LMSI does not deny that, as is evident from the facts recited above, the Air Force advised the firm of the agency’s concerns with its performance on the VH-71 contract. Rather, LMSI asserts that it thereafter was misled by the Air Force into believing that the agency was satisfied with its response to the agency’s evaluation notice and, as a result, was deprived of a meaningful opportunity to further respond to the perceived VH-71 performance problems. Specifically, LMSI notes that, in the agency’s subsequent interim (pre-FPR) evaluation briefings in March, July, and September, LMSI was advised that its proposal had received a satisfactory confidence rating for past performance. It is clear from the record, however, that not only should LMSI have been on notice that the agency’s concerns with its VH-71 performance had not been fully resolved by LMSI’s explanation, but that, in any case, LMSI had a further opportunity to respond to the adverse past performance information that furnished the basis for the protester’s final past performance rating of little confidence. In this regard, in each of the three pre-FPR briefings, the Air Force noted that there had been “VH‑71 difficulties.” LMSI CSAR-X Initial Evaluation Briefing at 43; LMSI CSAR-X Interim Evaluation Brief at 58; LMSI CSAR-X Final Proposal Revision Brief at 55. In addition, in the March briefing, the agency noted that LMSI’s [DELETED] and, in the July and September briefings, referred to its “[c]oncerns with [LMSI’s] VH-71 contract performance.” LMSI CSAR-X Initial Evaluation Briefing at 43; LMSI CSAR-X Interim Evaluation Brief at 55; LMSI CSAR-X Final Proposal Revision Brief at 52. Moreover, the SSA noted in his source selection decision (as had the agency evaluators in their recommendation to the SSA) that LMSI’s final past performance rating of little confidence was based on a negative October 5 Contractor Performance Assessment Report (CPAR) for the VH-71 contract which, although it was first furnished to the Air Force by the Navy on October 12 (after the September 18 closing date for receipt of FPRs), had been previously furnished to LMSI for comment on or about July 10, and commented on by LMSI on October 2. SSD at 7; CSAR-X Final Evaluation Brief, Oct. 21, 2006, at 114, 116-17. As discussed in more detail below, the Navy CPAR rated LMSI’s VH-71 performance [DELETED]. Given the Air Force’s continuing expressions of concern over LMSI’s VH-71 performance, and the very unfavorable Navy CPAR that was furnished to LMSI in July, LMSI clearly was on notice of the need to further account for its VH-71 performance. We note, moreover, that LMSI in fact included an explanation of its VH-71 performance in its response to the CPAR--the agency considered this response in its final evaluation--and that LMSI could have provided an explanation in its FPR response as well, had it chosen to do so. We thus find no basis for concluding that LMSI was deprived of an opportunity to respond to the adverse past performance information on which the little confidence evaluation rating was based.  (Sikorsky Aircraft Company; Lockheed Martin Systems, B-299145.4, March 29, 2007)  (pdf)

Regarding communications concerning adverse past performance information to which the vendor has not previously had an opportunity to respond, we think that for the exercise of discretion to be reasonable, the agency must give the offeror an opportunity to respond where there clearly is a reason to question the validity of the past performance information, for example, where there are obvious inconsistencies between a reference's narrative comments and the actual ratings the reference gives the offeror. In the absence of such a clear basis to question the past performance information, we think that, short of acting in bad faith, the agency reasonably may decide not to ask for clarifications. NMS Mgmt., Inc., supra. Applying this standard here, we conclude that the agency reasonably exercised its discretion in deciding not to communicate with GD-OTS regarding the delays under the LRIP contract, since the information was based on first-hand knowledge of Navy personnel who evaluated the protester's past performance; thus, there was no reason for the Navy to have questioned the validity of its own conclusions. While the protester clearly disagrees with the Navy's conclusions about the LRIP delays and may have wished to respond to the information, that fact does not render the agency's decision to make award without holding discussions or clarifications unreasonable, given the permissive language of FAR Section 15.306(a)(2). Id. The protester's argument that offerors were treated unequally is similarly unavailing. According to GD-OTS, when the Navy raised its concerns with Alliant regarding its subcontracting plan, and afforded Alliant the opportunity to revise its plan as directed by the agency, the Navy effectively held discussions with Alliant, and thereby triggered a requirement for the agency to hold discussions with GD-OTS as well. (General Dynamics-Ordnance & Tactical Systems, B-295987; B-295987.2, May 20, 2005) (pdf)

As a preliminary matter, to the extent that the protester contends that it was improper for the agency to consider the adverse past performance information included in its RYG ¹ records without providing the protester with a further opportunity prior to award to explain the information, Federal Acquisition Regulation (FAR) 15.306(a)(2), which addresses clarifications and award without discussions, states in relevant part that where award will be made without conducting discussions, "offerors may be given the opportunity to clarify certain aspects of proposals ( e.g. , the relevance of an offeror's past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond) or to resolve minor or clerical errors." As the agency points out, and as discussed further below, Hanley has had ample opportunity to comment on the adverse past performance information in its RYG records. Given the permissive language of FAR 15.306(a)(2), and the fact that Hanley has been given ample opportunity to comment upon the past performance information, the fact that Hanley now wishes to provide further comments on the information in its RYG records does not give rise to a requirement for the agency to provide an opportunity to do so. See TLT Constr. Corp. , B-286226, Nov. 7, 2000, 2000 CPD 179 at 7-8; A.G. Cullen Constr., Inc. , B-284049.2, Feb. 22, 2000, 2000 CPD 45 at 5-6.
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1 The Red/Yellow/Green (RYG) Program is a Navy/Air Force automated system that classifies the performance risk associated with a particular contractor by assigning a color rating to the vendor's quality and delivery performance history; a green rating signifies low risk, yellow signifies moderate risk, red signifies high risk, and a neutral rating applies to contractors lacking recent or relevant past performance information. All offerors were advised that the past performance evaluations would be based upon the offerors' quality and delivery records reported under the RYG Program.

(Hanley Industries, Inc., B-295318, February 2, 2005) (pdf)

GTA additionally argues that it was not given an adequate opportunity to address the negative TACOM contract past performance information during discussions. The record shows, however, that GTA was explicitly told during discussions that the agency had received negative information regarding the performance of its 210,000 gallon fuel bladder contract. Specifically, GTA was told that 210k gallon fuel bladder: The respondent indicated you were experiencing some problems with the First Article. AR, Tab 10B, GTA EN G-PR-2, at 1. GTA was also provided a summary that stated performed first article test 3 times and rejected all three. AR, Tab 10B, GTA Briefing Slides, at 2. When conducting discussions, an agency must advise offerors of deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond, and must afford offerors an opportunity to revise their proposals to fully satisfy the agencys requirements. Federal Acquisition Regulation 15.306(d)(3). Clearly, based on the discussion here, GTA was aware that the agency had received negative past performance information concerning the TACOM contract and that the information received by the agency was characterized as a FAT failure. GTA, in fact, responded with a discussion of its performance on the TACOM contract, explaining difficulties in performing the FAT requirements and its efforts to correct the various problems. AR, Tab 10B, GTA EN Response G-PR-2, at 1-2. Based on this record, we find that the agency conducted meaningful discussions. (Cooley/Engineered Membranes; GTA Containers, Inc., B-294896.2; B-294896.3; B-294896.4, January 21, 2005) (pdf)

FRS also objects to the TEB's reliance on adverse past performance information from another source.  As noted above, the TEB learned of certain past performance information adverse to FRS, and considered the information credible because it was a statement against the interest of its author--another offeror who had been FRS's partner in a predecessor company.  An agency is not limited to the "four corners" of an offeror's proposal in the evaluation of proposals, and may use other information known by its own evaluators.  Arctic Slope World Servs., Inc., B-284481, B-284481.2, Apr. 27, 2000, 2000 CPD ¶ 75 at 7.  While the Forest Service could have given FRS the opportunity to respond to this adverse past performance information, see FAR § 15.306(a)(2), we see no basis to conclude that it was unreasonable for the agency not to do so.  See NMS Mgmt., Inc., B-286335, Nov. 24, 2000, 2000 CPD ¶ 197 at 3 (in the absence of a clear basis to question adverse past performance information, agency reasonably may decide not to ask for clarification).  In any event, FRS's focus on the agency's reliance on this information ignores the basic problem with its proposal.  Quite simply, it was the responsibility of FRS to demonstrate in its proposal past performance relevant to the instant procurement; it was not the agency's obligation during the evaluation process to fill in the gaps.  Since FRS had the burden of submitting an adequately written proposal, yet failed to do so, we have no basis to question the reasonableness of the agency's evaluation.  G&M Indus., B-290354, July 17, 2002, 2002 CPD ¶ 125 at 4.  (Forest Regeneration Services LLC, B-290998, October 30, 2002)  (pdf)

With regard specifically to clarifications concerning adverse past performance information to which the offeror has not previously had an opportunity to respond, we think that, for the exercise of discretion to be reasonable, the contracting officer must give the offeror an opportunity to respond where there clearly is a reason to question the validity of the past performance information, for example, where there are obvious inconsistencies between a reference's narrative comments and the actual ratings the reference gives the offeror. In the absence of such a clear basis to question the past performance information, we think that, short of acting in bad faith, the contracting officer reasonably may decide not to ask for clarifications.  Applying this standard here, we think that the contracting officer reasonably exercised his discretion in deciding not to communicate with Cullen regarding the adverse past performance information received from one of Cullen's references.  (A. G. Cullen Construction, Inc., B-284049.2, February 22, 2000)