In a decision issued by the Government Accountability Office, S4, Inc., B-299817, August 23, 2007, the disappointed offer protested an award to Croop-LaFrance, Inc., a lower priced offeror, under a Request for Proposals (“RFP”) to procure information technology desktop information services. The RFP specified that award would be based on a “technically acceptable-risk/past performance/price tradeoff,” which the RFP explained as follows:
For those Offerors who are determined to be technically acceptable, tradeoffs will be made between proposal risk, past performance and price. Proposal risk and past performance are of equal importance, and when combined, are considered significantly more important than price.
The agency determined that the ratings of past performance of S4, Inc. and Croop-LaFrance were essentially equal and that it was therefore appropriate that price should be the discriminator in making the source selection. S4 contended that the agency should have drawn more detailed distinctions in the past performance evaluations and that the agency improperly ignored significant distinctions. This sort of protest is very difficult to win because it calls upon the GAO to substitute its discretion for that of the agency – something that the GAO has consistently refused to do, except where there is no rational basis or the agency’s source selection, or procurements laws or regulations have been clearly violated.
Predictably, the GAO stated that “Determining the relative merits of an offeror’s past performance information is primarily a matter within the contracting agency’s discretion; we will examine an agency’s evaluation only to ensure that it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations.” Here, the RFP did not commit the Air Force to evaluating past performance only in the more selective manner that S4 desires. Rather, based on the GAO’s review of the record, the finding was made that the Air Force’s approach was consistent with the RFP, and that the overall rating of Croop-LaFrance as “high confidence” under the past performance factor was reasonable.
Continue Reading Determination of the Relative Merit of Past Performance Evaluation is a Matter of Agency Discretion