS claims credit for the past performance of its affiliated companies, the agency found that its proposal did not demonstrate how these companies would be involved in a way that would affect performance of the contract. BSTS's proposal stated that it was a wholly-owned subsidiary of Bering Straits Native Corporation (BSNC) and that the BSNC family of companies held some 50 federal contracts, including some covering family housing maintenance and base operations support services. BSTS Proposal at 179. However, apart from including experience and past performance descriptions for ISI's and BSAS's prior contracts, the proposal did not otherwise specifically identify these companies as providing workforce, management, facilities or other resources for the performance of this contract; indeed, the proposal was silent on any connection between BSAS and BSTS as it applied to this contract. Further, although BSTS proposed a deputy project manager who had been the project manager on ISI's Elmendorf contract, there was no explanation or description of this employee's duties on the former contract, how long he had performed, or how his involvement under the former contract warranted past performance credit for BSTS. In any event, that contract was valued at less than $2 million per year--below the $5 million threshold the agency established for a contract to be deemed relevant in the evaluation--and thus would not have been considered relevant for past performance purposes. Supplemental Agency Report at 7. In view of the small size of the Elmendorf contract and the limited information provided in BSTS's proposal regarding the application of resources and personnel from its affiliated companies, the agency reasonably concluded that there was no basis to credit BSTS with the past performance of either of those companies.

In a related argument, BSTS asserts that the agency treated it and Chugach unequally in the evaluation because the agency did consider the past performance record of Chugach's parent and sister companies in the evaluation. BSTS Comments at 10. This argument is without merit. Implicit in the agency's differing treatment was its recognition that Chugach's proposal provided sufficient information connecting the past performance of its parent and sister companies, while BSTS's proposal did not. In this regard, Chugach's proposal explained the provision of and reliance on its affiliated companies' workforce, management, key personnel, facilities and performance strategies in the performance of the Guam contract. Chugach Proposal at 2, B-1, C-1--C-4. For example, Chugach's proposal explained how it would transition key personnel from the current Guam COOM contract, which was performed by two Chugach sister companies; these same companies had performed other contracts considered by the agency in the past performance evaluation. Chugach also explained its planned reliance on an identified subject matter expert--the project manager on two contracts performed by named Chugach sister companies. Chugach Proposal at C-3, C-4. This explanation included a detailed description of the former project manager's responsibilities on the prior contracts and their relevance to the new contract. Id. In contrast, while BSTS noted that its proposed deputy project manager had performed as project manager on the Elmendorf contract, it did not make clear that it was for a sister company--instead identifying him as working for "Bering Straits"--and only identified his areas of expertise and proposed duties; it did not explain his prior work or how his performance made the sister company's past performance relevant to the work under the protested contract. BSTS Proposal at 4, 14, 38, 64. Based on the difference in specificity and detail between the two proposals, we think the agency reasonably considered the past performance of Chugach's affiliated companies, while finding the past performance of BSTS's affiliated companies not relevant.  (Bering Straits Technical Services, LLC, B-401560.3; B-401560.4, October 7, 2009) (pdf)

In its original proposal, MSI submitted contractor performance data sheets for five contracts, including information addressing each of the three subfactors. AR, Tab 11, MSI Proposal, Attach. 2. The agency found that the past performance for all three subfactors was lacking for three of the five subsystems. During the first round of discussions, the agency indicated to MSI that “[t]he references you provided relate to RF experience. The lack of past performance information related to three of the five subsystems of the MSS [is] something you may want to address (IR, synchronization and control, and signal measurement).” Protest, Oct. 15, 2008, Attach. H, E-mail from Agency to MSI, July 1, 2008. In its revised proposal, MSI submitted a narrative description of past performance for EWST--another wholly-owned subsidiary of the protester that was to deliver a critical piece of equipment--that contained information for three additional contracts. See id., Attach. K, Proposal Supplement, July 9, 2008, at 23. MSI’s second proposal revision did not address the issue of past performance.

After reviewing the revised proposals, the Navy assigned MSI a neutral (“Neither Favorable nor Unfavorable”) overall past performance rating. This conclusion was based on the Navy’s decision not to impute EWST’s past performance information to MSI; in the absence of EWST’s information, the agency concluded that MSI lacked the past performance called for by the RFP. AR, Supp. Document Prod., MSS Re-Evaluation of Final Revised Proposals, Aug. 20, 2008, at 1, 3. In this regard, while the agency ultimately decided not to take EWST’s information into account in rating MSI’s past performance, the record shows that the evaluators nonetheless did review that information and assigned EWST a rating of “favorable” for subfactor one under past performance. Id., Encl. 1 at 8-9. However, because the EWST information did not address either of the other two past performance subfactors--reliability and delivery--the evaluators rated EWST neutral for these two subfactors. Id.

The offerors’ past performance ratings became the evaluation discriminator; MSI’s proposal offered a price advantage over the awardee’s proposal, but the agency considered Amherst’s proposal, with its higher past performance rating of “highly favorable,” to be worth the approximately [DELETED] premium. See AR, Supp. Document Prod., MSS Re-Evaluation of Final Revised Proposals, Aug. 20, 2008, at 3-4. Award was made to Amherst, and this protest followed.

(Sections deleted)

In reviewing an agency’s evaluation of past performance, we examine the record to determine whether the evaluation was reasonable and in accordance with the stated evaluation scheme and applicable procurement statutes and regulations. The MIL Corp., B-294836, Dec. 30, 2004, 2005 CPD para. 29 at 5. Here, consistent with Federal Acquisition Regulation sect. 15.305(a)(2)(iv), the RFP stated that “[o]fferors who do not have same or similar past performance information reasonably available to the Contracting Officer will not be rated either favorable or unfavorable.” RFP at 71.

As noted above, the RFP required offerors to submit past performance data that addressed all three subfactors and indicated that the agency would not be responsible for seeking out missing information. The record shows, however, that the information regarding EWST that MSI furnished to the agency after discussions was incomplete, addressing only one of the three past performance subfactors--previous experience in developing and delivering similar systems, but not reliability and timeliness of delivery. AR, Supp. Document Prod., MSS Re-Evaluation of Final Revised Proposals, Aug. 20, 2008, Encl. 1 at 8-9. In light of the lack of information to establish the offeror’s past performance history under the two subfactors, the agency’s decision to assign MSI a past performance rating of neutral was reasonable and consistent with the RFP, even taking into account the information regarding EWST.

The protester argues that the lack of information regarding EWST’s past performance under two of the three subfactors is immaterial, because the other five past performance references MSI provided in its initial proposal did in fact address subfactors two and three. We disagree. MSI’s five original references themselves were incomplete in the sense that they addressed only two of the five MSS subsystems; MSI’s omission of the requested past performance information relating to the other three MSS subsystems was the subject of the agency’s discussion question to MSI, asking it to address its past performance as it relates to the other three subsystems. The RFP, in requesting past performance information the way that it did, that is, by setting out the three subfactors relevant to the past performance evaluation, asked offerors to describe not only their experience with particular system components, but also, specifically, the reliability and timeliness of delivery of those components. In discussions, the protester was explicitly advised that the firm had not addressed its past performance for three of the five subsystems. Simply, the protester failed to furnish any information with regard to reliability and timeliness of delivery for those subsystems identified during discussions.

The protester also asserts that, in discussions, the agency asked only for information related to subfactor one. We find such a narrow interpretation of the agency’s request unsupported. The discussion question identified “lack of past performance information” generally and did not limit it to subfactor one.

The RFP called for, but MSI did not provide, information on the reliability and timeliness of delivery of the equipment that was the subject of the supplemental past performance information offered in response to the concern raised during discussions. Because MSI failed to provide the information necessary to assess the past performance under these three contracts, we see no basis on which to question the reasonableness of the protester’s past performance rating of “neutral.”  (Herley Industries, Inc., B-400736.2, January 15, 2009) (pdf)

According to the protester, 3M has had prior contracts that were subject to Federal Acquisition Regulation (FAR) sections 52.219-8 (utilization of small business concerns) and 52.219-9 (small business subcontracting plan); 3M plans (indeed, is required) to have at least a portion of the contract performed within the U.S. because all offerors were required to use Calgon Carbon, a U.S. concern, as a supplier of one of the canister’s components; and 3M actually states in its proposal that, if necessary, it has meaningful opportunities to subcontract some of the work to small business concerns. The agency, while conceding that the applicable FAR clauses have been incorporated into two prior 3M contracts, states that it did not consider 3M to have been “subject to” those clauses, since the clauses were not enforced due to 3M’s status as a foreign concern. As for the subcontracts with U.S. concerns, the agency states that 3M was directed by the terms of the solicitation to use Calgon Carbon, a large U.S. business, and that a second subcontract, with another large U.S. concern, Lydall Corporation, is necessary because Lydall is the primary approved source for a component that it manufactures (the particulate filter media); the agency notes in this respect that TVI also proposed Lydall as a subcontractor for the particulate filter media. Finally, as for opportunities to use small U.S. concerns, the agency maintains that 3M’s proposal states that, because it has developed a supply chain of Canadian concerns, it does not have meaningful opportunities to subcontract with small U.S. concerns. The agency notes further that, because the offerors were directed to use Calgon Carbon as a subcontractor, this cannot be viewed as presenting a meaningful opportunity for subcontracting with a U.S. small business and, as for Lydall, since its subcontract represents only 2.5 percent of the total contract values, it also does not represent a meaningful subcontracting opportunity. We agree with the protester that 3M meets none of the criteria outlined in the RFP for a neutral rating. First, as noted, the agency concedes that the applicable FAR small business subcontracting clauses were included in two prior 3M contracts. Thus, while the agency may have chosen not to enforce the clauses, we do not think it was reasonable for the agency to conclude that 3M has never held past government contracts that were “subject to” the applicable FAR clauses. Second, the record shows that the current contract will not be performed entirely outside of the U.S. At least two U.S. concerns--Calgon Carbon and Lydall--are participating in performance of the contract as 3M subcontractors, and even if those firms are large businesses, it remains that a portion of the contract is being performed within the U.S. Finally, as TVI notes, 3M’s proposal does indicate that the firm has the ability to make meaningful small business subcontracting opportunities available, should it elect to do so.  (TVI Corporation, B-297849, April 19, 2006) (pdf)

The SSD compared the two proposals that were rated “exceptional/high confidence” to the protester’s proposal, which was rated “neutral/unknown confidence.” AR, Tab 17, Revised SSD, at 3. The agency concluded that, even though the two “exceptional/high confidence” offerors were higher in price, the higher ratings were worth the tradeoff: “The extremely high risk of awarding a contract to an offeror with no identifiable relevant performance record does not justify the cost savings.” Id. The agency then compared the two “exceptional/high confidence” offerors and concluded that the lower price of FloorPro merited award. Id. Although agencies may not rate an offeror that lacks relevant past performance favorably or unfavorably with regard to past performance, an agency may in a price/technical tradeoff determine that a high past performance rating is worth more than a neutral past performance rating. See CMC & Maint., Inc., B-292081, May 19, 2003, 2003 CPD para. 107 at 4. We believe that the agency’s source selection was reasonable and consistent with the RFP award criteria, which stated that past performance was less important than price. The protest provides no reasonable basis to challenge the agency’s determination.  (American Floor Consultants, Inc., B-294530.7, June 15, 2006) (pdf)

Greater Pacific maintains that it should have received a performance risk rating higher than neutral. In this regard, the protester’s proposal did not include any references, completed questionnaires or contract numbers for contracts previously performed, but merely described a contract managing the swim team at Capehart Pool at Anderson AFB. Greater Pacific argues that the swim team contract was relevant--and thus should have resulted in a rating higher than neutral--because it involved management of the swim team and assistant swim coaches, and required communication directly with the manager and assistant manager of the outdoor recreation department at the base. The evaluation was unobjectionable. As noted, the RFP called for a listing of prior contracts covering the same or similar services. The performance work statement (PWS) for the solicitation required the contractor, among other things, to provide lifeguards, follow a policies and procedures manual and quality control plan developed by the contractor, vacuum and scrub the pools, perform emergency clean‑up procedures of any foreign substance (such as blood or vomit) in the pool facility, and conduct inspections to ensure that all required services were being performed. PWS at 2, 3. The contract described in the protester’s proposal involved managing the swim team, with responsibility for providing swimming instruction, holding team tryouts and practices, planning team functions and competitions, and cooperating with other pool activities and personnel. Proposal at 4. In our view, the Air Force reasonably found that, as described, this contract did not encompass duties similar to those described in the PWS for the lifeguard services contract. This being the case, the agency reasonably rated Greater Pacific neutral for performance risk. There thus is no basis for us to object to the award. (Greater Pacific Aquatics, B-297654, February 2, 2006) (pdf)

At the time FRC submitted its proposal, it was a relatively new entrant into the flare business. FRC was so new that it had not in fact delivered any production units of flares by the August 3 closing date for receipt of proposals. [6] As a consequence, the agency assigned FRC a neutral rating of "unknown" for on-time delivery. FRC contends that its "unknown" rating was unjustified because the agency failed to consider deliveries it made after the RFP closing date, but before the date of award. Had these deliveries been considered, FRC argues, the agency would have recognized that it had a perfect record of on-time delivery. While the solicitation reserved to the government the right to consider past performance information with regard to an offeror up until the time of award, it did not require consideration of that information. Rather, under the terms of the solicitation, the agency was required to consider only an offeror's performance history for the 3-year period prior to the RFP closing date. Because the protester did not have a history of on-time delivery that was deemed relevant to the subject contract during the 3-year period prior to the RFP closing date, and because the protester does not allege, nor does the record suggest, that the agency treated offerors unequally in limiting its consideration of past performance to the period up through the RFP closing date, the protester's challenge to its neutral rating for on-time delivery is without merit. (FR Countermeasures, Inc., B-295375, February 10, 2005) (pdf)

It is true that protests to our Office regarding past performance evaluations and FAR 15.305(a)(2)(iv) have primarily involved the reasonableness of an agency's determination as to whether a particular offeror had or lacked relevant past performance. See , e.g. , MCS of Tampa, Inc. , B-288271.5, Feb. 8, 2002, 2002 CPD 52 at 4-6; Kalman & Co., Inc. , supra , at 8. However, we have also expressly found reasonable an agency's assignment of a "neutral" rating to an offeror's proposal under a past performance subfactor, where the agency reasonably determined that the offeror lacked relevant past performance under that subfactor, and even though the agency also determined that the same offeror presented relevant past performance that was evaluated favorably under other past performance subfactors. See Accurate Automation Corp. , B292403, B-292493.2, Sept. 10, 2003, 2003 CPD 186 at 3, 7-8; Maytag Aircraft Corp. , B-287589, July 5, 2001, 2001 CPD 121 at 11. Accordingly, the agency's argument that an agency may evaluate a lack of relevant past performance information unfavorably merely because the evaluation is being conducted under a subfactor to a past performance factor, rather than a past performance evaluation factor itself, is without merit. The agency also contends that the assignment of a "neutral" rating to MIL's proposal under the awards subfactor would be inappropriate because MIL did in fact "submit[] evidence of its experience in the form of its awards submission," although, as noted above, the agency concluded that these awards were not relevant. Agency Supplemental Report at 3. This position is also without merit. The key consideration as to whether an offeror's proposal should be assigned a "neutral" rating under a past performance factor or subfactor is not whether the offeror's proposal included any information regarding past performance, but rather, whether it included past performance information that the agency deemed relevant. See FAR 15.305(a)(2)(iv); Kalman & Co., Inc. , supra , at 8. In sum, having considered the circumstances here, including the agency's explanations for its actions, we cannot find reasonable the agency's evaluation of MIL's proposal as "red" under the awards subfactor to the past performance factor. (The MIL Corporation, B-294836, December 30, 2004) (pdf)

Following the evaluation, MW-All Star’s proposal was rated gray for past performance, yellow for experience, yellow for performance risk and green for technical. In assigning a gray (neutral) rating to the MW-All Star proposal for past performance, the SSA considered that, while All Star had substantial past performance, the MW-All Star joint venture entity had none. Source Selection Decision (SSD) at 17. Likewise, in rating the joint venture’s proposal yellow (acceptable) for experience, the SSA took into account All Star’s substantial experience, but determined that, because MW was a protégé with no experience, the joint venture proposal represented a moderate risk. Id. The SSA averaged the gray past performance rating and the yellow experience rating for a yellow performance risk rating. Id. Madison’s proposal, which offered the lowest price, was rated green for past performance, green for experience, green for performance risk, and green for technical. The Army made award to Madison based on its lower price and superior performance risk and technical ratings. MW-All Star maintains that the agency’s failure to factor All Star’s past performance into the joint venture’s past performance rating was inconsistent with Federal Acquisition Regulation (FAR) § 15.305(a)(2)(iii). However, this provision provides only that past performance evaluations “should” take into account past performance information regarding “predecessor companies, key personnel who have relevant experience, or subcontractors . . . ,” when relevant. We have held that this provision permits, but does not require, procuring agencies to consider the experience and past performance of these additional entities and personnel in evaluating an offeror’s past performance. Olympus Bldg. Servs., Inc., B-282887, Aug. 31, 1999, 99-2 CPD ¶ 49 at 4; see also TyeCom, Inc., B-287321.3, B-287321.4, Apr. 29, 2002, 2002 CPD ¶ 101 at 7 (in appropriate circumstances, a procuring agency may, but is not required to, consider the past performance of other than the performing entity).[4] Accordingly, since the solicitation did not provide that the agency would consider the past performance of each member of a joint venture, the agency properly rated MW-All Star’s proposal gray for past performance based on the joint venture’s lack of a performance history.  (MW-All Star Joint Venture, B-291170.4, August 4, 2003) (pdf)

In its proposal, BRC described five contracts (involving, for example, configuring and maintaining commercial software applications and providing user support) performed within the past 3 years for the federal government, which were valued, according to BRC, at $600,000, $80,000, $180,999, $2.5 million (a specific task order), and $446,107. As stated above, the RFP specifically advised that the total estimated contract value for this procurement was $11,258,750. Since the value of each of BRC’s prior contracts, as shown above, was significantly less than the estimated value of the current procurement, we believe the agency reasonably determined that BRC failed to demonstrate past performance under contracts similar in size and complexity to the requirements of the RFP. Accordingly, we have no basis to question the reasonableness of the agency’s assignment of a neutral rating to BRC’s proposal for the past performance evaluation factor which shows, consistent with the terms of the RFP, that the agency did not penalize BRC for failing to demonstrate past performance similar to that required by the RFP. See FAR § 15.305(a)(2)(iv).  (Bevilacqua Research Corporation, B-293051, January 12, 2004) (pdf)

As indicated above, the RFP clearly informed offerors that both “scope and magnitude” would be considered in determining relevance, and this reasonably includes consideration of contracts of similar dollar size and services. In our view, the agency was not unreasonable in determining that contracts less than 50 percent of the annual government estimate were too small to be relevant, or that contracts unrelated to custodial services were similarly not relevant. Given that CMC did not submit a single past performance reference of similar scope and magnitude to that of the RFP, the agency's rating of neutral was reasonable. Ostrom Painting & Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD ¶ 132 at 4-5. CMC's disagreement with the agency's judgment on this point is insufficient to show it was unreasonable. Westinghouse Gov't and Envtl. Servs. Co., Inc., B-280928 et al., Dec. 4, 1998, 99-1 CPD ¶ 3 at 17.  (CMC & Maintenance, Inc., B-292081, May 19, 2003)  (pdf)

Although FAR § 15.305(a)(2)(iv) requires an agency to assign a neutral rating where past performance information is not "available," here, the protester's proposal represented that it had 4 years experience performing like services and that its references were available upon request.  The information thus was available, but FRS chose not to present the information in its proposal, in direct contravention of the RFP's instructions.  In our view, an offeror cannot simply choose to withhold past performance information--and thereby obtain a neutral rating--where the solicitation expressly states that the information should be furnished, and where the information is readily available to the offeror.  Menendez-Donnell & Assocs., B-286599, Jan. 16, 2001, 2001 CPD ¶ 15 at 4.  (Forest Regeneration Services LLC, B-290998, October 30, 2002)  (pdf)

We have held that, when FAR sect. 15.305(a)(2)(iv) applies, ratings of zero generally cannot be reasonably viewed as neutral ratings, and they thus violate the requirement that an offeror without past performance information may not be evaluated favorably, or unfavorably. Meridian Mgmt. Corp., B-285127, July 19, 2000, 2000 CPD para. 121 at 3 n.2.  As explained above, however, the agency recalculated Chicataw's score using a rating of 2.5 for neutral. That score is the mid-point of the five-point range used to rate an offeror's prior performance, and appears to be consistent with the above-cited FAR requirement, and with our prior decisions. See Braswell Servs. Group, Inc., B-278921, B-278921.2, June 17, 1998, 98-2 CPD para. 10 at 7-8; Oceaneering Int'l, Inc., B-278126, B-278126.2, Dec. 31, 1997, 98-1 CPD para. 133 at 7-8.  (Chicataw Construction, Inc., B-289592; B-289592.2, March 20, 2002)

With regard to the one contract that the agency considered relevant, the record shows that the contracting officer sent a facsimile with a past performance questionnaire to the e-mail address of the identified point of contact for the private firm and that the e-mail was returned by that firm's server with a notation that the listed e-mail address had fatal errors. Agency Report, Tab 9, Past Performance Questionnaires for MCS, at 1. The contracting officer then contacted the identified reference by telephone, resent the e-mail, and remained on the telephone until receipt of the e-mail was orally confirmed. When the e-mail was not answered within a few days, the contracting officer again contacted the reference by telephone and the contracting officer reported that the reference responded that "he would get to it." Agency's Hearing Comments at 2. The contracting officer called twice after that to inquire as to the status of the past performance questionnaire and left a message. Finally, the contracting officer called again and was informed by an unidentified administrative person that the firm would not be submitting the past performance questionnaire for MCS. Id. For our Office to sustain a protest challenging the failure to obtain a reference's assessment of past performance, a protester must show unusual factual circumstances that convert the failure to a significant inequity for the protester. Advanced Data Concepts, Inc., B-277801.4, June 1, 1998, 98-1 CPD para. 145 at 10. Here, we think that the agency reasonably found MCS's performance risk assessment to be neutral, as defined in the RFP, given that the agency had not received a completed past performance questionnaire on behalf of MCS for a relevant contract, after repeated attempts, and therefore, there was no past performance record for that firm. Id.  (MCS of Tampa, Inc., B-288271.5, February 8, 2002)

Even if we assumed, though, for the purpose of this analysis that the agency had a reasonable basis for declining to attribute the project director's and subcontractor's experience to Symtech, the resulting lack of experience could not properly have led to a negative past performance rating for Symtech. The FAR instructs that in the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance, FAR § 15.305(a)(2)(iv), meaning that the contracting officer could not have evaluated Symtech's past performance as weak based on its lack of corporate experience in performing logistics contracts.  (Symtech Corporation, B-289332, February 19, 2002)

As discussed above, the agency concluded that the narrative description of a "good" rating--that is, "adequately sufficient" with no strengths or weaknesses--most accurately reflected the regulatory requirement for a "neutral" rating. We find that the agency reasonably equated a lack of past performance history with a past performance history that was neutral, in the sense that it was neither positive nor negative. It is reasonable for an agency, as the Navy did here, to treat an offeror without past performance information as equivalent to one with past performance that was marked neither by strengths nor by weaknesses.[10] In concluding that this is what the Navy did here, we rely on the underlying substantive definition of the ratings, rather than the connotation of the label attached to the definition (since the underlying definition is, we agree, at odds with the "good" label). In sum, we find that the Navy reasonably evaluated Phoenix Marine's past performance.  (Oceaneering International, Inc., B-278126; B-278126.2, December 31, 1997)

Comptroller General - Listing of Decisions

For the Government For the Protester
New SITEC Consulting, LLC; VariQ Corporation; Logistics Systems, Inc. B-413526.4, B-413526.5, B-413526.6, B-413526.7: Apr 3, 2017 TVI Corporation, B-297849, April 19, 2006 (pdf)
Xtreme Concepts Inc B-413711: Dec 19, 2016 The MIL Corporation, B-294836, December 30, 2004 (pdf)
Aerostar Perma-Fix TRU Services, LLC B-411733, B-411733.4: Oct 8, 2015  (pdf) Symtech Corporation, B-289332, February 19, 2002  
Y&K Maintenance, Inc., B-405310.2, October 17, 2011 (pdf) Meridian Management Corporation, B-285127, July 19, 2000  (pdf)
O'Gara Training and Services, LLC, B-404901.2, July 28, 2011  (pdf) National Aerospace Group, Inc., B-281958; B-281959, May 10, 1999  (simplified acquisition procedure)
Bering Straits Technical Services, LLC, B-401560.3; B-401560.4, October 7, 2009 (pdf)  
Herley Industries, Inc., B-400736.2, January 15, 2009 (pdf)  
American Floor Consultants, Inc., B-294530.7, June 15, 2006 (pdf)  
Greater Pacific Aquatics, B-297654, February 2, 2006 (pdf)  
FR Countermeasures, Inc., B-295375, February 10, 2005 (pdf)  
MW-All Star Joint Venture, B-291170.4, August 4, 2003 (pdf)  
Bevilacqua Research Corporation, B-293051, January 12, 2004 (pdf)  
CMC & Maintenance, Inc., B-292081, May 19, 2003  
Forest Regeneration Services LLC, B-290998, October 30, 2002)  (pdf)  
Chicataw Construction, Inc., B-289592; B-289592.2, March 20, 2002  (PDF Version)  
MCS of Tampa, Inc., B-288271.5, February 8, 2002  
Medical Information Services, B-287824, July 10, 2001  
Maytag Aircraft Corporation, B-287589, July 5, 2001  
Thomas Brand Siding Company, Inc., B-286914.3, March 12, 2001  
Boland Well Systems, Inc., B-287030, March 7, 2001  
Menendez-Donnell & Associates, B-286599, January 16, 2001  (pdf)  
SWR Inc., B-286044.2; B-286044.3, November 1, 2000  
SDS International, B-285822; B-285822.2, September 29, 2000  (PDF Version)  
Ostrom Painting & Sandblasting, Inc., B-285244, July 18, 2000  (PDF Version)  
Braswell Services Group, Inc., B-278921.2, June 17, 1998  (PDF Version)  
Oceaneering International, Inc., B-278126; B-278126.2, December 31, 1997  (PDF Version)  


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