It is Difficult to Successfully Challenge an Agency's Past Performance and Risk Evaluation
This article describes a GAO decision that highlights how difficult it is to prevail on a protest that challenges an agency’s rating of a proposal where the protest is not supported by anything more than a difference of opinion as to how much weight, or what score, should be assigned to a particular evaluation factor. Absent a showing that there was no rational basis for an agency’s evaluation, contractors should not expect the GAO to overturn an evaluation.
The GAO published a decision today that was originally issued on July 19, 2006, but delayed in being made public because of the need for redactions. The case involved a protest by East-West Industries, Inc. against the award of a contract to Regent Manufacturing, Inc. The solicitation was issued under request for proposals (RFP) No. FA8518-04-R-70801, advertised by the Department of the Air Force for multi-aircraft canopy cranes (MACC). East-West challenged the past performance and risk evaluations of its and Regent’s proposals. The protest was denied.
In its decision, East-West Industries, Inc. , B-297391.2; B-297391.3, the GAO stated that in reviewing a protest of an agency’s proposal evaluation, “our review is confined to determining whether the evaluation was reasonable and consistent with the terms of the solicitation and applicable statutes and regulations.” The GAO found that the evaluation of protester’s proposal under the past performance evaluation factor was unobjectionable where the agency reasonably concluded that only one of four prior contracts was of a magnitude and complexity essentially the same as the solicitation’s, and thus met the solicitation’s definition of very relevant. Since only one contract was rated very relevant and the protester received exceptional performance ratings under only two of its three relevant contracts, the GAO determined that the agency reasonably concluded that East-West’s performance record warranted assigning the firm a very good/significant confidence rating based on there being little doubt--rather than no doubt--as to its successful performance.
The protester also argued that the agency’s risk evaluation for Regent’s proposal was flawed. Specifically, East-West asserted that Regent’s [deleted] design, and prior delivery and safety/quality problems, indicated a moderate to high risk of increased costs, degradation of performance, and schedule disruption. The GAO disagreed and found that the evaluation of the awardee’s past performance and risk was reasonable, notwithstanding protester’s identification of alleged quality, safety, and delivery issues, where contracting officials did not have personal knowledge of majority of the issues, and fully considered those of which they were aware in finding no negative impact on awardee’s past performance rating.
In an interesting side comment that GAO stated it has recognized that in certain limited circumstances an agency evaluating an offeror’s proposal has an obligation (as opposed to the discretion) to consider “outside information” bearing on the offeror’s proposal, where the information in question was “simply too close at hand to require offerors to shoulder the inequities that spring from an agency’s failure to obtain, and consider this information.” International Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD para. 114 at 5. In those narrow instances where the GAO has applied the “too close at hand” principle, it has “required the protester to demonstrate that the outside information bearing on the offeror’s proposal was not just known by the agency generally but, rather, was known to the agency employees involved in the source selection process.” The GAO found that no such “outside information” was available to the agency in this case, however.
