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FAR 15.305 (a)(2)(iii):  Past performance - Key personnel, predecessor companies, subcontractors, teams, affiliates

Comptroller General - Key Excerpts

New Desbuild argues that Edifice’s proposal did not demonstrate the requisite experience to be found technically acceptable. Protest at 10; Desbuild Comments, Oct. 28, 2016, at 2. Of relevance here, the solicitation provided that, to be considered technically acceptable under the experience factor, an offeror had to demonstrate successful experience as a general construction contractor responsible for the construction of at least two similar projects completed within the last five years with a total cost of not less than $2.5 million. RFP Amend. 6, Sept. 14, 2016, at 2. To be considered “similar,” a project had to include all of the following three “characteristics:”

1)Project involved the construction of any similar type of rated (min. rated K-4) vehicle perimeter security barrier system;

2)Project involved all of the following disciplines: landscape (including planting of trees and shrubs, installation of hardscape such as pavers and lighting), civil engineering (including utility coordination), and structural engineering;

3)Project involved methods used to mitigate noise affecting occupied surrounding buildings. In order to satisfy this element, offerors must describe the type of noise constraint and mitigation methods used to manage noise during construction in its proposal.

Id. at 3. The RFP further provided that the experience of an offeror’s subcontractors would not be considered in evaluating the experience of the offeror. Id. Instead, “the Offeror itself must satisfy the experience factor[.]” Id.

The record reflects that Edifice identified two projects. AR, Exh. 1b, Edifice Technical Proposal, at 3-7. GSA determined that Edifice was the general construction contractor for both projects and that both projects satisfied the solicitation’s requirements to be considered “similar projects.” AR, Exh. 2, TEB Report, at 2‑5. Hence, GSA assigned Edifice’s proposal a rating of acceptable under the experience factor. Id. at 2.

Desbuild contends that neither project met all of the requirements to be rated acceptable. Desbuild Comments at 1, 5. Although Desbuild raises a number of arguments in this respect, see id. at 3‑5, we find that none provides a basis to sustain the protest. We address one primary argument below.

Desbuild argues that Edifice’s second project did not meet the requirement that the offeror, not its subcontractors, satisfy the experience factor. Id. at 4; Desbuild Supp. Comments, Nov. 14, 2016, at 3. Specifically, Desbuild alleges that Edifice did not self-perform the work described under the second characteristic, i.e., construction of any similar type of rated (min. rated K-4) vehicle perimeter security barrier system. Desbuild Comments at 4. Rather, Desbuild contends that Edifice’s subcontractor on the project “provided K-4 rated vehicle barriers, bollards and temporary fencing.” Id. (quoting AR, Exh. 1b, Edifice Technical Proposal at 7). Thus, Desbuild contends that Edifice’s proposal failed to demonstrate that Edifice, as the offeror, self-performed all of the work described in the three mandatory characteristics, and, therefore, that its proposal should have been determined to unacceptable under the experience factor.

GSA disagrees with the protester’s interpretation that the offeror had to self-perform the work described under the three mandatory characteristics. Supp. MOL, Nov. 7, 2016, at 3. Rather, GSA argues that the plain language of the solicitation required the offeror to demonstrate successful experience as the general construction contractor “responsible for the construction” of at least two similar projects. Id. (quoting RFP Amend. 3 at 2). According to GSA, the term “responsible” does not require a contractor to self-perform all of the work. Id. at 4. Rather, the contractor must be fully accountable for project delivery, including the fulfillment of all contract requirements. Id. at 4 n.8. Hence, GSA contends that, under the terms of the solicitation here, offerors could submit contracts in which subcontractors performed the work, provided that the offeror served as the prime contractor responsible for general oversight of the project. Id. at 4. Having concluded that Edifice was the general contractor responsible for a project involving all three mandatory characteristics, GSA argues that its evaluation was reasonable and consistent with the terms of the solicitation. Id. at 3-4.

Where a protester and agency disagree over the meaning of solicitation language, we will resolve the matter by reading the solicitation as a whole and in a manner that gives effect to all of its provisions; to be reasonable, and therefore valid, an interpretation must be consistent with such a reading. Wilson 5 Serv. Co., Inc., B‑412861, B‑412861.2, May 27, 2016, 2016 CPD ¶ 154 at 5. A solicitation is not ambiguous unless it is susceptible to two or more reasonable interpretations. WingGate Travel, Inc., B‑412921, July 1, 2016, 2016 CPD ¶ 179 at 7. If the solicitation language is unambiguous, our inquiry ceases. Id. Based on our review of the solicitation, we conclude that the agency’s interpretation of the solicitation, when read as a whole, is reasonable, and the protester’s interpretation is not reasonable.

Here, the solicitation provided that “the Offeror itself must satisfy the experience factor[.]” RFP Amend. 6 at 3. Under the experience factor, an offeror was required to “demonstrate successful experience as a General Construction (GC) Contractor responsible for the construction of at least two (2) similar projects[.]” Id. at 2. Similar projects were defined as projects involving all three mandatory characteristics. Id. at 3. Contrary to the protester’s contentions, however, the solicitation did not require the offeror to self‑perform the work described under the three characteristics. In this regard, the protester conflates the experience that an offeror must demonstrate under the experience factor, i.e., that of a prime contractor responsible for a project, with the definition of a “similar project.” Our review of the record demonstrates that GSA followed the clear and unambiguous terms of the solicitation and reasonably concluded that Edifice’s second project met the requirements of the solicitation because Edifice was the general construction contractor “responsible” for a project that was determined to be similar. AR, Exh. 2, TEB Report, at 4. Accordingly, we find the agency’s evaluation to be unobjectionable.  (Desbuild Inc. B-413613.2: Jan 13, 2017)


Next, Global argues that the agency unreasonably evaluated the past performance of SGT’s primary subcontractor, ENI. As stated above, the solicitation instructed offerors to “clearly indicate the percentage of work that . . . subcontractor(s) will perform,” and it provided that subcontractor past performance would be “given weight relative to the amount of effort under the solicitation that the subcontractor is proposed to perform.” RFP, amend. No. 0001, at 3. As also stated above, SGT’s proposal indicated that ENI would perform 44 percent of the effort. AR, Tab 5.b, SGT Technical Proposal, at II-2-7. Global alleges that the agency “made no effort to quantify the percentage of [ENI’s] level of effort relative to the whole contract” or “appropriately weigh[] ENI’s Past Performance.” Comments at 11-15; Supp. Comments at 2-6. Based on this, Global claims the past performance evaluation was flawed. Comments at 11-15; Supp. Comments at 2-6. For the reasons discussed below, we disagree.

The evaluation of an offeror’s past performance, including the agency’s determination of the relevance and significance of an offeror’s performance history, is a matter of agency discretion, which we will not find improper unless it is inconsistent with the solicitation’s evaluation criteria. CLS Worldwide Support Servs., LLC, B-405298.2 et al., Sept. 11, 2012, 2012 CPD ¶ 257 at 15; Nat’l Beef Packing Co., B-296534, Sept. 1, 2005, 2005 CPD ¶ 168 at 4. In addition, the relative merits of an offeror’s past performance information is generally within the broad discretion of the contracting agency. See Paragon Tech. Group, Inc., B‑407331, Dec. 18, 2012, 2013 CPD ¶ 11 at 5. A protester’s disagreement with the agency’s judgment does not establish that the evaluation was unreasonable. FN Mfg., LLC, B-402059.4, B-402059.5, Mar. 22, 2010, 2010 CPD ¶ 104 at 7.

Here, the TET’s evaluation report expressly states that SGT’s proposal “estimated that [ENI] will perform 44% of” the tasks outlined in the SOW. AR, Tab 6.c, TET Rep., at 19. The report also details the work ENI performed under the past effort. Id. Regarding the scope of the effort, the TET found as follows:

The contract is the same in scope because [ENI] was a prime contractor in the [National Mesonet Program] providing the same functions now sought with the present RFP. ENI collected detailed mesonet network observing system metadata and delivered this information to NOAA . . . for use in its operations.

Id. Regarding the magnitude of ENI’s effort, the TET noted that the contract’s annual value was approximately $3 million, which was found to be “somewhat relevant” compared to the $15 million annual value of the current requirement. Id. at 20. Ultimately, the TET concluded that based on its findings regarding both the scope and magnitude of the effort (including an “economy of scale” analysis in the area of magnitude, ENI’s past performance was highly relevant to the current requirement. Id.

Returning to Global’s claim, the firm is correct that the TET did not expressly state what specific weight ENI’s past performance was given. It is inferential from the TET report, however, that the three past performance efforts listed in SGT’s proposal--including ENI’s effort--were given equal weight. See AR, Tab 6.c, TET Rep., at 20-21. While Global apparently believes the TET should have given ENI’s past performance less weight, we find the agency’s actions unobjectionable for several reasons. First, the TET expressly recognized the percentage of effort that ENI was proposed to perform. Id. at 19. Second, that level of effort was significant (44 percent, or nearly half). Finally, ENI’s past effort was found to involve precisely the same work as the current requirement. Id. On this basis, Global’s claim regarding the evaluation of ENI’s past performance is denied.

Global also claims that the agency’s evaluation of the two firms’ past performance was unequal. Comments at 15-19; Supp. Comments at 6-7. In this regard, Global notes that one of its past performance efforts, which was valued at approximately $8 million, was assessed as relevant. Comments at 16. Global contrasts this with ENI’s past effort that was valued at approximately $3 million and assessed as highly relevant. Id. at 17. Because the dollar value of ENI’s past effort was lower, Global argues, the agency’s assessment of a higher relevancy rating to ENI’s work reflects disparate treatment. Id.; Supp. Comments at 6-7. Based on the record here, again we disagree.

As previously stated, the TET found that ENI had served as “a prime contractor in the [National Mesonet Program] providing the same functions now sought with the present RFP.” AR, Tab 6.c, TET Rep., at 19-20. In comparison, the TET found that Global’s past effort involved “the design, development, operations, and maintenance of [the Comprehensive Large Array-data Stewardship System (CLASS)], a NOAA environmental data archive and distribution system.” Id. at 10. In response to Global’s protest, the TET chair explains the difference between the two efforts as follows:

The CLASS system is an [information technology] system for archiving federal (NOAA) satellite data, unlike the [National Mesonet Program] project[,] which requires a contractor to gather data from multiple non‑federal entities that operate disparate types of observing networks and then provide that data to the Government in real time and in an operational framework.

AR, Tab 16, TET Chair Supp. Statement, ¶ 11. We find the TET chair’s statement to be not only consistent with the contemporaneous record, but to demonstrate a meaningful distinction between the scope of the two firms’ past efforts. Since the different relevancy ratings assigned to the two firms’ past efforts is attributable to this distinction, we find Global’s claim regarding unequal treatment to be without merit.  (Global Science & Technology, Inc. B-413765, B-413765.2: Dec 22, 2016)


As explained above, GiaMed contends, in the alternative, that the past performance references of Global Dynamics’ subcontractor did not support a rating of substantial confidence. Protest at 43. The record reflects that the Army’s assignment of this rating was based upon one reference obtained by the Army from the Past Performance Information Retrieval System (PPIRS) and one reference submitted by Global Dynamics--both references relating to Global Dynamics’ subcontractor.[20] AR, Tab 32, Past Performance Report, at 12‑13; Tab 33, Global Dynamics’ References, at 1-4, 11‑14. GiaMed alleges that the two references failed to meet the solicitation’s criteria for relevancy and/or recency. Protest at 43.

Although we do not provide a detailed explanation here, we find unobjectionable the Army’s determination that the PPIRS reference was “very relevant” and performed with the solicitation’s recency criteria. With respect to the reference submitted by Global Dynamics, although the agency initially determined this project to be relevant, AR, Tab 32, Past Performance Report, at 13, the Army now concedes that this reference “should have been rated as not relevant.” COS at 17. Thus, the Army acknowledges that the awardee’s overall past performance rating of substantial confidence was based, in part, on an erroneous assignment of adjectival ratings.

The Army contends, however, that its assignment of a rating of substantial confidence is justified based upon the PPIRS reference alone. Id. In essence, the Army contends that evaluators would have reached the same conclusion had this error been corrected. The protester contends that the Army’s conclusion is “manifestly unreasonable” and that, without the benefit of the additional reference, the awardee’s single PPIRS report does not justify the same confidence rating as GiaMed’s “robust past performance record.” Protester’s Comments at 34-35.

To the extent that the Army contends that it would have reached the same conclusion with respect to the awardee’s past performance assessment, we do not believe that the protest process is the appropriate mechanism for conducting a thorough and fair redetermination. Computer World Servs. Corp., B‑410513, B‑410513.2, Dec. 31, 2014, 2015 CPD ¶ 21 at 4. In this regard, we give little weight to revised evaluations made during the heat of litigation. See AT&T Govt. Solutions, Inc., B‑413012; B‑413012.2, July 28, 2016, 2016 CPD ¶ 237 at 20; Boeing Sikorsky Aircraft Support, B-277263.2, B‑277263.3, Sept. 29, 1997, 97‑2 CPD ¶ 91 at 15.

Here, the record does not show that evaluators were aware of the error--nor could they have been since it appears that the Army’s new contracting officer recently reached this decision based upon his own assessment of the record.[21] More importantly, despite the Army’s claims that evaluators would have assigned the same substantial confidence rating had the record reflected the correct relevance rating for the reference, there is no representation to this effect in the record. Thus, we conclude that the Army argument represents a revised evaluation made during the heat of litigation. See AT&T Govt. Solutions, Inc., supra, at 14‑21 (rejecting argument that error in past performance evaluation was not prejudicial because evaluators would have assigned the same rating); Systems Made Simple, Inc., B‑412948.2, July 20, 2016, 2016 CPD ¶ 207 at 4 (rejecting post hoc price/technical tradeoff that was not part of the contemporaneous award determination).  (GiaCare and MedTrust JV, LLC B-407966.4: Nov 2, 2016)


As we have held, an agency may properly evaluate the corporate experience of a new business by considering the experience of a predecessor firm, see J.D. Miles & Sons, Inc., B‑251533, Apr. 7, 1993, 93-1 CPD ¶ 300 at 3, or a subcontractor, Cleveland Telecomms. Corp., B-257294, Sept. 19, 1994, 94-2 CPD ¶ 105 at 5, including experience gained by employees while working for the predecessor firm. Oklahoma County Newspapers, Inc., B-270849, B-270849.2, May 6, 1996, 96-1 CPD ¶ 213 at 4. The key consideration is whether the experience evaluated reasonably can be considered predictive of the offeror’s performance under the contemplated contract. Id.

A review of CSS’ proposal shows that the firm submitted three past performance references. The proposal states that each reference should be attributed to CSS for purposes of the past performance evaluation because, “[t]hese contracts were executed by two prime contractors that are CSS’s predecessor companies: Choctaw Contracting Services [(CCS)] and Choctaw Professional Resources Enterprise [(CPRE)]. However, they may be considered as past performance for CSS, in accordance with [FAR] 15.305(a)(2)(iii).”[2] AR, exh. 12, CSS Proposal, at 21. CSS’ proposal also states, “[n]either CSS nor our predecessors, [CCS] or [CPRE], has been acquired by or merged with other companies – nor have they been reorganized, restructured, or otherwise altered.” AR, exh. 12, CSS Proposal, at 48. Finally, the proposal states, “[b]oth companies are separate and distinct entities, and remain so at present. CSS is also a distinct entity, separate from CPRE and CCS.” Id.

For two of the references, the agency evaluated the portion of the contract that the proposal states was performed by CSS as a subcontractor, and did not impute the entire past performance of the contracts to CSS. AR, exh. 4, Proposal Analysis Report (PAR), at 3.3.2.3; exh. 12, CSS Proposal, at 29, 36. Based on this evaluation, the agency found CSS’ performance on both contracts to involve some of the effort and complexities required by the solicitation. AR, exh. 4, PAR, at 3.3.2.3. With respect to the third reference, the agency found that the work, performed entirely by what CSS asserts was a predecessor company, also involved some of the scope and magnitude required by the solicitation. Id. Finally, the evaluators found that CSS’ proposal did not show how the firm would utilize certain key personnel such that they “will have meaningful involvement in contract performance.” Id.

As discussed above, the RFP informed offerors that, in evaluating past performance, the government “may also take into account past performance information regarding predecessor companies and key personnel who have relevant experience.”[3] RFP at 16. The solicitation did not define the term “predecessor companies.” The FAR also does not define the term “predecessor companies” in the context of FAR § 15.305(a)(2)(iii). Outside of the context of FAR part 15, FAR § 9.104-6 discusses affiliates, such as immediate owners and subsidiaries, and predecessors in the context of responsibility determinations. Section 9.104-6(a)(2) of the FAR also references FAR Clause 52.204-20, Predecessor of Offeror (July 2016), which was not included in the solicitation. The clause defines a “predecessor” as “an entity that is replaced by a successor and includes any predecessors of the predecessor.” FAR Clause 52.204-20(a).

Informed by these references, a predecessor company is plainly one that precedes and is replaced by a successor company. Here, the companies that CSS asserts are predecessor companies do not meet the definition. As discussed above, the purported predecessor companies, CCS and CPRE, have not been “acquired by or merged with other companies – nor have they been reorganized, restructured, or otherwise altered.” AR, exh. 12, CSS Proposal, at 48. They remain separate and distinct entities from CSS. Id. As they are not predecessor companies to CSS, their performance cannot be reasonably imputed to CSS as predecessor companies under the terms of the solicitation and FAR § 15.305(a)(2)(iii), as the protester argues.

Given this context, we are provided no basis to question the agency’s evaluation of CSS’ performance as a subcontractor on the two prior contracts. Moreover, while the agency appeared to impute the third reference’s performance to CSS despite the past performance being performed by a company that was not a predecessor to CSS, such evaluation inured to the benefit of CSS.

Finally, turning to CSS’ argument that the agency’s past performance evaluation failed to properly evaluate the performance of certain key personnel who performed on the prior contracts, and were to perform on this contract, our review of the record shows that the allegation is without merit. According to the contracting officer, the agency took into account the performance of these key personnel on the prior contracts, including information and ratings contained in the Contractor Performance Assessment Reporting System (CPARS) reports submitted with CSS’ proposal. Contracting Officer’s Statement at 6, 8. However, according to the contracting officer, CSS’ proposal did not show how the management team would have meaningful involvement in contract performance. Id.

A review of CSS’ technical volume shows that the roles and responsibilities for the key personnel were discussed in the proposal, but not in any great detail. AR, exh. 12, CSS Proposal, at 8-9. The past performance volume of the proposal identifies the same key personnel by name and title, but provides no description of the work each performed on the prior contracts. Id. at 31, 38, 44. Our review of CSS’ proposal does not cause us to question the agency’s determination that CSS’ proposal did not show how the management team would have meaningful involvement in contract performance. We are also given no basis to question the agency’s decision not to credit CSS with the performance of the key personnel under the past performance factor as our review of the proposal shows that there is insufficient information in the past performance volume of CSS’ proposal to determine what role, if any, each key person had in the performance of the prior contracts.  (Choctaw Staffing Solutions B-413434: Oct 24, 2016)


DSI protests the agency’s past performance evaluation and selection decision, arguing that NASA unreasonably credited MECx, Inc., with the incumbent contract largely performed by MECx, LP, which, according to the protester, is a completely different legal entity with a distinct company history. Protest at 2‑4; Comments at 1‑2. DSI asserts that MECx, Inc., must be disqualified from the competition for its allegedly improper reliance on another entity’s past performance, and the protester requests that the contract be cancelled and award made to DSI. Id.

NASA maintains that the firms are the same entity and, in response to the protest, the agency submitted a declaration from the president of MECx, Inc., explaining the company’s history. Agency Mem. of Law (MOL) at 1‑3; see Decl.

Based on our review of the record described below, we find that NASA’s evaluation of MECx, Inc.’s past performance was unobjectionable and consistent with the solicitation and applicable FAR provisions. Although our decision here does not specifically discuss each of DSI’s arguments, we have considered all of the protester’s assertions and find none furnishes a basis for sustaining the protest.

An agency’s evaluation of past performance, including its consideration of the relevance, scope, and significance of an offeror’s performance history, is a matter of discretion which we will not disturb unless the agency’s assessments are unreasonable or inconsistent with the solicitation criteria. SIMMEC Training Solutions, B-406819, Aug. 20, 2012, 2012 CPD ¶ 238 at 4. Where a protester challenges an agency’s past performance evaluation, we will review the evaluation to determine if it was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations, and to ensure that it is adequately documented. Falcon Envtl. Servs., Inc., B-402670, B‑402670.2, July 6, 2010, 2010 CPD ¶ 160 at 7.

As stated above, the RFP provided that an offeror’s past performance would be evaluated in accordance with FAR § 15.305(a)(2), which directs agencies to take into account past performance information regarding predecessor companies, key personnel, and major subcontractors when the information is relevant to an acquisition. RFP at 32; FAR § 15.305(a)(2)(iii). We have previously held that, absent solicitation language to the contrary, an agency properly may consider the relevant experience and past performance of key individuals and predecessor companies; such experience and past performance may be useful in predicting success in future contract performance. See Advant-EDGE Solutions, Inc., B‑400367.2, Nov. 12, 2008, 2008 CPD ¶ 210 at 4. The key consideration is whether the experience evaluated reasonably can be considered predictive of the offeror’s performance under the contemplated contract. See Al Hamra Kuwait Co., B‑288970, Dec. 26, 2001, 2001 CPD ¶ 208 at 4‑5.

Our reading of the record, including the statements by the contracting officer and the president of MECx, Inc., as well as the extensive public record submitted by DSI, leads us to conclude that NASA reasonably considered the past performance of the incumbent contract when it evaluated MECx, Inc.’s proposal. The record confirms that the incumbent contract was transferred to MECx, Inc., by novation agreement executed by NASA and MECx, LP’s corporate officers, and that the contract was modified accordingly to recognize the novation and change in company name. The contracting officer also states that he reviewed MECx, Inc.’s current and past contracts in the governmentwide past performance information retrieval system (PPIRS) database, using the firm’s data universal numbering system (DUNS) number and contractor and government entity (CAGE) code, and that both entities are associated with the same DUNS number and CAGE code. Contracting Officer’s Statement (COS) at 2. The contracting officer further verified the CAGE code in MECx, Inc.’s active registration in the system for award management (SAM). Id. at 2‑3. Moreover, the president of the company states that the majority of the employees that were with the company when it was first formed in 2002, are still employed by him. See Decl. ¶ 13. His explanation of the evolution and chronology of the company’s various corporate structures is also consistent with the publicly available documents provided by the protester. See generally Decl.; Protest, attachs. 4.b.-4.d. This record, in our view, supports NASA’s assertion that MECx, Inc., and MECx, LP, are the same entity, but under successive corporate structures with different names. See MOL at 4; COS at 2.

DSI’s various assertions, by contrast, are unsupported and lack merit. For example, DSI claims that the novation agreement is not legally binding because it was certified by the secretary of the MECx, LP, 4 days after the date on the agreement. See Comments, attach 1, at 8. DSI also disputes some aspects of the company’s reorganization, suggesting that it could only have been accomplished through the sale or merger of the two entities. See id. at 7‑9. DSI also suggests that MECx, Inc., lacks legal authority to use the same DUNS number and CAGE code that were previously assigned to MECx, LP, and that this usage is somehow “problematic.” See id. at 4‑5; Comments at 1; Protest at 2‑3. DSI, however, cites no legal authority to support its largely conclusory assertions. See, e.g., Comments, attach. 1, at 7; see also supra n.4. Significantly, DSI does not dispute the company president’s assertion that the majority of its employees have been employed by him since the company was formed. See generally Comments. We thus agree with NASA that DSI points to nothing in the record that suggests that the MECx entities are not related. MOL at 1.

In any event, DSI’s assertions are misplaced because, as noted above, the key consideration is whether the experience evaluated by NASA can be reasonably considered predictive of MECx, Inc.’s performance under the contemplated contract. See, e.g., Advant-EDGE Sols, Inc., supra (protest of agency’s evaluation of awardee’s experience denied where the awardee is a newly formed company that shares the same contract management staff, processes, experience, and support as its predecessor company); Al Hamra Kuwait Co., supra (denying protester’s argument that awardee is not successor firm because the incumbent still exists as a legal entity, where the awardee acquired the resources used in performing the cited contracts, thus affording additional confidence in the likelihood of successful performance); Consortium HSG Technischer Serv. GmbH & GeBe Gebäude-und Betriebstechnik GmbH Südwest Co., Mgmt. KG, B‑292699.6, June 24, 2004, 2004 CPD ¶ 134 at 3 (denying protester’s challenge to validity of the firm’s sale and novation agreement where there is no suggestion that any of the strengths of the former entity are other than fully intact and available to the awardee).

Based on our review of the evaluation record, we find that NASA reasonably evaluated MECx, Inc.’s past performance record, including its performance of the incumbent contract, which the agency reasonably considered predictive of the awardee’s performance under the new contract. As described above, the RFP stated that the agency would evaluate the relevance and quality of an offeror’s past performance and assess the confidence in the offeror’s ability to perform the PWS based on the offeror’s record. See RFP at 31‑34. In this respect, the PWS requires the contractor to perform a number of safety and environmental management tasks, such as conducting reviews and worksite hazard analysis of all new jobs occurring at NASA’s Armstrong Flight Research Center; identifying pollution prevention opportunities; and ensuring compliance with federal, agency, and state environmental laws and policies. See, e.g., PWS at 2‑4, 15, 19.

Consistent with these requirements, the record shows that MECx, Inc.’s proposal was assessed a significant strength for MECx, LP’s prior performance of the same services for NASA. See AR, Tab 6, SSD, at 119‑20. MECx, Inc., was also evaluated favorably for its performance of a support contract for the Environmental Protection Agency for a long‑term emergency response to an oil spill. Id. The offeror was further assessed a strength for its positive client reviews in its PPIRS reports and questionnaires. See id.; AR, Tab 5, MECx, Inc. Past Performance Evaluation, at 104‑06. The SSA, in her cost/technical tradeoff, recognized the slight technical superiority of DSI’s proposal, but concluded that MECx, Inc.’s proposal provided the best value to NASA, because DSI’s proposal was significantly higher priced than MECx, Inc.’s proposal and based--reasonably, as we discuss above--on MECx, Inc., more relevant experience as the incumbent. AR, Tab 6, SSD, at 120‑23. DSI has not shown this conclusion to be unreasonable.

In sum, we find that NASA’s evaluation of MECx, Inc.’s past performance and the agency’s source selection decision were reasonable. While DSI disagrees with the agency’s judgment and conclusions, the protester’s disagreement provides no basis to sustain its protest. See Trailboss Enters., Inc., B‑297742, Mar. 20, 2006, 2006 CPD ¶ 64 at 5 (agency properly considered past performance record of predecessor company and nothing in record suggests contract novation between the companies was invalid); Consortium HSG Technischer Serv. GmbH & GeBe Gebäude-und Betriebstechnik GmbH Südwest Co., Mgmt. KG, supra, at 3; see also Harbor Servs., Inc., B‑408325, Aug. 23, 2013, 2013 CPD ¶ 214 at 4 (denying protest where record indicated that key personnel and company assets were transferred or otherwise available to awardee providing for continuity of operations between the successive firms).  (Davis Strategic Innovations, Inc. B-413305: Sep 26, 2016)


Turning to protester’s contention that the exclusion of key personnel past performance information from the overall past performance evaluation is inconsistent with the FAR, the argument is without merit. FAR § 15.305(a)(2)(iii) provides that an agency “should” take into account key personnel and major or critical subcontractor past performance information when it is relevant to the acquisition. Our decisions have consistently held that agencies may, but are not required to, consider the past performance of proposed key personnel, which is to say that agencies may conclude that key personnel past performance is not relevant to the acquisition. See Olympus Building Servs., Inc., B-282887, Aug. 31, 1999, 99-2 CPD ¶ 49 at 3-4 and Valor Construction Mgmt., LLC, supra, at 3-4. Additionally, our decisions do not support the conclusion, as LMI suggests, that consideration of key personnel and subcontractor past performance are necessarily linked. In other words, where an agency decides to consider subcontractor past performance information, it need not also consider the past performance information of key personnel. See e.g., JWK International Corp., B-297758.3, Aug. 31, 2006, 2006 CPD ¶ 142 at 7 and Hard Bodies, Inc., B-279543, June 23, 1998 98-1 CPD ¶ 172 at 4 (both concluding that the agency was not required to consider key personnel past performance, although in both cases the solicitation called for an evaluation of the past performance of critical subcontractors).

Here, the agency has concluded that, given the scope and complexity of the project, evaluating the past performance of individual personnel is not a relevant basis for assessing a firm’s past performance. Agency Report, Tab 5, Memorandum to File–Evaluation of Key Personnel, at 1. This conclusion was based on the work to be performed under the contemplated contract, which involves the return or repair of an annual average of approximately 3,000 F-15 parts, repair of an annual average of approximately 800 AGE-related items, and a total estimated valuation of nearly $1 billion. The agency noted that the contract effort could not be effectively executed by a small cadre of experienced key personnel. Agency Memorandum of Law at 5-6. As a result, the agency decided that assessing key personnel past performance would not provide a sufficient basis to assess the relevance of the company’s past performance or to conclude that the offeror is likely to successfully perform the contract. Agency Report, Tab 5, Memorandum to File–Evaluation of Key Personnel, at 1. In light of the magnitude of the contemplated contract, we conclude that the agency has stated a reasonable basis for its decision not to consider the past performance of individual key personnel in its assessment of past performance. Accordingly, there is no basis to find the agency’s actions are inconsistent with the requirements of the FAR.

The protester’s contention that the agency’s decision not to consider key personnel past performance is unreasonable and inconsistent with the agency’s decision to consider critical subcontractor past performance, because a critical subcontractor could be a sole proprietorship, is also without merit. In this case, the agency’s treatment of critical subcontractors is reasonably related to the agency’s assessment of performance risk, which stems from the role a critical subcontractor will play in performance of the contemplated contract. Specifically, the consideration of subcontractor past performance information is limited to subcontractors performing 30% or more of the overall effort, performing the AGE effort, or possessing a Saudi business license that the contractor is relying on to perform the work. See RFP at 97.

We see no basis to conclude that it would be unreasonable for the agency to assess past performance of entities that will be directly performing significant portions of the work, or entities that possess the necessary business license that is a precondition to performance of the work as a whole. We also see no basis to accept the protester’s contention that the agency is required to consider the past performance of key personnel simply because a Saudi business license holder could be a sole proprietorship, and thus, any assessment of the subcontractor would, by definition, also be an assessment of an individual’s past performance. The past performance of a firm holding such a license (regardless of the firm’s size) is necessarily relevant to the agency’s risk evaluation in a way that evaluation of individual key personnel is not; the loss of a Saudi business license would a pose a direct risk to the successful performance of the contract. Accordingly, we have no basis to question the agency’s criteria for evaluating past performance.  (Logistics Management International, Inc. B-412837: Jun 6, 2016)  (pdf)


Dee Monbo protests that the agency unreasonably evaluated its proposal as technically unacceptable because it ignored the qualifications of its proposed specialist. To support this position Dee Monbo points to a different job announcement issued by NOAA for an international affairs specialist on January 16, which lists an acceptable qualification as three full years of progressively higher level graduate education. Protest Comments at 9. Dee Monbo asserts that the qualifications of its proposed specialist, which include a Master’s degree in business administration and three years of progressively higher level graduate education, exceed the qualifications set out in the job notice.

Dee Monbo’s assertion that its proposed specialist meets the education and experience requirements set out in a different job announcement published by NOAA for an international affairs specialist is irrelevant to the agency’s evaluation here. The RFQ under which Dee Monbo competed did not include those qualifications. In this regard, our role in resolving Dee Monbo’s bid protest is to determine whether the agency’s evaluation was reasonable and consistent with the stated evaluation criteria in the issued solicitation and with applicable procurement statutes and regulations. ARBEiT, LLC, B-411049, Apr. 27, 2015, 2015 CPD ¶ 146 at 4.

Here, the solicitation explained that NOAA’s mission was to work closely with scientific organizations in, among other areas, climate change, weather, and oceans. The agency was seeking an international affairs specialist to perform, among other things, analytical and evaluative work related to the development of international policy for a suite of oceanic and/or atmospheric issues, and to participate in developing policy papers. In this regard, the RFQ required that the proposed international affairs specialist be an individual “whose areas of expertise [are] such that they can provide critical assistance to the Office of International Affairs and international affairs assistance to NOAA leadership.” RFQ, Part 2, Statement of Work at ¶ 2.0. Dee Monbo proposed a specialist with a background in accounting and financial management which the agency found, and Dee Monbo does not dispute, is not similar to the work that will be performed under this contract. Under these circumstances we have no basis to conclude that the agency unreasonably evaluated Dee Monbo’s quotation as unacceptable.   (Dee Monbo, CPA B-412820: May 23, 2016)  (pdf)


SEP argues that NASA improperly assigned Arctic Slope a “very high” past performance confidence level based primarily on the performance of an affiliated company, [Deleted]. Protest at 14-15. ([Deleted] and Arctic Slope are subsidiaries of ASRC Federal/AFHC. AR at 31.) According to the protester, as [Deleted] was not listed in Arctic Slope’s proposal as a significant subcontractor, its role cannot be considered meaningful involvement in the contract. SEP Comments at 25-26. The agency responds that consideration of [Deleted] past performance was appropriate since Arctic Slope’s proposal indicated that [Deleted] resources would be used in performing the contract. AR at 27-34.

An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm’s proposal demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 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. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD ¶ 149 at 5. While it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort or where it shares management with the offeror, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror. National City Bank of Indiana, B-287608.3, Aug. 7, 2002, 2002 CPD ¶ 190 at 10.

Here, the record shows that NASA reasonably attributed to Arctic Slope the past performance of its sister company, [Deleted]. As noted above, the RFP permitted offerors to reference the past performance of an affiliated company where the proposal demonstrates that “the resources of the . . . affiliate . . . will affect the performance of the proposed prime contractor.” RFP at 121. Arctic Slope’s proposal listed [Deleted] as a team member, and included numerous references to the role [Deleted] and its employees will play in contract performance. For example, Arctic Slope’s proposal stated that it will use [Deleted] personnel, expertise, lessons learned, and best practices to perform the contract. AR, Tab 6, Arctic Slope’s Past Performance Vol., at 643, 647. In this regard, Arctic Slope’s proposal indicated that the position of [Deleted] would be filled by [Deleted] staff, and that Arctic Slope and [Deleted] use the same [Deleted]. AR, Tab 5, Arctic Slope’s Mission Suitability Volume, at 404. The proposal also showed that certain [Deleted] staff would be transferring to Arctic Slope, including such proposed personnel as the [Deleted], [Deleted], and two other [Deleted]. Id. at 458. In addition, Arctic Slope’s proposal stated that [Deleted] staff would be available for surges and short-term staffing needs. Id. at 406. In light of the variety of [Deleted] resources that Arctic Slope proposed to utilize in contract performance, we have no basis to question the agency’s position that [Deleted] proposed role constituted meaningful involvement in the contract, such that the attribution of [Deleted] past performance to Arctic Slope was consistent with the terms of the solicitation.  (Systems Engineering Partners, LLC B-412329, B-412329.2: Jan 20, 2016)  (pdf)


Turning to the protest grounds, CALIBRE argues that DHA unreasonably evaluated PwC under the corporate experience subfactor of the technical approach evaluation factor because the agency failed to consider whether the experience cited by PwC in its quotation related to PwC Public Sector, the firm that currently holds the BPA and submitted the quotation, or PricewaterhouseCoopers LLP US (PwC US), its corporate parent, which formerly held the BPA. For the reasons discussed below, we agree and sustain the protest.

The RFQ required a vendor to provide evidence of relevant corporate experience and to address the following criteria: (a) understanding of the current MHS Governance construct, (b) experience supporting a similarly sized federal healthcare PIO, and (c) ability to transform an enterprise healthcare system into an HRO. RFP at 5. Under criterion (a), vendors were required to address how they will support the various Governance committees and MHS leaders in accomplishing their work in this MHS Governance model, including creative, thorough, and expert understanding of the objectives and specific tasks in the PWS. Id. Under criterion (b), vendors were required to explain their relevant experience supporting a very large federal healthcare program integration office that is similar in complexity, size, scope, and visibility to the program here. Id. Under criterion (c), vendors were required to address relevant experience related to improving the safety, access, and quality of a very large healthcare system, in the public or private sector, using high reliability principles as described by the Joint Commission. Id. The RFQ defined a very large healthcare system as one that consists of 20 or more distinct and separate healthcare facilities that are linked together the sharing of resources. Id.

An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm’s proposal or quotation demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. IAP World Servs., Inc.; EMCOR Gov’t Servs., B‑407917.2 et al., July 10, 2013, 2013 CPD ¶ 171 at 8‑9; Perini/Jones, Joint Venture, B‑285906, Nov. 1, 2000, 2002 CPD ¶ 68 at 4. The relevant consideration is whether the resources of the parent or affiliated company--e.g., 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. Ecompex, Inc., B‑292865.4 et al., June 18, 2004, 2004 CPD ¶ 149 at 5. While it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort, it is inappropriate to consider an affiliate’s record where there is no evidence that the affiliate will meaningfully participate in performance of the contract. National City Bank of Indiana, B‑287608.3, Aug. 7, 2002, 2002 CPD ¶ 190 at 10.

In the cover letter to its quotation, PwC stated the following:

PwC Public Sector is a subsidiary of PwC US focusing on providing services to government entities. Although a separate legal entity, PwC Public Sector [DELETED], and receives substantial support from its parent. For the purposes of the proposal, we will refer to PwC as inclusive of PwC US and PwC Public Sector.

See AR, Tab 13, PwC Quotation, Vol. I, at 2. Aside from this explanation, PwC’s quotation did not specifically explain or differentiate throughout its quotation as to whether particular resources or experiences related to PwC Public Sector as opposed to PwC US.

As CALIBRE notes, while PwC Public Sector’s quotation states that its focus is “providing services to government entities,” PwC US’s website states that its focus is providing services to private sector clients. See PwC US Website, http://www.pwc.com/us/en/health-industries.html (last visited Nov. 13, 2015). In response to the protest, PwC Public Sector confirms that it provides work to the public sector, including the US federal government, while its corporate parent, PwC US, focuses on the commercial sector. See Decl. of PwC Principal (Sept. 23, 2015), at 1.

The TEB evaluator explained that: “PWC offered [DELETED] examples of their experience supporting large healthcare systems improve their quality, showing clear evidence of what they did, how they did it, and the impact that they had on these systems.” AR, Tab 10, Technical Evaluation Report, at 3. The TEB evaluator concluded that “PWC exceeded the expectations and requirements of the PWS and clearly have the experience necessary to support the MHS’s improvement goals.” Id. The CO’s selection decision concluded that PwC “provided clear evidence of superior, current, and relevant corporate experience.” AR, Tab 9, Award Decision Memorandum, at 3.

CALIBRE argues that the reference to “substantial support” from PwC US in the PwC Public Sector’s quotation did not permit the agency to meaningfully assess whether PwC Public Sector should be credited with the corporate experience listed in the quotation. See AR, Tab 13, PwC Quotation, Vol. I, at 2. We agree. Although the agency and intervenor cite general references to PwC’s relationship to other PwC corporate relatives, we agree that the awardee’s quotation did not specifically explain how PwC Public Sector would work with PwC US during the performance of the contract in a way that demonstrated that the experience of the latter should be credited to the former. See e.g., AR, Tab 14, PwC Quotation, Vol. II, at 12 (“PwC is a part of the global PwC network of firms, and we will use the firm’s full capabilities, as well as the capabilities of our teaming partners, to address DHA’s requirements for flexibility and adaptability”).

More importantly, none of the evaluation documents in the contemporaneous record show that the agency considered any of the issues relating to the distinction between PwC Public Sector and PwC US. See AR, Tab 9, Award Decision Memorandum, at 1-5; Tab 10, Technical Evaluation Report at 1-13; Tab 11, Price Analysis Report, at 1-7. Moreover, DHA’s response does not state that the agency in fact considered these issues; rather the agency merely contends that information in PwC’s quotation suggests that PwC’s quotation could be interpreted to demonstrate reliance. See AR at 33-34.

DHA nonetheless argues that its evaluation crediting PwC Public Sector for the experience of PwC US was reasonable because the former is the successor in interest to the MOBIS FSS contract and BPA initially held by PwC US, as a result of a novation. AR at 32. We disagree, as the novation of a contract interest does not demonstrate that the successor in interest to the contract has the resources or experience of its predecessor, in a manner that merits credit in the evaluation of proposals or quotation. Although our Office has recognized that an agency may consider a successor in interest to merit credit for the experience of its predecessor, those cases expressly found that the successor retained or received the resources and personnel associated with the experience to be credited to the successor. See Harbor Servs., Inc., B-408325, Aug. 23, 2013, 2013 CPD ¶ 214 at 4; TrailbossEnters., Inc., B-297742, Mar. 20, 2006, 2006 CPD ¶ 64 at 4.

In sum, we agree with CALIBRE that the record does not reasonably explain why DHA credited PwC Public Sector with the experience of PwC US. We therefore sustain the protest on this basis.  (Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Systems, Inc. B-411884, B-411884.2, B-411884.3, B-411884.4, B-411884.5, B-411884.6: Nov 16, 2015)  (pdf)


Global also argues that the Air Force misevaluated Bluehawk’s past performance. Global initially alleged that Bluehawk could not meet the standard for a substantial confidence rating because the company had been in existence for only 2 years, had only a single employee, and lacked relevant past performance. Protest at 11‑13. In its comments, Global argues that the Air Force allowed Bluehawk to rely “unduly” on the past performance of its subcontractor to establish sufficient relevant past performance. Comments at 9. Global argues that this was improper because “the RFP d[id] not specifically provide for a subcontractor’s past performance to be considered as highly as that of the principal offeror.” Id. Further, Global argues that Bluehawk’s own past performance, which the Air Force emphasized showed relevant management abilities, should nevertheless have been disregarded because management “is not an extremely rare attribute.” Id. at 10.

The Air Force argues that it reasonably evaluated the performance of Bluehawk, including recognizing that the firm’s past performance was relevant because it involved support for similar agencies, and involved efforts of a similar size and scope, despite the firm’s lack of past performance involving exercise planning. AR at 5. The agency also argues that it properly considered the highly-relevant past performance of Bluehawk’s subcontractor, and that doing so was consistent with the RFP criteria because that subcontractor’s employee was filling a critical position: the full-time exercise planner. Id. at 6-7.

As noted above, our review of a protest challenging the evaluation of past performance recognizes that the evaluation is subjective in nature. Halfaker & Assocs., LLC, supra, at 10. Here, the RFP provided for the agency to consider relevance of past performance references, including similarity in size and scope, not just in the particular type of services. The Air Force evaluators recognized that Bluehawk’s past performance did not include exercise planning, but noted that the firm’s past performance was nevertheless similar in other regards, including size, scope, and the provision of services to other combatant commands, thus making it relevant. See AR, Tab 13, Past Performance Evaluation Rating Team Worksheet, at 2; AR at 5. Based on this record, we view the agency’s judgment as reasonable. We also agree with the Air Force that its consideration of the past performance of Bluehawk’s subcontractor was proper under the terms of the RFP, given the significance of the firm’s role in supplying a critical employee. In short, the Air Force’s judgments in determining that both firms had relevant past performance, and that the past performance record supported a rating of substantial confidence, are explained in the contemporaneous record, and ultimately, reasonable. Accordingly we deny this ground of protest.  (Global Dimensions, LLC B-411288: Jun 30, 2015)  (pdf)


DKW alleges that the agency failed to consider positive information found in a Contractor Performance Assessment Reporting System (CPARS) report related to one of the past performance references submitted for its subcontractor. DKW asserts that the final CPARS report, related to its subcontractors’ performance on a bridge contract for the predecessor services contemplated by this RFP, was completed around the time that the past performance evaluations for this solicitation were being conducted, and the report was completed by the same individual who served as the technical chair for the evaluations under the current RFP. Protester’s Comments at 60-61. Thus, according to the protester, the information was too close at hand for the agency to ignore. Id. at 61.

We have recognized that in certain limited circumstances, an agency has an obligation (as opposed to the discretion) to consider outside information bearing on the offeror’s past performance when it is too close at hand to require offerors to shoulder the inequities that spring from an agency’s failure to obtain and consider the information. See e.g., Int’l Bus. Sys., Inc., B-275554, Mar. 3, 1997, 97-1 CPD ¶ 114 at 5. The agency does not dispute the protester’s allegation that the CPARS report was completed and known to the evaluators. See Supp. Agency Report at 53-57. Instead, DARPA argues that the past performance information in the CPARS report is consistent with a past performance questionnaire that the agency did consider as part of its evaluation. Id. at 55-56. Moreover, the agency argues that it was within its reasonably exercised discretion, under the terms of the RFP, not to consider the CPARS report. Id. at 56.

Under the circumstances here, we conclude that DARPA unreasonably failed to consider the CPARS report as part of its evaluation. First, as DARPA does not refute the protester’s allegations, we can only conclude that it knew of and had access to the CPARS report at the time it conducted DKW’s past performance evaluation. Second, it is clear that the agency considered a past performance questionnaire relevant to the contract in question as part of its evaluation. See AR, exh. 14, DKW’s Past Performance Consensus Evaluation Report, at 3. Third, it appears that DKW could not have included the CPARS report as part of its proposal, as the information was not available at time of proposal submission. Finally, contrary to the agency’s argument, the information considered by the evaluators is not consistent with the evaluation found in the CPARS report.

The past performance questionnaire evaluated by the agency shows that DKW’s subcontractor received three good ratings, seven acceptable ratings and one non-applicable rating for its performance under the relevant contract. AR, exh. 20, Past Performance Questionnaire, at 2-3. Additionally, the narrative for the questionnaire can best be described as critical of the contractor’s performance on the contract. Id. at 4. This information is summarized in the agency’s past performance evaluation. AR, exh. 14, DKW’s Past Performance Evaluation Report, at 3. The CPARS report, which involves the bridge contract for the work preceding this solicitation, shows that the contractor received four very good ratings and two exceptional ratings. Protester’s Comments, Attachment 2. The narrative assessments of the contractor’s performance are also uniformly more positive than the assessment found on the past performance questionnaire evaluated by the agency. See generally id. In other words, the CPARS report is decidedly more positive than the questionnaire considered by the agency as part of its evaluation. Therefore, we do not find the agency’s position, that it considered all relevant information when it considered the past performance questionnaire, to be reasonable. We therefore sustain the protest on this basis.

DKW also alleges that the agency failed to assess the dollar value of past performance references. DARPA responds by arguing, specifically with respect to Agile’s evaluation, that while the record does not document such consideration, it is inconsequential since Agile’s proposal contained this information, and its proposal was fully considered by the past performance evaluation team. Supp. Agency Report at 50. After reviewing the record, we conclude that the record does not adequately document the agency’s consideration of the dollar value of past performance references in its past performance evaluation.[5] Even accepting the agency’s position that it considered all information within Agile’s proposal in its evaluation, agencies are required to adequately document their evaluations, and, where an agency fails to do so, it runs the risk that our Office will be unable to determine whether the agency’s evaluation conclusions are reasonable. IAP World Servs., Inc.; EMCOR Gov’t Servs., B‑407917.2 et al., Jul. 10, 2013, 2013 CPD ¶ 171 at 12. Therefore, we also sustain the protest on this basis.  (DKW Communications, Inc. B-411182, B-411182.2: Jun 9, 2015)  (pdf)


Bethel-Webcor argues that the agency was required to recognize the experience of BSI as relevant and attributable to the protester, based on BSI’s affiliation with Bethel Contracting and language in the proposal that, according to the protester, was sufficient to show that BSI would have meaningful involvement in the performance of the contract. In addition, the protester insists that its corporate structure should have been recognized in the evaluation as that of a mentor-protégé joint venture, and that the agency’s failure to do so caused the agency to evaluate the protester’s experience in a manner inconsistent with the terms of the RFP.

We disagree. We have considered all of the protester’s arguments, although we address only the most significant ones, and find none provides a basis to object to the agency’s evaluation of Bethel-Webcor’s proposal.

In reviewing a protest challenging an agency’s evaluation, our Office will not reevaluate proposals, nor will we substitute our judgment for that of the agency; the evaluation of proposals is a matter within the agency’s discretion. Halfaker & Assocs., LLC, B-407919, B-407919.2, Apr. 10, 2013, 2013 CPD ¶ 98 at 6. The relevant question for our Office, in reviewing this subjective judgment, is whether the evaluation was reasonable and consistent with the solicitation. ASRC Research & Tech. Solutions, LLC, B-406164, B-406164.3, Feb. 14, 2012, 2012 CPD ¶ 72 at 8. An agency properly may consider the experience or past performance of an offeror’s affiliated companies where the firm’s proposal demonstrates that the resources of the affiliated company will affect the performance of the offeror. See FAR § 15.305(a)(2)(iii); Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 68 at 4. While it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort or where it shares management with the offeror, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror. Id.

Here, the RFP specifically advised that for joint ventures that did not have shared experience, the agency would consider projects submitted for each joint venture member. RFP at 12. The RFP warned that offers that failed to include experience for all joint venture members might be rated lower. Id. Again, as stated above, the RFP expressly required that if an offeror planned to use the experience of an affiliate, the affiliate must be named in the submitted organizational chart, and the proposal must “clearly demonstrate that the affiliate . . . will have meaningful involvement in the performance of the contract.” Id. at 11, 12. As explained in further detail below, the protester’s proposal did not comply with any of these requirements.

The record supports the agency’s determination that BSI’s experience and past performance was not attributable to Bethel Contracting. Bethel-Webcor’s proposal identified no meaningful role for BSI in actually performing the requirements here; in this regard, the protester’s proposal stated only that Bethel Contracting and BSI are both subsidiaries of Bethel Native Corporation (BNC). AR, Tab 3, Bethel-Webcor Proposal, Exh. B, at 19. Apart from general statements that BNC operating companies have proven experience in construction projects, and that Bethel Contracting would draw from its own pool of experienced management professionals who had played key roles in past projects for BSI, there is nothing in the record to show that BSI would be meaningfully involved in performing the contract. In short, the record does not show that the resources of BSI--that is, their workforce, management, facilities or other resources--will be provided or relied upon for contract performance here. Accordingly, we find the agency reasonably determined that BSI’s experience and past performance was not relevant and could not be credited to Bethel Contracting.

The protester also argues that the agency did not properly consider Bethel-Webcor’s participation in the SBA mentor-protégé program in not selecting Bethel-Webcor for the second phase. Protest at 2.

This argument is without merit. The evaluation record shows that the agency recognized that the cover letter to Bethel-Webcor’s proposal mentioned “participation” in the SBA Mentor-Protégé program. AR, Tab 6, TET Report, at 51; Tab 7, SSEB Report, at 5. However, the agency also noted that, other than this single reference to the mentor-protégé program--which did not actually state that the joint venture was approved by the SBA under the mentor-protégé program--the proposal did not address Bethel-Webcor’s corporate structure, and did not include a copy of an SBA-approved mentor-protégé agreement. AR, Tab 7, SSEB Report, at 5. Nonetheless, the SSEB decided it would treat Bethel-Webcor as a mentor-protégé joint venture for evaluation under phase 1, and then, if the firm was selected to advance to phase 2, the agency would request a size status determination from the SBA at that time. AR, Tab 14, E-mail of April 9, 2014. Further, the agency gave Bethel-Webcor an acceptable rating for the technical approach factor, the same rating given to all of the firms selected to move on to the second phase. On this record, we find no merit to the protester’s contention that the agency ignored the protester’s stated status as a mentor-protégé firm, and that this was inconsistent with the RFP’s terms.

Nonetheless, Bethel-Webcor further argues that the evaluation was improper because a mentor-protégé joint venture’s experience would be evaluated differently than that of a regular joint venture. The protester provides no legal support for this contention, but asserts that this reflects the view expressed by the agency during Bethel-Webcor’s debriefing. Protest at 2-3; Comments at 2-4. The agency disputes this account, stating that it did not hold the protester’s proposal to a higher standard or otherwise evaluate it differently, based on its failure to provide the mentor-protégé agreement; rather, the unacceptable rating was based on Bethel-Webcor’s failure to demonstrate that both joint venture members had the requisite experience. AR, Memo. of Law at 14.

We need not resolve this dispute. The solicitation here required a mentor-protégé joint venture offeror to provide a copy of its SBA-approved mentor-protégé agreement, and to satisfy other informational requirements regarding the contractual relationships and roles of the entities involved, which, as described above, Bethel-Webcor did not do.  (Bethel-Webcor JV B-410772: Feb 12, 2015)  (pdf)


Bowhead argues that the agency’s past performance evaluation of Bowhead’s proposal was unreasonable because it failed to account for the totality of past performance of all of Bowhead’s corporate affiliates that have performed task orders under the SeaPort-e program since its inception because this information was “too close at hand” for the agency to ignore. The protester also argues that Bowhead should have received a higher past performance rating than Imagine One because, the protester contends, the awardee’s performance record was not equal to that of the entire family of Bowhead companies. Protest at 9. As discussed below, we find the agency’s evaluation under this factor was reasonable.

In reviewing a protest challenging an agency’s past performance evaluation, we will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations. Ostrom Painting & Sandblasting, Inc., B-285244, July 18, 2000, 2000 CPD ¶ 132 at 4. We have recognized that in certain limited circumstances, an agency has an obligation (as opposed to the discretion) to consider “outside information” bearing on the offeror’s past performance when it is “too close at hand” to require offerors to shoulder the inequities that spring from an agency’s failure to obtain and consider the information. See, e.g., International Bus. Sys., Inc., B‑275554, Mar. 3, 1997, 97-1 CPD ¶ 114 at 5. These limited circumstances, however, do not include those where an offeror fails to include information in its proposal. See Great Lakes Towing Co. dba Great Lakes Shipyard, B-408210, June 26, 2013, 2013 CPD ¶ 151 at 8. Where an offeror is in control of information in its proposal--and not reliant on third parties to submit that information--it exercises its own judgment as to the information that the agency should consider. See West Sound Servs. Grp., LLC, B‑406583.4, B-406583.5, July 9, 2014, 2014 CPD ¶ 208 at 12-13. Such circumstances are instead governed by the well established principle that offerors are responsible for submitting a well-written proposal with adequately‑detailed information that allows for a meaningful review by the procuring agency. Hallmark Capital Grp., LLC, B-408661.3 et al., Mar. 31, 2014, 2014 CPD ¶ 115 at 9.

As discussed above, the solicitation required offerors to identify, for themselves and any proposed subcontractors, contracts performed on similar efforts, and within five years of proposal submission. RFP at 95. The solicitation also stated that past performance would be evaluated based on “the relevance of the past performance” and “how well the offeror performed.” Id. at 104.

Bowhead’s initial and final proposals identified six contracts: four from Bowhead, one of which was the incumbent contract, and two from Bowhead subcontractors. AR, Tab 5, Bowhead Proposal, Past Performance, at 187; Tab 11, Bowhead FPR, at 248.

In evaluating Bowhead’s past performance, the evaluators reviewed Contractor Performance Assessment Reporting System (CPARS) reports for all six of the contracts identified in Bowhead’s proposal. AR, Tab 14, Past Performance Evaluation Consensus Report, at 22. Based on the information in the CPARS reports, the agency assessed a substantial confidence past performance rating to Bowhead, stating the following:

Based on the 6 (six) contracts submitted to the Government, two (2) were rated Very Relevant, one (1) was Relevant, and three (3) were Somewhat Relevant. All received positive ratings. All were the same or similar type of work at varying levels of magnitude as the effort covered by the RFP. Bowhead is the current incumbent performing very well in the tasking from this solicitation. Based on the offeror’s recent/relevant performance record, the Government has a high expectation that the Offeror will successfully perform the required effort. Therefore a Substantial Confidence assessment is assigned.

Id. at 25. After discussions, the evaluators concluded that Bowhead’s past performance assessment should remain substantial confidence, stating: “There were no changes to the Offeror’s past performance; therefore, there are no further updates or additional information needed for past performance.” Id.

Bowhead does not challenge the adequacy of the agency’s evaluation of the past performance information submitted in Bowhead’s proposal, or allege that the agency failed to comply with the solicitation’s evaluation criteria. Rather, as discussed above, Bowhead contends that the agency’s evaluation should have also considered the past performance of all of Bowhead’s corporate affiliates that have performed task orders under the SeaPort-e program for the past 13 years because this information was “too close at hand” for the agency to ignore. Specifically, Bowhead argues that “PMA-275 and its evaluators were well aware of not just the performance of BST but the performance of all Bowhead companies,” and that “[t]he sheer number of task order contracts BST and the other Bowhead companies have held with PMA-275 attests to its unique position among the other bidders.” Protest at 9.

We conclude that the agency had no obligation in its past performance evaluation to import and consider favorable past performance information not provided in the protester’s proposal. The record reflects that Bowhead’s proposal provided past performance information only for Bowhead and Bowhead’s subcontractors. AR, Tab 5, Bowhead Proposal, Past Performance, at 187; Tab 11, Bowhead FPR, at 248. Specifically, Bowhead’s proposal stated: “Team Bowhead presents six current contract citations herein: four from Bowhead, one from [Jahn], and one from Wyle.” Id. Bowhead’s proposal did not mention the other UICTS subsidiaries, or provide any indication that any of the other UICTS subsidiaries would be involved in the task order effort or explain how the resources of the subsidiaries would be brought to bear during Bowhead’s performance of the task order. See IAP World Servs., Inc.; EMCOR Gov’t Servs., B-407917.2 et al., July 10, 2013, 2013 CPD ¶ 171 at 9 (explaining that, while it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort or where it shares management with the offeror, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror). To the extent Bowhead believed the past performance of its corporate affiliates was relevant to the past performance evaluation of Bowhead, Bowhead could have included that information in its proposal, but chose not to do so. We will not shift to the agency the responsibility to remedy Bowhead’s failure to include this information in its proposal. Great Lakes Towing Co. dba Great Lakes Shipyard, supra, at 8. We find nothing unreasonable about the agency’s evaluation.  (Bowhead Science and Technology, LLC, B-409871: Aug 26, 2014)  (pdf)


Raytheon argues that, in evaluating EFW’s past performance, the agency conflated various members of the Elbit corporate family and improperly credited EFW with the past performance of the firm’s parent companies, ESA and Elbit Systems, Ltd. Raytheon asserts this error is prejudicial because EFW likely lacks the relevant past performance that other members of its corporate family possess. The agency counters that it did not credit EFW with the past performance of ESA or Elbit Systems, Ltd., but instead with the past performance of two key subcontractors identified in EFW’s past performance proposal--Elbit Systems Land & C4I Ltd. (ESLC) and [DELETED].

For the past performance evaluation, the RFP permitted offerors to submit relevant contracts and subcontracts for acquired companies, divisions, subsidiaries or major subcontractors so long as the information submitted provided a clear understanding of the relevancy of the submitted past performance, the subcontractor or entity’s contribution to the overall proposed effort, and how the subcontractor or entity will contribute to the ability to meet the solicitation’s requirements. RFP at 121. The RFP stated that the agency was interested in past performance information for entities that will be performing the work required by the solicitation. Id.

EFW submitted information concerning five contracts, three performed by ESLC and two by [DELETED], and identified these firms as “key subcontractors.” AR, exh. F4, EFW Volume V – Past Performance, at 1-1 to 1-3. With respect to ESLC, the proposal emphasized the firm’s work as the lead system integrator and core technology developer of [DELETED]. Id. at 1-1. EFW’s proposal explained that the [DELETED] system is built on software and architecture [DELETED]. Id. The Past Performance Evaluation Team (PPET) evaluated EFW’s past performance as “satisfactory”[14] based on an assessment of the two contracts submitted by EFW’s subcontractor [DELETED], but appears to have attributed the three contracts performed by ESLC directly to EFW.[15] See generally AR, exh. G-6, EFW Consensus Past Performance Evaluation. Further, other than the above-mentioned reference to ESLC as a key subcontractor in EFW’s past performance volume, there is no evidence that ESLC will perform on this contract as a subcontractor. We can only conclude that the agency evaluated ESLC’s contracts as EFW’s own past performance.

We therefore consider whether the agency properly attributed ESLC’s past performance to EFW as an affiliated company. An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm’s proposal demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. IAP World Servs, Inc.; EMCOR Gov’t Servs, B-407917.2 et al., July 10, 2013, 2013 CPD ¶ 171 at 8-9; Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 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. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD ¶ 149 at 5. While it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror of the project at issue. National City Bank of Indiana, B-287608.3, Aug. 7, 2002, 2002 CPD ¶ 190 at 10.

The record provides no evidence that ESLC is contributing any resources--whether it be workforce, management, facilities or other resources--to EFW’s proposed effort here. At most, it can be concluded from EFW’s proposal that ESLC’s solution was [DELETED], a fact for which the firm was credited under the technical factor. As a result, the record shows that DHS improperly considered ESLC’s contracts as past performance attributable to EFW.[16] See IAP World Servs, Inc.; EMCOR Gov’t Servs, supra, at 8-9.  (Raytheon Company, B-409651, B-409651.2: Jul 9, 2014)  (pdf)


AP argues that the agency improperly considered the two contracts performed by affiliates of BPS in evaluating the awardee’s proposal under both the technical experience subfactor and the past performance factor. AP maintains that the BPS proposal does not explain how the resources of the affiliates will be brought to bear in BPS’s performance of the current requirement, and that it was therefore improper for the Army to have attributed the performance of these two contracts to BPS during its evaluation. The two contracts at issue are a prime contract performed for [deleted], and a subcontract in connection with work [deleted]. AR, exh. 21, BPS Past Performance Proposal, at 2-9.

AP contends that, in contrast, the Army properly attributed the performance of several predecessor contracts performed by its affiliates to AP during its evaluation of the protester’s proposal, because its proposal detailed how the resources of the affiliates would be brought to bear during AP’s performance of the contract. AP notes that the agency’s evaluators performed a careful attribution analysis in evaluating its proposal, but a similar analysis was not performed in evaluating the BPS proposal. We sustain this aspect of AP’s protest.

An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm’s proposal demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. IAP World Servs., Inc.; EMCOR Gov’t Servs., B-407917.2 et al, July 10, 2013, 2013 CPD ¶ 171 at 8-9; Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 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. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD ¶ 149 at 5. While it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror. National City Bank of Indiana, B-287608.3, Aug. 7, 2002, 2002 CPD ¶ 190 at 10.

In addition to these general requirements that relate to attributing the experience of a parent or affiliate concern to an offeror, the RFP here included detailed instructions concerning this issue in connection with the preparation of the offerors’ proposals under the technical experience factor. The RFP provided as follows:

NOTICE: Examples of experience. Breadth of experience reflects the Offeror’s experience in performing the full range/all of the efforts required. Depth of experience reflects the magnitude, significance, and applicability/relevance of the Offeror's experience in performing each of the efforts required. The Offeror should discuss the technologies/tools used and the approaches taken on related projects. Experience considered may include both Government and commercial contracts in providing the same or similar products and services as described in the PWS of this solicitation. The Government will not consider experience of subordinate or affiliated offices of the Offeror, unless the Offeror clearly details the proposed involvement of the Offeror’s subordinate or affiliated offices in this requirement. The Offeror must indicate whether it was the prime contractor or subcontractor on each project. If the Offeror was the prime contractor, the Offeror shall also describe its primary role/duties in execution of the work (i.e. the primary role/duties of the project which were completed by the prime's staff and those which were subcontracted out).

RFP at 40-41; AR, exh. 11, Amendment No. 3, at 5 (emphasis supplied).

As an initial matter, AP correctly notes that both the contents of its proposal, and the agency’s contemporaneous evaluation materials, show that AP carefully detailed the interrelationship among its parent and affiliated concerns, and the agency specifically examined that explanation to determine whether or not to credit AP with the experience and past performance of its affiliated concerns. In this connection, the record shows that two of AP’s affiliate concerns performed the incumbent contracts for the current requirement.

The record shows that AP specifically explained the structure of its business organization, and detailed how it would bring the resources of its affiliated concerns to bear on performance of the current requirement. AR, exh. 14, AP Technical Proposal at T-2, M-15-17; exh. 16, AP Past Performance Proposal at 1-2. For example, AP specifically detailed how it would transition the entire incumbent workforce from its sister affiliate to AP. AR, exh. 14, AP Technical Proposal at M-15-17. The record shows that both the technical evaluation team, as well as its past performance team, independently examined the AP proposal and reached specific conclusions about the interrelationship among AP and its affiliated and parent concerns, finding that it would be appropriate to credit AP with the experience and past performance of its affiliates under the circumstances. AR, exh. 15, AP Final Technical Evaluation Report, at 4; exh. 17, AP Final Past Performance Evaluation Report, at 4-5.

In contrast to the AP proposal and evaluation materials relating thereto, there is no information in the BPS proposal that meets the requirements of the RFP quoted above relating to BPS’s obligation clearly to detail the proposed involvement of [deleted] or [deleted] in the performance of the contract. There also is no explanation in the contemporaneous evaluation record describing the basis for the agency’s attribution of the two prior contracts to BPS under either the technical experience subfactor or the past performance factor, notwithstanding this threshold omission from the BPS proposal, and the clear requirement of the RFP.

Notwithstanding the absence of information in the BPS proposal or the contemporaneous evaluation record, both the agency and intervenor have directed our Office to various portions of the BPS proposal in an effort to demonstrate that, in fact, the resources of BPS’s affiliates will be brought to bear in connection with its performance of the contract. We discuss their principal contentions below.

Both the agency and the intervenor first cite to the cover pages for each volume of the BPS proposal. These cover pages identify the offeror as follows: “Bowhead Professional Solutions, LLC, a subsidiary of Ukpeagvil Inupiat Corporation Technical Services, LLC, An Ukpeagvik Inupiat Corporation Company.” See e.g., AR, exh. 19, BPS Technical Proposal, cover page. These cover pages also identify the two authorized negotiators for BPS. Id. One of these individuals is identified as “President, Engineering & IT Group Bowhead Professional Solutions, LLC.” The second individual is identified as “Director of Contracts UIC Technical Services, LLC.” None of this information explains the interrelationship between BPS and its affiliated concerns, [deleted] and [deleted], and none of this information demonstrates that the resources of [deleted] or [deleted] will be brought to bear in connection with BPS’s performance of the contract. At most, this information shows that BPS is a subsidiary of Ukpeagvik Inupiat Corporation Technical Services, LLC, and that one of the concern’s authorized negotiators is an employee of the parent company.

Next the agency and the intervenor direct our attention to a brief narrative portion of the BPS technical proposal that provides as follows:

Bowhead is a Small Business Administration-certified 8(a) company and an Alaska Native Corporation (ANC). We are a subsidiary of the Ukpeagvik Inupiat Corporation Technical Services, LLC (UICTS), a holding company directly under the auspices of Ukpeagvik Inupiat Corporation (UIC) and its native Alaskan shareholders. As such, we have full reach-back capability to our sister companies as well as our parent company. Based in Alexandria, [Virginia], UICTS and its subsidiary companies (which include Bowhead) have more than [deleted] employees and combined annual revenues of $[deleted]. Bowhead has been delivering service and product solutions to DoD, numerous Federal agencies, and commercial customers for more than 13 years.

AR, exh. 19, BPS Technical Proposal, at T-2. This narrative portion of the BPS proposal goes on to note various achievements of “Bowhead,” and specifically notes “Bowhead’s” history of providing information technology support services at Fort Eustis and Fort Monroe network enterprise centers. Id. According to the agency and the intervenor, this narrative demonstrates that BPS is part of a larger corporate group, and that the firm intended to leverage the resources of this larger corporate group in performing the contract.

We disagree. Nothing in this narrative describes clearly the interrelationship among BPS and its parent and affiliated concerns. More important, it is not clear from this narrative (or the pleadings) that there is a relationship between BPS, [deleted] and [deleted] as part of this larger corporate group. In addition, the passing reference to “full reach-back capabilities” is inadequate, without more, to demonstrate that the resources of [deleted] or [deleted] will be brought to bear in BPS’s performance of this contract. IAP World Servs., Inc.; EMCOR Gov’t Servs., supra, at 9.

Finally, both the agency and the intervenor have presented a long list of BPS proposal references that they maintain demonstrates that the resources of BMSI and BITS will be brought to bear during BPS’s contract performance. These extensive references, however, make no mention of either BMSI or BITS, or explain how the resources of those two concerns will be brought to bear in BPS’s performance of the contract. Instead, these references use either the phrase “Team Bowhead” or the term “Bowhead” in describing how contract performance will be accomplished. Significantly, the terms “Team Bowhead” and “Bowhead” are defined early in the BPS proposal as follows:

MISSION FIRST is Team Bowhead’s service delivery philosophy. It is the driving force behind all that we will say and do in supporting our customers. It translates into customer satisfaction and a trusted partnership. Bowhead Professional Solutions LLC (Bowhead) and our partners—[deleted]--have designed a mission-first solution to support the United States Army Signal Network Enterprise Center--Redstone (NEC-R) and the Army Logistics Transformation (ALT II). As Team Bowhead, we offer innovative solutions to improve service response times, significantly enhance service delivery, and reduce the Total Cost of Ownership (TCO).

AR, exh. 19 BPS Technical Proposal, at T-1 (emphasis supplied). Thus, by the proposal’s own terms “Team Bowhead” is comprised of BPS and its proposed subcontractors, and “Bowhead” is BPS. Simply stated, neither of those entities is comprised of or includes any of the resources of [deleted] or [deleted], and it was improper for the agency to credit BPS with either the experience or past performance of those two concerns. In addition, as noted above, the BPS proposal itself attempted to ascribe the performance of [deleted] and [deleted] prior contracts to “Bowhead.” This was inaccurate in light of the fact that BPS (a.k.a “Bowhead”) did not perform those contracts.

In light of the foregoing discussion, we conclude that the agency improperly ascribed the experience and past performance of [deleted] and [deleted] to BPS. The agency’s evaluation conclusions concerning BPS under the technical experience subfactor and past performance factor therefore were unreasonable and, accordingly, we sustain this aspect of AP’s protest.  (Alutiiq Pacific, LLC, B-409584, B-409584.2: Jun 18, 2014)  (pdf)


The SSB assigned a weakness to DEI under the professional qualifications and capacity to accomplish the work evaluation factors, based on the fact that one of DEI’s proposed construction managers did not possess a 4-year engineering or construction management degree. DEI argues that these weaknesses were based on unstated evaluation criteria.

In evaluating proposals, an agency properly may take into account specific, albeit not expressly identified, matters that are logically encompassed by, or related to, the stated evaluation criteria. Independence Constr., Inc., B-292052, May 19, 2003, 2003 CPD ¶ 105 at 4. Here, the record shows that the agency did not apply undisclosed criteria in its evaluation under either factor, and reasonably assessed DEI’s proposal a weakness under the professional qualifications factor, but did not act reasonably under the capacity factor.

Under the professional qualifications factor, the synopsis indicated that the agency would consider the “[p]rofessional qualifications of the key personnel, including professional registration and certifications in engineering, and construction management available to work on this contract,” and specifically listed nine professional disciplines, including project management, various engineering areas, and construction management. Synopsis ¶ 3.b. Thus, firms were on notice from the synopsis that the agency would evaluate whether their key personnel were qualified, that is, had received professional training and independent qualification in the fields of engineering and construction management. In these circumstances, we view consideration of whether a key person has a 4-year degree in engineering or construction management to be encompassed within the professional qualifications evaluation factor.

Further, as explained by the agency, for civil construction projects performed on behalf of the USACE, a construction manager is responsible for the management of engineering, technical, and administrative matters, including duties such as ensuring that methods and related engineering practices and techniques are in accordance with established USACE requirements and policies, and ensuring the compatibility of the design with the site, materials, methods, and techniques. SSB Chair Declaration (Decl.) 1, ¶ 6. According to the agency, to adequately perform such duties, a construction manager should have a degree in engineering or construction management, the same education and professional qualifications possessed by USACE construction managers. Id. ¶ 7; Supplemental Agency Report (SAR) at 4.

DEI has not shown to be unreasonable the agency’s position as to the importance of a 4-year engineering or construction management degree to ensuring adequate performance of a construction manager’s duties. Here, the submitted resume for one of DEI’s construction managers indicated that he has only an associate degree in civil engineering, not a 4-year degree, and his entry in DEI’s key personnel listing contained a blank under the heading of professional registration. DEI Qualifications Statement § H, Exh. 4. Thus, we find that DEI’s proposal of a construction manager without the requisite professional education was reasonably evaluated under the professional qualifications factor as a weakness.  (Design Engineering, Inc., B-408336.3: May 6, 2014)  (pdf)


Ma-Chis challenges the evaluation of its past performance, complaining that the Corps unreasonably did not consider the projects performed by Absher Construction (the parent company of one of the Ma-Chis joint venturers). Ma-Chis contends that the RFP’s restriction to the consideration of past performance projects performed by only the identified prime contractor does not apply to projects submitted by parent companies. Ma-Chis also argues that the RFP is ambiguous with respect to consideration of affiliated parent companies. We disagree.

It is well-settled that an agency may consider the experience or past performance of an offeror’s parent or affiliated company under certain circumstances. See, e.g., Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 68 at 4. However, our Office has consistently recognized that reliance on a third party’s experience, even if otherwise permissible, is contingent upon the absence of any solicitation provision precluding such consideration. See, e.g., Hot Shot Express, Inc., B-290482, Aug. 2, 2002, 2002 CPD ¶ 139 at 3; Physician Corp. of Am., B‑270698 et al., Apr. 10, 1996, 96-1 CPD ¶ 198 at 13; Tutor-Saliba Corp, Perini Corp., Buckley & Co., Inc. and O & G Indus. Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD ¶ 223 at 5; Fluor Daniel, Inc., B‑262051, B-262051.2, Nov. 21, 1995, 95‑2 CPD ¶ 241 at 12.

Here, the solicitation specifically informed offerors that “[p]rojects performed by other contractors than the offeror, such as teaming partners or subcontractors, will not be evaluated as prime contractor experience or prime contractor past performance, unless those other contractors are part of a joint venture offeror as demonstrated by a signed joint venture agreement.” RFP amend. 1, at 11. We do not agree with Ma-Chis that the solicitation only prohibited consideration of the past performance of “teaming partners or subcontractors.” Teaming partners and subcontractors were only identified as examples of “other companies,” whose past performance could not be considered in lieu of the prime contractor’s. There is nothing in the solicitation indicating that the RFP’s reference to “other contractors” would not include parent companies. Rather, the RFP unambiguously informed offerors that the agency would consider the past performance and experience of the identified prime contractor and, where the prime contractor was a joint venture, the past performance and experience of the joint venturers where a signed joint venture agreement was provided.

The protester’s proposal identified the Ma-Chis joint venture as the prime contractor, see AR, Tab 18, Ma-Chis Standard Form 1442, at 2, and the protester does not contend that Absher Construction was a member of the joint venture. Because Absher Construction is not an offeror, or a member of the joint venture that submitted the offer, the agency properly did not consider the past performance and experience attributable to that firm. See Doyon-American Mech., JV; NAJV, LLC, B-310003, B-310003.2, Nov. 15, 2007, 2008 CPD ¶ 50 (an agency may not rely upon the past performance of the awardee’s parent and affiliated companies, where the solicitation limited consideration of past performance to that of the prime contractor and primary teaming partners).  (Ma-Chis Kawv V, LLC, B-409344: Mar 20, 2014)  (pdf)


Next, Hughes challenges the agency’s evaluation of G&E’s past performance. The protester argues that the agency unreasonably credited G&E with the experience and past performance of its subcontractor, C2G.

The evaluation of an offeror’s past performance is within the discretion of the contracting agency, and we will not substitute our judgment for reasonably based past performance ratings. MFM Lamey Group, LLC, B-402377, Mar. 25, 2010, 2010 CPD ¶ 81 at 10. Where a solicitation calls for the evaluation of past performance, we will examine the record to ensure that the evaluation was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. Divakar Techs., Inc., B-402026, Dec. 2, 2009, 2009 CPD ¶ 247 at 5.

As discussed above, G&E submitted ten past performance contract efforts, nine of which were found to be not relevant. AR, Tab 6, Past Performance Evaluation Report, at 9-15. The agency also found, however, that G&E’s proposed subcontractor, C2G, had extensive experience with transient aircraft/alert services. Id. at 10-11. We find no basis to object to the agency’s evaluation in this regard. The FAR states that agencies should take into account past performance information regarding predecessor companies, key personnel, and major subcontractors, when such information is relevant to an acquisition. FAR § 15.305(a)(2)(iii). Based on this provision, we have found that the past performance of a proposed subcontractor properly may be considered in evaluating an offerors’ past performance, where it is not expressly prohibited by the RFP. MCR Fed., LLC., B-401954.2, Aug. 17, 2010, 2010 CPD ¶ 196 at 9. Here, the RFP expressly provided that the agency would consider the past performance of proposed subcontractors. RFP at 110. In fact, the RFP provided that the past performance for subcontractors who will perform major or critical aspects of the requirement “will be considered as highly as past performance . . . for the principal offeror.” Id. at 111.

Given the fact that the RFP expressly anticipated consideration of a subcontractor’s relevant experience in evaluating the awardee’s ability to perform the RFP’s requirements, we find that it was reasonable for the agency to favorably consider C2G’s experience in evaluating the awardee’s ability to perform the RFP’s requirements.  (Hughes Group Solutions, B-408781.2: Mar 5, 2014)  (pdf)


Iyabak contends that the RFP’s restriction of experience and past performance to the offeror itself is unduly restrictive of competition.[3] Protest at 5. The protester argues that the solicitation should allow consideration of an affiliate’s experience and past performance where there are firm commitments for affiliates to be meaningfully involved in contract performance. Id.

The Competition in Contracting Act of 1984 requires that solicitations generally permit full and open competition and contain restrictive provisions only to the extent necessary to satisfy the needs of the agency. 10 U.S.C. § 2305(a)(1)(B)(ii) (2006). Where a protester challenges a solicitation provision as unduly restrictive of competition, the procuring agency must establish that the provision is reasonably necessary to meet the agency’s needs. See Total Health Res., B-403209, Oct. 4, 2010, 2010 CPD ¶ 226 at 3 (solicitation requirement for specific experience on the part of the prime contractor was unduly restrictive of competition where the agency did not show that its needs could not be satisfied by a subcontractor with relevant experience). We examine the adequacy of the agency’s justification for a restrictive solicitation provision to ensure that it is rational and can withstand logical scrutiny. SMARTnet, Inc., B-400651.2, Jan. 27, 2009, 2009 CPD ¶ 34 at 7. The determination of a contracting agency’s needs, including the selection of evaluation criteria, is primarily within the agency’s discretion and we will not object to the use of particular evaluation criteria so long as they reasonably relate to the agency’s needs in choosing a contractor that will best serve the government’s interests. SML Innovations, B-402667.2, Oct. 28, 2010, 2010 CPD ¶ 254 at 2.

Here, the Corps acknowledges that the agency’s solicitations generally have “permitted the consideration of [the] experience and past performance of an affiliate if the offeror’s proposal clearly demonstrated that the resources (workforce, management, facilities or other resources) of that affiliate will affect the performance of the . . . contract.” Contracting Officer’s Statement at 5. The agency contends, however, that such consideration raised a number of concerns, namely:

The proposals received from offerors would include general statements about the availability of affiliate resources to move between affiliate companies but did not demonstrate any meaningful involvement of the affiliate or include any commitment that the affiliate would perform any part of the contract or provide personnel or resources. In some cases, the affiliate companies relied upon for experience or past performance no longer even exist and therefore could not contribute to contract performance.

Id. The Corps states that, given these concerns, it is reasonable to restrict consideration of experience and past performance to the company with which the government will have contractual privity. See Legal Memorandum at 41, citing Valor Constr. Mgmt., LLC, B-405365, Oct. 24, 2011, 2011 CPD ¶ 226.

In Valor Constr. Mgmt, LLC, we found that the agency had established a reasonable basis for a solicitation provision that restricted consideration of experience and past performance to that of the offeror itself, and that provided for no consideration of the experience and past performance of subcontractors and key personnel. Specifically, we found reasonable the agency’s concern that, given the size, price, and complexity of the procurement, the restriction was necessary to lessen the agency’s risk of inadequate performance by considering only the experience and past performance of the firm responsible for performance of the contract. Valor Constr. Mgmt, LLC, supra, at 4.

Here, the Corps’ explanation for the RFP’s experience and past performance restriction is that the agency encountered problems in the past when it considered the experience and past performance of affiliates. As recounted by the contracting officer, these problems concerned the acceptance by the agency of “general statements about availability of affiliate resources,” where the offerors “did not demonstrate any meaningful involvement by the affiliate or include any commitment that the affiliate would perform any part of the contract.” See Contracting Officer’s Statement at 5. This explanation, however, does not address the protester’s position that it is unreasonable for the agency to refuse to consider the experience and past performance of affiliates where there are firm commitments for affiliates to participate meaningfully in contract performance.

After receiving a report from the agency that did not squarely address the issues raised here, we convened a telephone hearing to elicit further information from the agency’s contracting officer to explain why the solicitation’s restriction on consideration of an affiliate’s experience and past performance was reasonably necessary to meet the agency’s needs. The contracting officer did not provide any further support for the restriction, other than to note that in the past offerors had not explained their affiliates’ proposed involvement with intended performance of contracts. In particular, despite explicit inquiry, the contracting officer was unable to address why the agency could not consider an affiliate’s experience and past performance in cases where the offeror demonstrates a firm commitment that the affiliate will participate meaningfully in the performance of the contract. At the conclusion of the hearing we provided the parties with an opportunity to file post-hearing comments. The Corps did not provide post-hearing comments, or otherwise provide any further information.

In sum, we find that the RFP’s past performance and experience requirements are unduly restrictive of competition, given the agency’s failure to explain why its needs could not be satisfied by a less restrictive method of evaluating offerors’ past performance and experience. That is, the Corps has not explained or shown why the agency’s concerns with considering an affiliate’s past performance and experience under the RFP are not satisfied by making such consideration contingent upon a firm commitment that the affiliate would participate meaningfully in the performance of the contract. In fact, it is not appropriate for an agency to credit an offeror with the experience and past performance of separate affiliates where the affiliates will not be meaningfully involved in contract performance. See IAP World Servs., Inc.; EMCOR Gov’t Servs., B-407917.2 et al., July 10, 2013, 2013 CPD ¶ 171 at 9.  (Iyabak Construction, LLC, B-409196: Feb 6, 2014)  (pdf)


TISTA challenges the agency’s evaluation of quotations under the technical approach/management plan and past performance factors. (Sentence deleted.)

In reviewing an agency’s evaluation in an FSS competitive acquisition, we will not reevaluate quotations, but will examine the record to ensure that the agency’s evaluation was reasonable and consistent with the terms of the solicitation. Beckman Coulter, Inc., B-405452, Nov. 4, 2011, 2011 CPD ¶ 231 at 5. An offeror’s mere disagreement with the agency’s evaluation is not sufficient to render the evaluation unreasonable. Teknion LLC, B-407989, B-407989.2, May 8, 2013, 2013 CPD ¶ 209 at 3. We have considered all of TISTA’s arguments and find that none provides a basis for questioning the agency’s evaluation. We address TISTA’s most significant arguments below.

The protester contends that ADDX should have received lower ratings than TISTA under both the technical approach/management plan and past performance factors. This argument is based substantially on the findings of a VA Inspector General (IG) investigation with regard to allegations of wasteful expenditures related to two human resource conferences held in Orlando, Florida, in July and August 2011. The IG Report found, inter alia, that VA’s HR&A senior leadership failed to provide proper oversight in the planning and execution of the two conferences which led to mismanagement and wasteful spending, and that HR&A employees improperly accepted gifts. VA IG Report No. 12-02525-291, “Administrative Investigation of the FY 2011 Human Resources Conferences in Orlando, Florida,” September 30, 2012 (“IG Report”), Executive Summary.

TISTA associates the VA’s mismanagement found in the IG Report with the performance of the three former employees of Pathfinder, which has provided program management support services to the VA since 2005. Since these employees now work for ADDX’s team member, XOC, TISTA contends that their involvement in the VA’s mismanagement should have resulted in lower evaluation ratings for ADDX under the technical approach/management plan and past performance factors.

We find no basis to conclude that the evaluation of ADDX’s quotation was unreasonable here. Nothing in the IG report suggests that the financial abuses and wasteful expenditures were due to poor performance by Pathfinder or its former employees. Neither Pathfinder nor its employees are even mentioned in the report; the several individuals who are named in the report are VA officials, not contractors. Furthermore, the protester has not shown that Pathfinder was involved in any decision-making regarding the unnecessary and unsupported expenditures that are the core of the abuses identified in the IG report. Under these circumstances, with no evidence linking the former Pathfinder employees to the mismanagement identified in the IG Report, and no indication that the responsibilities of Pathfinder would have put its employees in a relevant decision-making position at VA, we are not persuaded that the evaluators were unreasonable in not considering the IG Report as adverse information in ADDX’s technical or past performance evaluation.

TISTA asserts that VA did not treat ADDX and TISTA equally because it credited ADDX for its subcontractor’s minimal past performance while discounting the relevant performance of TISTA’s subcontractors. Specifically, TISTA complains that the agency ignored relevant experience of its subcontractor, Definitive Logic, under a VA contract.

The record shows that the contracting officer did consider the past performance of Definitive Logic, but found that the firm’s VA contract was not relevant because the total value of Definitive Logic’s effort ([deleted]) would not likely impact the performance risk of the effort here, which is estimated at $43 million. Supp. Contracting Officer’s Statement, May 22, 2013, at 3; see also AR 3.2, TISTA Past Performance Evaluation, at 9-10. Since the RFQ contemplated that relevance would be determined based on experience providing services “similar in size, scope, and complexity” to the requirements set forth in the RFQ, we cannot find unreasonable the agency’s determination that Definitive Logic’s work was too small in size to be relevant, especially since TISTA admits that the work was only for one specific task (Sharepoint site development) of the several to be performed under the RFQ here. In any case, even if the agency should have considered the firm’s performance, the protester has not shown that it would have had any appreciable impact on the overall past performance evaluation given the small size and limited scope of the work of Definitive Logic’s effort. Accordingly, we find no basis to sustain the protest on this ground.  (TISTA Science and Technology Corporation, Inc., B-408175.4, Dec 30, 2013)  (pdf)


Savvee contends that WHS unreasonably found that its proposed program manager failed to meet the minimum PWS requirements for experience, and therefore unreasonably rated its quotation as marginal for the technical approach factor. For the reasons discussed below, we find no basis to sustain the protest.

Clearly stated technical requirements are considered material to the needs of the government, and a quotation that fails to conform to material solicitation requirements is technically unacceptable and cannot form the basis for award. Carahsoft Tech. Corp., B-401169, B-401169.2, June 29, 2009, 2009 CPD ¶ 134 at 5. Where a protester challenges an agency’s evaluation and rejection of its quotation as technically unacceptable, our review is limited to considering whether the evaluation was reasonable and in accordance with the terms of the RFQ and applicable regulations and statutes. See Outdoor Venture Corp., B-288894.2, Dec. 19, 2001, 2002 CPD ¶ 13 at 3. A protester’s mere disagreement with the evaluation does not show that it lacked a reasonable basis. 1-A Constr. & Fire, LLP, B-404128, Jan. 7, 2011, 2011 CPD ¶ 15 at 3.

As discussed above, WHS found Savvee’s quotation unacceptable because its proposed program manager did not demonstrate the required 5 years of executive-level management experience leading multi-disciplined teams of research analysts and various operational departments. See AR, Tab 2, PWS at 9. First, the agency found that none of the titles of the positions listed in Savvee’s proposed program manager’s resume reflected experience as a program manager or other executive-level experience: (1) financial manager/senior task manager (2008-present); (2) business systems analyst (2006-2008); and (3) software implementation specialist-defense travel system (2005-2006). AR, Tab 3, Savvee Quotation, Appendix A, Program Manager Resume, at 1-2; Contracting Officer’s Statement at 7. We agree that none of the titles for these positions clearly show that this individual served as a program manager, or a manager at an executive level. In fact, the protester concedes that the proposed individual did not serve as the program manager for the current contract, and the protester does not contend that any of the other positions involved work in that role. See Protester’s Comments (Sept. 9, 2013) at 4.

Next, the agency found that the descriptions of the work performed by Savvee’s proposed program manager did not clearly reflect executive level management experience leading multi-disciplined teams of research analysts and various operational departments, as required by the RFQ. AR, Tab 4, TEB Report, at 19; Tab 5, Best Value Decision Memorandum, at 15; Contracting Officer’s Statement at 7. Instead, the proposed program manager’s resume states that the individual was employed by a subcontractor for the incumbent contractor for the services, and “[m]anages a team of diverse professionals performing financial, travel, security, and administrative support.” AR, Tab 3, Savvee Quotation, Appendix A, Program Manager Resume, at 1. The resume also stated that from 2006 to 2008, the individual performed duties including “[s]erv[ing] as a Project Team Lead for the DoD Agencies & Joint Commands Operations,” and from 2005 to 2006 performed duties including leading an “onsite team conducting business process meetings to layout the process flow for travel documents and make recommendations to streamline the current processes at sites.” Id. at 2. The agency concluded that none of the descriptions of the three positions involved work at the executive level, because the positions did not involve leading or managing multiple multi-disciplined teams of analysts or operational departments. AR at 8; Contracting Officer’s Statement at 7; see AR, Tab 4, TEB Report at 19; Tab 5, Best Value Decision Memorandum, at 15. The agency also found that while the proposed positions involved management of various tasks and assignments, this work did not constitute executive-level management. Id.

While Savvee does not dispute that its proposed program manager did not perform work leading or managing multiple teams or departments at the same time, Savvee nonetheless argues that the evaluation was unreasonable because the resume shows that the individual generally possesses the relevant skills necessary to perform the contract requirements. Further, the protester argues that its proposed program manager met the requirement for executive-level experience because the individual led a team under the current contract, and teams under other listed contracts. See Protester’s Comments at 3.

The protester also argues that the solicitation did not clearly require that the proposed program manager have experience leading multiple teams at the same time. We disagree, and think that the agency’s interpretation of the RFQ was reasonable.  (Savvee Consulting, Inc. B-408623, B-408623.2, Nov 8, 2013)  (pdf)


MedPro Corporate Experience Evaluation

Harbor challenges the agency’s evaluation of MedPro’s proposal under the corporate project experience subfactor of the construction management factor, asserting that MedPro has “zero corporate experience.” Protest at 2-3. Harbor asserts that the agency thus should have assigned a weakness to MedPro’s proposal under this subfactor instead of the outstanding technical rating that was given. Id.

As noted by the agency, however, MedPro’s proposal indicated that MedPro was in the process of “transitioning from International Public Works, LLC” (IPW), and that both MedPro and IPW were owned by a professional engineer who was proposed as the overall project manager for this project. MedPro Proposal at 3, 16. In this regard, the agency indicates that, in evaluating MedPro’s corporate experience, it considered such information as the fact that MedPro’s overall project manager for the current project had personally overseen VA project activities for IPW, and that other key personnel from IPW who had worked on numerous VA medical center projects (including the proposed construction project manager and site superintendent) were proposed for this current project. In addition, other proposed key personnel (including the architect design project manager, architect field representative, and the engineer field representative) were from an engineering and design subcontractor (O’Brien & Gere) and had worked on construction projects at the Ralph N. Johnson and other VA medical centers. Supplemental Legal Memorandum at 2-3; Declaration of Contracting Officer; MedPro Proposal at 16-25, 36.

As for IPW, MedPro’s predecessor, the agency noted four separate projects at the Ralph H. Johnson VAMC: two projects to renovate inpatient privacy suites, one to create a sterile clean core to support a surgical suite, and another to renovate and expand a surgical suite. Supplemental Legal Memorandum at 23; Declaration of Contracting Officer; Supplemental Contracting Officer’s Statement; MedPro Proposal at 10-14. Further, the agency noted favorable (including “outstanding”) performance on these projects and others as well. AR at 13; SSEB Report at 14. In addition to the above proposed experienced key personnel, MedPro proposed to use local subcontractors who have worked at and are familiar with the Ralph H. Johnson VAMC. MedPro Proposal at 34. In sum, the record indicates that in finding MedPro responsible, the agency relied upon extensive information concerning the resources MedPro proposed to use, including (1) skilled experienced personnel, subcontractors, and financial resources, (2) the performance record of the predecessor company IPW, and (3) proposed key personnel. See FAR § 9.104-1.

Harbor argues that any consideration of IPW’s experience in evaluating MedPro’s corporate experience was improper. Protest at 2. We disagree. We have previously held that, absent solicitation language to the contrary, an agency properly may consider the relevant experience and past performance of key individuals and predecessor companies; such experience and past performance may be useful in predicting success in future contract performance. See Advant-EDGE Solutions, Inc., B-400367.2, Nov. 12, 2008, 2008 CPD ¶ 210 at 4 (agency may properly consider experience of predecessor firm or corporation’s principal officers under experience evaluation factor); Family Entertainment Servs., Inc., B-298047.3, Sept. 20, 2006, 2007 CPD ¶ 59 at 8 (agency may properly consider experience and past performance of key individuals and predecessor companies in evaluating past performance); Firma Hermann Leis, B-296956, B-295956.2, May 19, 2005, 2005 CPD ¶ 102 at 3 (agency may properly consider experience of the corporation’s principal officers, employees and predecessor company in determining compliance with definitive responsibility criterion).

Here, the record indicates that key personnel and assets of IPW, the predecessor firm, are now transferred to or otherwise available to MedPro, providing for continuity of operations between the two firms and making IPW’s experience relevant to predicting MedPro’s successful performance of the contract. See Al Hamra Kuwait Co., B-288970, Dec. 26, 2001, 2001 CPD ¶ 208 at 4-5. These included, for example, the professional engineer who owns both firms and was proposed as the overall project manager for this project; the proposed construction project manager and site superintendent; and a multiple award task order contract with VA which was transferred from IPW to MedPro by a novation agreement executed with VA shortly before the award to MedPro. CO Statement at 1-3. Thus, consideration of IPW’s experience was not improper. In these circumstances, we conclude that Harbor has shown no basis to question evaluation of MedPro’s corporate experience.  (Harbor Services, Inc., B-408325, Aug 23, 2013)  (pdf)


Corporate Experience and Past Performance

IAP and EMCOR argue that the Navy unreasonably credited J&A with the corporate experience and past performance of two separate Alutiiq Global affiliates, even though J&A’s proposal does not indicate that the two corporate affiliates--Alutiiq-Mele and Alutiiq Management Services--will be substantially involved in contract performance. See IAP Supp. Protest (B-407917.4) at 4-7; EMCOR Supp. Protest (B-407917.7) at 3-9. The protesters state that, although J&A’s proposal contains general statements as to the availability of Alutiiq, LLC’s resources, the proposal does not evidence any commitment on the part of Alutiiq-Mele and Alutiiq Management Services to perform any part of the contract or to provide personnel or resources. IAP Supp. Comments at 10-12; EMCOR Supp. Comments at 5-6.

An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm’s proposal demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 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. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD ¶ 149 at 5. While it is appropriate to consider an affiliate’s performance record where the affiliate will be involved in the contract effort or where it shares management with the offeror, it is inappropriate to consider an affiliate’s record where that record does not bear on the likelihood of successful performance by the offeror. National City Bank of Indiana, B-287608.3, Aug. 7, 2002, 2002 CPD ¶ 190 at 10.

The Navy contends that J&A’s proposal demonstrates a sufficient nexus between Alutiiq Global and sister subsidiaries Alutiiq-Mele and Alutiiq Management Services through the corporate structure of their parent company, Alutiiq, LLC, for the agency to reasonably attribute the sister subsidiaries’ corporate experience and past performance to Alutiiq Global, and thus to J&A. In this regard, the Navy notes the explanation in J&A’s proposal that Alutiiq, LLC is a [Deleted] organization such that [Deleted]. Supp. AR at 4.

We disagree with the Navy that it could attribute to J&A the experience and past performance of separate corporate affiliates that were not proposed to perform any work or to otherwise provide resources under the contract. In this regard, neither of the two corporate subsidiaries were identified anywhere in J&A’s technical proposal, except to the extent that J&A identified contracts awarded to the subsidiaries for which J&A requested corporate experience and past performance credit. The staffing resources identified by J&A are all either J&A staff or outside personnel. For example, all of the corporate key personnel proposed by J&A were officials employed by managing partner J&J, and all of the on-site key personnel proposed by J&A were employees of other entities, and not of Alutiiq Global or its sister subsidiaries. See IAP’s Technical Proposal, at 33-34, F2-1 thru F2-15.

We also find no support for the Navy’s and intervenor’s argument that, because J&A stated in its proposal that Alutiiq Global could “reach back” through Alutiiq, LLC for the resources of any of its 17 corporate subsidiaries, the agency was permitted to credit the joint venture with the corporate experience and past performance of these two separate corporate affiliates. Apart from statements in the proposal that resources could possibly be drawn from other corporate subsidiaries, there is nothing in the proposal--or anywhere else in the contemporaneous record--that shows that either Alutiiq-Mele or Alutiiq Management Services will be meaningfully involved in performance of the contract. Although J&A’s proposal refers generally to corporate support for the transition period, it does not indicate any role that Alutiiq Global’s sister subsidiaries would play. Also, the excerpts of J&A’s joint venture agreement (that have been provided for the record) state that joint venture members J&J and Alutiiq Global agree to contribute capital to the joint venture, but do not show any commitment to provide resources by Alutiiq, LLC or the other corporate subsidiaries. See J&A Technical Proposal, Teaming Arrangements.

The Navy and intervenor argue, however, that the identification of Alutiiq, LLC’s senior vice president of operations on J&A’s board of managers, and his responsibility for Alutiiq, LLC’s Operations and Maintenance Division, demonstrate a commitment of resources or performance on the part of the parent company. Even accepting that the Alutiiq, LLC’s vice-president’s position on the joint venture’s board of managers demonstrates a commitment of resources by the parent corporation, this does not show a commitment of resources from other separate corporate subsidiaries. The presence of Alutiiq, LLC’s vice president on the joint venture’s board also does not show that other Alutiiq subsidiaries will be meaningfully involved in contract performance. Cf., Hot Shot Express, Inc., B-290482, Aug. 2, 2002, 2002 CPD ¶ 139 at 3 (agency reasonably attributed past performance of parent and affiliates where proposal indicated interlocking officers and board of directors, parent’s officers taking active role in contract performance, and contract management and substantive support by parent’s corporate office).

In short, the record does not show that the resources of Alutiiq-Mele and Alutiiq Management Systems--that is, their workforce, management, facilities or other resources--will be provided or relied upon for contract performance here. Rather, the record shows that the agency’s attribution of the corporate experience and past performance of the two Alutiiq subsidiaries to the joint venture was based solely upon corporate affiliation. See Health Net Fed. Servs., LLC, B-401652.3, B-401652.5, Nov. 4, 2009, 2009 CPD ¶ 220 at 15 (general representations concerning involvement of parent company insufficient to demonstrate meaningful involvement); see also Universal Bldg. Maint., Inc., B-282456, July 15, 1999, 99-2 CPD ¶ 32 at 6 (no meaningful involvement where only nexus is common president for awardee and parent company). Accordingly, we find the Navy unreasonably credited J&A with the corporate experience and past performance of these two affiliates, and sustain IAP’s and EMCOR’s protests on this basis.  (IAP World Services, Inc.; EMCOR Government Services, B-407917.2, B-407917.3, B-407917.4, B-407917.5, B-407917.6, B-407917.7, Jul 10, 2013)  (pdf)


CCE asserts that the solicitation did not require offerors to propose a deputy program manager with five years of experience as a program manager. Instead, according to CCE, there are certain sub-areas within the field of program management--e.g. maintenance, logistics, and quality control/quality assurance--and as long as the proposed deputy project manager listed experience in one of these sub-areas, it met the requirement for program management experience. CCE claims that since its proposed deputy program manager has over 5 years of experience in several of the sub-areas within the field of program management, he meets the requirements for 5 years of program management experience.

The agency responds that CCE is confusing the field of project management with that of program management. In this regard, the agency explains that program management is the management of multiple facets of an overall program, as opposed to project management which is management of a single facet of a project. See Declaration of Evaluation Chairman at 3-6.

We find CCE’s interpretation of the requirement for experience in “program management in aviation programs” to be unreasonable when the solicitation is read as a whole and in a manner that gives effect to all provisions of the solicitation. Honeywell Regelsysteme GmbH, supra. In this regard, we agree with the agency that CCE’s interpretation, that the “program management” requirement is met if you manage a facet of an overall program, would mean that the requirement essentially duplicates the broader solicitation requirement for “professional Aviation managerial experience,” which appears to require only management of some aspect of an aviation function.

Further, we find that the agency reasonably determined that CCE’s proposed deputy program manager did not have the requisite 5 years of program management experience. In this regard, CCE listed the deputy program manager’s experience as a [REDACTED], which the agency reasonably viewed as not constituting management experience at all. Similarly, CCE listed experience as [REDACTED]. CCE Proposal at App. D; AR at 26. As discussed above, however, the agency reasonably viewed this experience as involving just one element of a program rather than as program management experience.

CCE asserts that even if its deputy program manager did not have the requisite years of program management experience, its proposal should not have been rated marginal. In this regard, CCE notes that the solicitation defined “marginal” as:

The proposal fails to satisfy some of the evaluation criteria. The proposal may have weaknesses that are considered significant. Although the weaknesses are considered significant, they are considered correctable. However, the identified weakness may present considerable risk to the Government. The proposal is not technically acceptable but may meet the requirement with revisions.

RFP § M.10.

CCE argues that since its proposed deputy project manager is currently the only full-time manager working under the extension to the incumbent contract, the agency cannot consider him a significant risk. The solicitation, however, specifically required a deputy program manager with 5 years experience in the area of aviation program management, while CCE’s proposed project manager has only 3.5 years in aviation program management. CCE’s proposal, therefore, did not simply contain a weakness, it failed to satisfy a specific requirement under the senior program management staff/key personnel subfactor in the solicitation. Accordingly, given the solicitation definition of marginal--including a “proposal [that] fails to satisfy some of the evaluation criteria”--the proposal was reasonably evaluated as marginal under this subfactor.

Finally, CCE asserts that only a proposal that was rated unacceptable was ineligible for award, and thus, its marginal rating did not disqualify it from consideration for award. The solicitation, however, indicated otherwise. The solicitation, which provided for award to the low priced, technically acceptable offeror, explained that a marginal rating meant “[t]he proposal is not technically acceptable but may meet the requirement with revisions.” RFP § M.10. Thus, the solicitation specifically defined a marginal proposal as not acceptable. Since a marginal rating rendered the proposal unacceptable, the agency reasonably determined that CCE was not eligible to receive the award.  (Contracting, Consulting, Engineering, LLC, B-405732.4, B-405732.6, B-405732.7, Feb 2, 2012)  (pdf)


On November 2, two days after the RFP was issued, the Small Business Administration (SBA) placed NDC on the excluded parties list and proposed the firm for debarment. Contracting Officer’s (CO) Statement at 2. Shortly thereafter, NDC and Sevatec met with the CO and informed Defense Security Services (DSS) that Sevatec was interested in executing a novation agreement, under which Sevatec would “buy” NDC’s information technology support contract. CO’s Statement at 5. The CO informed the SBA on several occasions that DSS supported Sevatec’s proposed purchase of NDC’s contract and that DSS was “deeply concerned” that NDC’s personnel would leave the firm. See AR, Tab 16g, Nov. 14, 2011, CO Email to SBA; Protest, exh. B, Nov. 18, 2011, CO Letter to SBA; Protest, exh. G, Dec. 8, 2011, CO Letter to SBA. On December 23, DSS modified NDC’s contract to recognize the novation agreement, and transferred NDC’s contract to Sevatec effective on January 1, 2012. In pertinent part, the novation agreement provided that Sevatec was “entitled to all rights, titles, and interests of [NDC] in and to the contract as if [Sevatec] were the original party to the contract.” Protest, exh. A, at 4. The novation agreement did not discuss any transfer of NDC’s assets or employees to Sevatec.

After the novation of NDC’s contract, DSS asked Sevatec about the percentage of work that its teaming partners would perform. On January 4, Sevatec informed the agency that Sevatec was no longer proposing to use NDC. CO’s Statement at 7; AR, Tab 12b, Sevatec Email to DSS, Jan. 4, 2012.

(sections deleted)

Although Sevatec raises a number of arguments challenging the agency’s evaluation, the essence of Sevatec’s complaint is that the DSS improperly failed to credit the protester with NDC’s experience given that Sevatec assumed all rights and responsibilities for NDC’s contract under the novation agreement. Protest at 8. Sevatec also points out that it hired a “majority” of the incumbent NDC employees following the establishment of the novation agreement. Protester’s Comments at 7. Sevatec contends that, if the agency had credited the firm with NDC’s experience, its proposal would have been selected for further competition in phase two.

In reviewing protests challenging the evaluation of proposals, we do not conduct a new evaluation or substitute our judgment for that of the agency but examine the record to determine whether the agency’s judgment was reasonable and in accord with the RFP evaluation criteria. Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD ¶ 223 at 4.

Here, the record provides no basis to conclude that the evaluation of the protester’s experience was unreasonable or not in accordance with the solicitation’s experience factor. As noted above, the agency found a number of significant weaknesses in Sevatec’s experience, including a lack of experience with Department of Defense information technology support services. See AR, Tab 17d, Phase One Technical Evaluation Report, at 29. Sevatec does not contend that it has such experience, but argues that under the terms of the novation agreement it entered into with DSS the agency was required to credit Sevatec with NDC’s experience under the terms of that agreement. We disagree. Neither the express terms of the agreement, nor any other authority of which we are aware, provides for the legal fiction that Sevatec was entitled to claim as it own the experience of another unrelated entity.

To the extent Sevatec also claims that its having incumbent personnel from the NDC contract should have allowed Sevatec to claim NDC’s experience, the RFP did not provide for consideration of personnel experience under this factor. Rather, the solicitation stated that the agency would evaluate the experience of the offeror and any significant subcontractors or joint venture partners. See RFP amend. 6, at 1.

In short, Sevatec has not demonstrated that the agency’s evaluation of its experience was unreasonable. Given its marginal experience rating and higher price, there is no basis to object to the agency’s decision not to include Sevatec’s proposal in phase two of the competition.  (Sevatec, Inc., B-406784, Aug 23, 2012)   (pdf)


HGL also questions the past performance rating for the fifth awardee, Plexus-PARS, JV. In evaluating the joint venture’s past performance, the agency considered past performance questionnaires submitted on behalf of each of the members of the joint venture, as opposed to questionnaires that were submitted for the joint venture as an entity. HGL asserts that since the solicitation required the offeror to submit the past performance questionnaires, and since the Plexus-PARS JV did not submit any past performance information questionnaires for the joint venture, but only for the members of the joint venture, it should have been rated neutral, rather than very low risk, for past performance.

This argument is without merit. An agency properly may consider the relevant experience and past performance history of the individual joint venture partners of the prime contractor in evaluating the past performance of a joint venture, so long as doing so is not expressly prohibited by the RFP. MVM, Inc., B-290726 et al., Sept. 23, 2002, 2002 CPD ¶ 167 at 4; Network Sec. Techs., Inc., B-290741.2, Nov. 13, 2002, 2002 CPD ¶ 193 at 9. Here, the RFP did not prohibit considering the past performance of individual joint venture partners in evaluating an offeror's past performance. Accordingly, since there were at least five questionnaires submitted on behalf of the individual joint venture partners, the Plexus-PARS JV satisfied the solicitation requirement in this regard. Further, since HGL has not otherwise challenged the evaluation of the quality of the past performance of the Plexus-PARS JV, as evidenced by the questionnaires for the joint venture partners, we have no basis to question the agency’s assignment of a very low risk rating to the offeror for its past performance.  (HydroGeoLogic, Inc., B-406635, B-406635.2, B-406635.3, B-406635.4, Jul 25, 2012)  (pdf)


Experience Factor

Sigmatech challenges the Army’s determination that CAS’s experience was superior to Sigmatech’s, where CAS’s experience was rated outstanding and Sigmatech’s was rated very good. In this regard, Sigmatech complains that, even though Sigmatech itself did not have “direct” experience with the PATRIOT missile program, the Army failed to recognize that its team members did have such experience. Protest at 5. Sigmatech also complains that the Army failed to recognize that Sigmatech had extensive AMCOM programmatic domain experience, and challenges the Army’s conclusion that Sigmatech had failed to identify experience for 19 PWS requirements. Protest at 9.

The evaluation of a proposal or quotation is a matter within the agency’s discretion. Ball Aerospace & Techs. Corp., B-402148, Jan. 25, 2012, 2010 CPD ¶ 37 at 9. In reviewing a protest against an agency’s evaluation, our Office will not reevaluate quotations but instead will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. Torres Advanced Enter. Solutions, LLC, B-403036, Aug. 18, 2010, 2010 CPD ¶ 197 at 2. With respect to color or adjectival ratings, we have recognized that they are merely guides for intelligent decision-making in the procurement process. Citywide Managing Servs. Of Port Washington, Inc., B-281287.12, B-281287.13, Nov. 15, 2000, 2001 CPD ¶ 6 at 11. Where an agency reasonably considers the underlying bases for the ratings, including the advantages and disadvantages associated with the specific content of competing proposals, in a manner that is fair and consistent with the terms of the solicitation, the protester’s disagreement over the adjectival or color ratings is essentially inconsequential in that it does not affect the reasonableness of the judgments made in the source selection decision. Sherrick Aerospace, B-310359.2, Jan. 10, 2008, 2008 CPD ¶ 17 at 6.

Here, the record shows that the agency reasonably evaluated the firms’ quotations under the experience factor. That is, as explained below, the Army assessed the quantity and quality of the experience presented by each firms’ quotation in determining that CAS presented superior experience.

With respect to Sigmatech’s very good rating under the experience factor, the agency found that Sigmatech provided a depth and breadth of experience that was directly related to most (113 of 132) of the PWS requirements. See AR, Tab Q, Experience Evaluation Worksheet. In this regard, Sigmatech was credited for demonstrating directly relevant experience with the PATRIOT missile program with respect to 67 PWS requirements and demonstrating experience with related systems with respect to 46 PWS requirements. Id. at 4.

Although Sigmatech challenges the agency’s determination that the firm did not demonstrate relevant experience with respect to 19 PWS requirements, we have reviewed the record with respect to these requirements and find that Sigmatech in fact did not demonstrate relevant experience that addressed each particular PWS requirement. For example, paragraph 4.2.2.15 of the PWS provided that “[t]he contractor shall perform independent evaluation and analysis of specified elements of program plans, costs, schedules, and associated data integrations.” The Army found that Sigmatech did not reference experience performing independent evaluation of program plans, costs, schedules, and associated data integrations. Contracting Officer’s Statement at 11. In its comments, Sigmatech admits that it did not expressly address this PWS requirement in its quotation, but argues without citation to its quotation, or explanation, that its quotation otherwise addressed each of the elements in the paragraph. See Protester’s Comments at 12. Without citation to its quotation or explanation as to how it satisfied this PWS requirement, we are unable to credit Sigmatech’s argument that it demonstrated relevant experience satisfying this requirement.

As another example, paragraph 5.2.14 of the PWS provided that the contractor would, among other things:

develop 2D/3D graphic and tabular methods of representing LTPO missile system threats, deployments, and other elements of the battle space presentation. This includes development and maintenance of analysis tools such as the PATRIOT Analysis Tool, PATRIOT Telemetry Analysis Graphing Software, Virtual Intercept Engagement Workstation Software, PATRIOT Endgame Reconstruction Software, and Debris.

The Army found that, although Sigmatech demonstrated experience using PATRIOT analysis tools, it had not shown experience developing and maintaining these tools. Contracting Officer’s Statement at 12. Although Sigmatech disagrees with this assessment, it has not shown it to be unreasonable. See Protester’s Comments at 13.

In short, we find no basis from our review of the record to question the agency’s assessment that Sigmatech demonstrated very good experience, where a very good rating reflected experience that related to most PWS requirements. See AR, Tab Q, Sigmatech Experience Evaluation Worksheet, at 8.

The protester also challenges the Army’s evaluation of CAS’s experience as outstanding and superior to Sigmatech’s. In this regard, Sigmatech complains that CAS received an outstanding rating under the experience factor, even though the evaluators found that CAS had not demonstrated directly related experience with 3 of the 132 PWS requirements. Although the Army defined an outstanding rating under this factor as reflecting experience under all aspects of the PWS requirements, see id. at 8, the record shows that the SSEB and SSA were aware that CAS had not demonstrated experience with all of the PWS requirements. See, e.g., AR, Tab V, Source Selection Decision, at 2. The SSA concluded that the three PWS requirements for which CAS did not show experience were not related to each other and were relatively minor. Id. The SSA concluded that, whether CAS’s experience was rated outstanding or very good, CAS had “demonstrate[d] extensive performance capability” and its experience indicated that CAS presented virtually no risk. Id. Although Sigmatech disagrees with the agency’s judgment in this regard, it has not shown that the agency acted unreasonably.

Sigmatech also complains that the Army unreasonably gave significantly greater weight to CAS’s direct experience over Sigmatech’s relevant, but not direct, experience, where the RFQ stated that, if a firm had “no direct experience in supporting the specific system, experience gained on related systems will be evaluated.” Protest at 6, citing RFQ, Evaluation Criteria, at 1. We disagree with Sigmatech that this solicitation provision prevented the agency from concluding that direct experience was of greater value than related experience. In this regard, we have found that an agency may reasonably assign a higher rating for directly related experience even where such experience was not stated to be a requirement. See, e.g., Sage Diagnostics, B-222427, July 21, 1986, 86-2 CPD ¶ 85 at 3.  (Sigmatech, Inc., B-406288.2, Jun 20, 2012)  (pdf)


As a final matter, ARTS argues that NASA improperly failed to consider the lack of past performance for Vantage concerning contract management. ARTS contends that NASA could not rely on SGT’s past performance for this information because Vantage is the joint venture’s managing partner.

VPL is an SBA 8(a) mentor-protégé joint venture where Vantage, an 8(a) firm, is the protégé of SGT, a large business mentor to Vantage under the SBA’s mentor-protégé program. When an agency is evaluating the experience and past performance of a mentor-protégé joint venture, absent an express prohibition in the RFP not present here, we have found no basis to preclude an agency from considering the experience and past performance of both partners in such an arrangement. JACO & MCC Joint Venture, LLP, B-29334.2, May 18, 2004, 2004 CPD ¶ 122 at 7; see also Enola-Caddell JV, B-292387.2, B-292387.4, Sept. 12, 2003, 2003 CPD ¶ 168 at 7-8 n.7 (citing SBA’s view that it appeared contrary to the intent of SBA’s 8(a) mentor-protégé program for a procuring agency to downgrade a proposal based on the lack of experience/past performance of a protégé; in order to be a protégé, an entity must lack experience).

We do not find NASA’s consideration of the contract management experience of the mentor, SGT, improper. One type of assistance provided by mentors to eligible protégés under the mentor-protégé program is technical and/or management assistance. 13 C.F.R. § 124.520(a). SGT’s contract management experience is unquestioned, and the joint venture agreement cites the mentor-protégé agreement as stating that SGT agreed to provide Vantage with management and technical and other assistance. AR, Exh. 4, Joint Venture Agreement at 2. VPL’s proposal also notes ways in which SGT will provide support to the joint venture in contract management areas. The CO states that the strength for the relevance part, as opposed to a significant strength, reflects NASA’s consideration of the lack of relevant experience of the joint venture itself and of Vantage. CO’s Statement at 23. ARTS has not shown the agency’s evaluation in this regard was unreasonable or otherwise improper.  (ASRC Research & Technology Solutions, LLC, B-406164,B-406164.3, Feb 14, 2012)  (pdf)


Mokatron first contends that it was unreasonable for the Air Force to assign its proposal a limited confidence rating under the present/past performance factor "based on the sole fact" that Mokatron is a newly formed entity. Comments at 3. Mokatron further complains that the agency "entirely discounted" the performance history of its key personnel. Protest at 8.

Here, contrary to Mokatron's assertion that the rating was "based on the sole fact" that Mokatron is a newly formed entity, the record shows the agency based its final assessment on multiple sources of information, including the offeror's present/past performance proposal, the CPARs, the [performance confidence assessment group] PCAG evaluation, and the pre-award surveys. AR, Tab 23, Source Selection Decision Document, at 4. In this regard, the record reflects the SSA's specific consideration of the prior contracts performed by Mokatron's key personnel. AR, Tab 23, Source Selection Decision Document, at 6-9. As discussed above, the SSA reviewed NTC's performance under the two recent, relevant/somewhat relevant contracts, considered both the CPAR adjectival ratings and the substantive narrative contained in the CPARs, considered NTC's corrective actions undertaken to address its prior performance problems, and acknowledged that Mokatron's performance record "demonstrated efforts involving all of the magnitude of effort and complexities required by the [performance work statement]." Id. at 9. Additionally, although Mokatron did not have any financial history, the agency accepted NTC's corporate guarantee. Id. at 8.

Nonetheless, after reviewing the entire record discussed above, the SSA had "some concern" regarding a "higher risk of [Mokatron] experiencing potential difficulties" in performing the contract requirements. The SSA concluded that "[Mokatron's] quality of performance and results of the Preaward Survey created doubt of successful performance." Id. at 9. (Underlining added.) The SSA therefore concluded "Mokatron has been rated with a confidence level of Limited Confidence." Id.

Based on our review of the record, we reject the protester's assertion that the Air Force based Mokatron's past performance rating on the "sole fact" that Mokatron was a newly formed entity, or that it "entirely discounted" the performance history of its key personnel. To the contrary, the bulk of Mokatron's evaluation related to NTC's prior contracts, showing that the agency gave Mokatron credit for its members' performance despite being a new corporate entity. Similarly, the record shows that in reaching the limited confidence rating decision, the SSA considered multiple sources of information. Mokatron's assertions in this regard are without merit.

Next, Mokatron complains that the agency failed to take into account the most recent CPAR regarding its prior performance. In this regard, Mokatron asserts that, had the agency considered this CPAR, it would have determined that "all those perceived deficiencies were not only resolved but Mokatron was performing . . . well." Protest at 8.

Here, the record shows that the agency's past performance reviews for all offerors were conducted from October 19, 2010, to January 25, 2011. AR, Tab 31, Statement from Contract Specialist. The CPAR Mokatron asserts the agency should have reviewed was completed on March 9, 2011. AR, Tab 28, CPAR (March 9, 2011), at 3. We find nothing objectionable in the agency's failure to consider a document that was not available to it at the time it performed the past performance evaluation. See Honolulu Shipyard, Inc., B-291760, Feb. 11, 2003, 2003 CPD para. 47 at 6.

In any event, although the agency did not review the more recent CPAR, the SSA was aware of corrective action that NTC had taken, noting in the SSDD that "NTC has taken corrective action for unacceptable performance." AR, Tab 23, Source Selection Decision Document, at 9. It is within the agency's discretion to consider the significance of an offeror's prior performance in the context of, among other things, the contractor's actions to address prior problems. See e.g., L-3 Sys. Co., supra, at 6. In this regard, the SSA wrote, "At this time I cannot determine whether the corrective action was sufficient to prevent recurrence," and concluded, "I'm not willing to assume any potential risk in disruption of the schedule, increased cost or degradation of performance." AR, Tab 23, Source Selection Decision Document, at 9. On this record, we reject Mokatron's assertion that we should sustain its protest because the agency did not consider the most recent CPAR.

Finally, Mokatron argues that the PCAG's present/past performance evaluation was improper for failing to accept the adjectival ratings contained in the CPARS that were reviewed. Protest at 1. Mokatron further contends that the PCAG's evaluation unfairly emphasized negative past performance, did not reflect an "independent investigation," and was otherwise "arbitrary and capricious." Comments at 1-2; see also Protest at 2, 8..

An evaluating official may properly look behind an adjectival rating to determine the relative strengths or weaknesses that the rating reflects. See generally Johnson Controls World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD para. 88 at 6; ATA Def. Indus., Inc., B-282511, B‑282511.2, July 21, 1999, 99-2 CPD para. 33 at 12. Further, an agency has broad discretion to determine the manner and extent to which it will rely on summary ratings and the written narratives underlying such ratings. Id.

As noted above, the PCAG concluded that the CPARs' narrative descriptions of NTC's past performance properly reflected greater risk and lower adjectival ratings than the ratings assigned by the initial assessing official. AR, Tab 8, Performance Confidence Assessment, at 32-33. In this regard, the PCAG relied on specifically identified aspects of NTC's prior performance that were discussed in the CPARs. Based on our review of the record, we find no basis to question the reasonableness of the PCAG's evaluation.

In any event, as discussed above, SSA's ultimate assessment of limited confidence under the past/present performance factor reflected consideration of multiple sources of information, including Mokatron's past performance proposal, the CPARs, the PCAG assessment, and the pre-award surveys. See AR, Tab 23, Source Selection Decision Document, at 4, 6-9. In this regard, the SSA specifically reviewed the CPARs from the two NTC contracts, noting the initial assessing official's ratings, NTC's prior failure to timely complete a project leading to a contract deficiency report, the recommendations for performance improvement, and the corrective actions NTC had undertaken, as well as the financial viability assessment contained in the pre-award surveys. Id. at 8. Based on this comprehensive review, the SSA made the final confidence assessment based on her consideration of the entire record. On this record, we reject Mokatron's assertion that the protest should be sustained because the PCAG evaluation did not accept the adjectival ratings contained in the CPARS that were reviewed.

In summary, Mokatron's protest does not present any basis for us to question the Air Force's evaluation of the firm's proposal under the present/past performance factor. Further, based on our review of the record, the SSA reasonably concluded that Aero Tech's higher present/past performance proposal rating outweighed the price difference between its proposal and Mokatron's lower-rated, lower-priced proposal.

The protest is denied.  (CMJR, LLC d/b/a Mokatron, B-405170, September 7, 2011)  (pdf)


DynCorp challenges the overall evaluation of L-3's past performance as good/low risk.[3] In this regard, the RFP required offerors to furnish the following:

[a] description of all relevant Government and/or commercial contracts including prime contracts and major subcontracts received or performed during the past five years, for same or similar Fixed Wing aircraft and effort (Maintenance, Logistics and Engineering Services) required by this PWS and solicitation.

RFP sect. L.14, Vol. IV, Past Performance. Offerors also were required to provide past performance questionnaires (PPQ) to references for the identified contracts. The RFP provided that the agency would "focus its inquiries on the offeror's and any major subcontractor's records of performance as it relates to the solicitation requirements," including past and current performance records concerning aircraft maintenance and parts supply; compliance with FAA regulations, and safety and airworthiness requirements; ability to perform/develop FAA Supplemental Type Certificates; ability to select, retain, train, support and replace key personnel; timeliness of performance; quality of results; and customer satisfaction, cooperative behavior and Government interface. RFP sect. M-1, Past Performance.

L-3's proposal identified three relevant L-3 Vertex contracts, for all of which references provided PPQs. Only one of the three contracts was viewed as indicating a moderate (rather than very low) level of performance risk. SSD at 30-31; L‑3 Past Performance Evaluation at 3. In this regard, the past performance information received by the Army indicated that a subcontractor under L-3's contract with U.S. Customs & Border Protection (CBP) for maintenance, logistics management and engineering support for 17 different aircraft types (contract No. HSBP1005C00770), used an inexperienced workforce, resulting in delivery delays, unavailable P-3 aircraft, and cost overruns. However, while L-3 was faulted for its oversight of the subcontractor, and a telephone inquiry by the Army confirmed dissatisfaction with contractor performance, both PPQs received for the contract rated overall quality of performance and schedule performance good, performance management satisfactory, and management of key personnel good (one PPQ) or satisfactory (second PPQ). L‑3 Past Performance Evaluation at 12-15. Further, the subcontractor employed by L-3 under that contract was not proposed for the current effort. Contracting Officer's Supplemental Statement, Aug. 25, 2010, at 3.

In addition, the agency received reports of exceptional/excellent or good performance under L-3's two other relevant contracts. In this regard, for L-3's contract to furnish maintenance and logistics support for Air Force C-12 aircraft stationed worldwide (contract No. F34601-00-C-0111), the Department of Defense Past Performance Information Retrieval System (PPIRS) and one of the two PPQs received rated L-3's quality of performance exceptional/excellent, while the other PPQ rated it good. L-3 Past Performance Evaluation at 6-9. Likewise, for L‑3's contract to furnish logistics support for Navy C-12 aircraft (contract No. N00019-00-D-0272), the PPIRS report indicated very good quality, schedule, cost control and management, while the PPQ received indicated excellent quality and schedule performance. L-3 Past Performance Evaluation at 9-12. Agency evaluators further noted that the PPQs or PPIRS data for the contracts of the two subcontractors (L-3 Link Simulations & Training and M1 Support Services) proposed by L-3 to perform 30% of the current effort indicated high levels of customer satisfaction. L-3 Past Performance Evaluation at 3, 19-23.

While, as noted by DynCorp, the poor performance of L-3's subcontractor and poor supervision by L-3 under its CBP contract resulted in a moderate performance risk assessment for that contract, that rating did not preclude the agency from finding that the totality of L-3's past performance warranted a good/low risk rating. Rather, the agency determined that several considerations--L-3's exceptional/excellent or good performance on two other relevant contracts; and reported high levels of customer satisfaction with the performance of L-3's proposed subcontractors (who were different than the subcontractor with the poor performance under the CBP contract)--offset the problem under the CBP contract. We find nothing unreasonable in the agency's evaluation conclusions.  (DynCorp International, LLC, B-403065; B-403065.2, September 17, 2010)  (pdf)


L&N responded to the agency's discussions on July 20, and revised its proposal, but not its proposed price. The agency evaluated L&N's and Larkor's revised proposals as follows:

  L&N Larkor
Technical Excellent Excellent
  Technical approach Excellent Excellent
Construction schedule Excellent Excellent
Prime contractor experience Good Good
Key subcontractors Excellent Excellent
Past Performance Excellent Excellent
Price $8,324,588 $8,281,600

AR (B-403032.2; B-403032.4), Tab 19, Technical Evaluation Panel (TEP) Report, at 2‑3.[4] The TEP's adjectival ratings were supported by narratives that identified respective strengths and weaknesses in the offerors' proposals.

The contracting officer (CO), the source selection authority for this procurement, met with the TEP and reviewed the TEP's evaluation of the offerors' revised proposals. CO's Statement at 5. He concluded that Larkor's lower-priced proposal reflected the best value to the agency. AR, Tab 20, Amended Source Selection Memorandum at 10. The CO noted that both Larkor and L&N had excellent ratings under the technical approach and past performance factors and had proposed the same subcontractor, a firm which "has successfully accomplished this same type of work before on a larger scale, [and] will complete the vacuum system, as well as the force main and gravity piping." Id. at 6. He found that L&N's proposal did not provide any technical benefit that would justify the firm's higher price, and selected Larkor's proposal on the basis of its low price. Id. at 7.

(sections deleted)

L&N also protests Larkor's good rating under the prime contractor experience subfactor, arguing that the awardee lacks relevant experience in contracts of size and scope similar to this project.

In reviewing protests of alleged improper evaluations and source selection decisions, it is not our role to reevaluate submissions; rather, we examine the record to determine whether the agency's judgment was reasonable and in accord with the stated evaluation criteria and applicable procurement laws and regulations. Panacea Consulting, Inc., B‑299307.4, B‑299308.4, July 27, 2007, 2007 CPD para. 141 at 3. A protester's mere disagreement with an agency's judgment is not sufficient to establish that an agency acted unreasonably. Entz Aerodyne, Inc., B-293531, Mar. 9, 2004, 2004 CPD para. 70 at 3.

The TEP found, under the prime contractor experience subfactor, that both Larkor and L&N had some experience with projects of similar size and scope. See AR, Tab 19, TEP Report, at 4‑5. Specifically, the TEP found that Larkor identified for its experience five construction projects that were somewhat relevant. The TEP also found that although L&N identified a project that the TEP found very relevant in size and scope, the protester also identified two projects that were not relevant and two that were found somewhat relevant. We find that the TEP and SSA reasonably concluded that Larkor's and L&N's identified experience warranted a good rating under the prime contractor experience subfactor.

L&N also complains that the agency used information from its proposal concerning the experience of its subcontractor in evaluating the awardee's offer of the same subcontractor. Protest at 4. We find no merit to L&N's apparent belief that it should have received a higher rating than Larkor for the experience of the subcontractor that both firms offered, because L&N did a better job explaining that experience in its proposal. We have found that where, as here, two firms propose the same subcontractor, an agency may not ignore the subcontractor's experience or past performance in evaluating the firms' proposals, even where one firm provided more information concerning the subcontractor in its proposal. See Consolidated Eng'g Servs. Inc., B‑279565.2, B‑279565.3, June 26, 1998, 99‑1 CPD para. 75 at 6.

The protest is denied.  (L&N/MKB, Joint Venture, B-403032.3, December 16, 2010) (pdf)


The protester argues that it was improper for the agency to reject its proposal simply because it relied on the experience of its subcontractor to satisfy the vessel owner/operator requirement. The protester maintains that the RFP did not require that prime contractors be the vessel operator or owner/operator, and that its subcontractor's experience should be considered in evaluating eligibility because the RFP permits consideration of the experience of subcontractors and teaming partners in evaluating past performance. Protest at 9; Comments at 5-9.

The agency maintains that the term "offeror" in both the section K.19 certification and in sections L and M of the RFP clearly require the company submitting the offer, Camden in this instance, to have operated large government-owned or commercial vessels of the required size within the last 5 years.[5] Agency Legal Memorandum at 5. The agency further argues that the consideration of a subcontractor's or teaming partner's experience in the past performance evaluation does not negate the requirement that the offeror meet the mandatory eligibility requirement, since an offeror must satisfy the mandatory eligibility requirements before its proposal will be considered for evaluation under any of the other evaluation factors. In any event, the agency contends, [DELETED] experience is not relevant to the owner/operator issue because [DELETED] cannot, under section H.11 the RFP, perform the core requirement of operating the vessel, and [DELETED] will not be acting as the ship manager. Agency Legal Memorandum at 12-13.

Where a protester challenges an agency's evaluation resulting in the rejection of its proposal as unacceptable, our review is limited to considering whether the evaluation is reasonable and consistent with the terms of the RFP and applicable procurement statutes and regulations. National Shower Express, Inc.; Rickaby Fire Support, B-293970; B-293970.2, July 15, 2004, 2004 CPD para. 140 at 4. The protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable. CAE USA, Inc., B-293002; B-293002.2, Jan. 12, 2004, 2004 CPD para. 25 at 6.

Based on our review of the record, we note that the RFP in several places warned vendors that in order to be eligible for award, the offeror had to meet mandatory eligibility requirements and had to submit adequate documentation to demonstrate compliance with the requirements. RFP sections L.7.1, M.3.1. To satisfy the requirement that the offeror be an operator or owner/operator of the appropriate size vessel, the RFP specifically required that an offeror certify that it had the appropriate experience as either an operator or owner/operator of a specific type of vessel. RFP sect. K.19. This certification made no mention of accepting, in lieu of the offeror's certification, a certification of a subcontractor or teaming partner. RFP sect. K.19. Indeed, the representations and certifications set forth in section K of the RFP are signed by the offeror, which is the entity submitting the proposal, not its subcontractors or team members. That the certification was required by the offeror, and not its subcontractors and team members, is also consistent with section H.11 of the RFP, which required that the core services be performed by the offeror and not its subcontractors or team members. Based on the language of this RFP, we find that the agency's refusal to accept the certification of [DELETED] was reasonable.

We also reject the protester's argument that the experience of teaming partners and subcontractors could be used to satisfy the mandatory eligibility requirements here because such experience could be considered under the past performance evaluation. As explained above, offerors were warned that the mandatory eligibility requirements were separate and distinct from the evaluation factors, and that offerors who did not meet those requirements would not be further evaluated. RFP sect. M.2.2.2.

Given the clear language of the RFP concerning minimum eligibility requirements, and because it is clear from the record that Camden certified that it was not an operator or owner/operator of the specified vessel, the contracting officer reasonably concluded that it did not satisfy a mandatory eligibility requirement and reasonably eliminated the Camden proposal from further consideration.  (Camden Shipping Corporation, B-402743.2, November 5, 2010)  (pdf)


World Airways argues that the agency's evaluation of its and the awardees' proposals under the RFP's past performance factor was inconsistent with the terms of the solicitation and unreasonable. The protester argues that its "little confidence" past performance rating was caused by the agency placing undue emphasis on World Airways' principal subcontractor's performance on the last 15 months of the CENTCOM Theater Express Tender Program and the agency's failure to adequately consider other aspects of World Airways' and its subcontractor's performance.

The RFP stated that the "purpose of the past performance evaluation is to allow the Government to assess the offeror's [and principal subcontractor's] ability to perform the effort described in the RFP, based on the offeror's demonstrated present and past performance." RFP at 39. Offerors were instructed that their proposals were to include "a listing of not more than five contracts and/or customers, public or private," for which the offeror and/or its proposed subcontractor "has performed air cargo services . . . within the past three years, similar in scope and complexity" to the services described in the RFP. RFP at 37-38. The solicitation further stated that the agency would "first evaluate the recency (within the last 3 years) and then the relevancy" of the past performance, and that the relevancy of the past performance would "be considered in the overall confidence assessment rating for the offeror." RFP at 39. The solicitation also stated that "the Government reserves the right to give greater consideration to information on those contracts deemed most relevant to the efforts described in this RFP." RFP at 40.

The evaluation of past performance, including the agency's determination of relevance and scope of an offeror's performance history to be considered, is a matter of agency discretion, which we will not find improper unless unreasonable or inconsistent with the solicitation's evaluation criteria. National Beef Packing Co., B‑296534, Sept. 1, 2005, 2005 CPD para. 168 at 4.

World Airways' proposal provided information regarding the past performance of itself or its principal subcontractor on five different efforts, including the CENTCOM Theater Express Tender Program. The agency received questionnaires from references regarding these efforts, and also accessed information available regarding World Airways' past performance from the Past Performance Information Retrieval System (PPIRS).

The agency found that while World Airways' or its subcontractor's performance on efforts determined to be "relevant" or "somewhat relevant" ranged from "very good" to "satisfactory," the protester's principal subcontractor's efforts on the CENTCOM Theater Express Tender Program, which was determined to be "highly relevant" because it is "essentially the same magnitude of effort and complexities as this solicitation requires," was "marginal due to performance issues." AR, Tab 36, Initial Consensus Past Performance Evaluation--World Airways, at 1. In this regard, the agency noted that "World Airway's principal subcontractor's . . . on-time performance rate for [the CENTCOM Theater Express Tender Program] was [DELETED]%," and that the principal subcontractor's "most recent" on-time performance rate for the CENTCOM Theater Express Tender Program had "decreased to [DELETED]%." Id. The agency concluded that although World Airways "had performed well on the less than highly relevant efforts, their marginal performance on the highly relevant [CENTCOM Theater Express Tender Program] effort raises substantial doubt that the contractor will successfully perform the required effort, especially at the required 85% on-time performance standard" set forth in the RFP. Id.; see RFP PWS, at 9. Consistent with this conclusion, the agency assigned a rating of "little confidence" to World Airways' proposal under the past performance evaluation factor.

The agency's concerns regarding World Airways' past performance were raised with the protester during discussions through the issuance of an evaluation notice (EN) setting forth, among other things, the agency's calculations of the on-time performance rates for World Airways' significant subcontractor on the CENTCOM Theater Express Tender Program, and the agency's rating of World Airways under the past performance factor of "little confidence." AR, Tab 37A, World Airways EN, at 43. The protester submitted a lengthy response to the agency, explaining that its principal subcontractor's overall on-time performance rate was adversely impacted by its performance on inter-Afghanistan routes. AR, Tab 37A, World Airways Response, at 44-49. World Airways described the factors to which it attributed its principal subcontractor's on-time performance rate and provided some detail as to how it intended to "improve delivery performance on the inter-Afghanistan regions." Id. at 48-51.

The agency reviewed World Airways' EN response, made a minor adjustment to World Airways' "most recent" on-time performance rate, and again evaluated World Airways' proposal under the past performance factor as "little confidence." Contracting Officer's Statement at 20; see AR, Tab 42, Proposal Analysis Report, at 26. The agency, while again recognizing World Airways' or its subcontractors' "very good" to "satisfactory" performance on "the less than highly relevant efforts," again pointed to the "highly relevant" CENTCOM Theater Express Tender Program and characterized the subcontractor's performance as "marginal . . . based on their 15-month (Oct. 08‑Dec. 09) on-time performance of [DELETED]%, with emphasis on the most current 3-month (Oct. 09-Dec. 09) on-time performance of [DELETED]%[,] as verification of their inability to adapt/sustain performance in the CENTCOM AOR." AR, Tab 42, Proposal Analysis Report, at 26. The agency concluded here that "[c]onsidering the overall relevancy of the past performance references, the recency of past performance, and the marginal to very good ratings assigned, there is substantial doubt World Airways will successfully perform the required effort." Id.

The protester contends that the agency's evaluation of the offerors' past performance was inconsistent with the terms of the solicitation because the agency, while generally considering and evaluating the offerors' performance within the "last three years," expressly chose to limit its evaluation of past performance information regarding World Airways (and its subcontractor) and each of the awardees on the "highly relevant" predecessor CENTCOM Theater Express Tender Program, to those services provided during a 15‑month period.

The agency admits, and the record shows, that it limited its consideration of the past performance information on the predecessor CENTCOM Theater Express Tender Program to those services provided during a 15‑month period from October 2008 to December 2009 with special emphasis on the last 3 months of that period. The agency explains that it determined that the 15‑month limitation

would provide the best assessment to determine if there were any performance trends, if carriers were able to adapt their commercial transportation networks to changing conditions within the CENTCOM AOR, and to aid in assigning the overall past performance confidence assessment rating.

Contracting Officer's Supp. Statement at 1. The agency also explains that this determination was based upon its conclusion that the available data on the CENTCOM Theater Express Tender Program "prior to October 2008 was unreliable for on-time performance comparison," given the manner in which the data was captured and entered into the agency's records. Id. at 1-2; see Contracting Officer's Statement at 24. The agency provides a detailed explanation as to why that data is unreliable, noting, for example, that prior to October 2008, when certain changes were made to the manner in which performance data was captured and entered into the agency's records, a carrier "could deliver the cargo on-time; however, if the military did not update the database the same day, which was a problem before the implementation of [certain] data interface updates, the carrier's shipment could be counted as late." Contracting Officer's Statement at 24.

Contrary to the protester's arguments, the agency's decision to limit its evaluation of past performance under the CENTCOM Theater Express Tender Program to the last 15 months was not inconsistent with the RFP. Although the RFP provided that the agency would "evaluate the recency" of the offeror's past performance, and defined "recency" as having been performed "within the last 3 years," the solicitation cannot reasonably be read as requiring consideration of every aspect of the offeror's past performance as detailed in their proposal or available to the agency that occurred within the last 3 years. Instead, we think the language of the solicitation clearly provides that the "recency" aspect of the past performance evaluation was to ensure that the past performance considered had occurred no more than 3 years ago.

Moreover, we find the agency had a reasonable basis for limiting its evaluation of the past performance under the CENTCOM Theater Express Tender Program to the last 15 months. While an agency is required to evaluate offerors' past performance reasonably and on the same basis, an agency has considerable discretion in determining, for example, what past performance information it will consider. See Advanced Envt'l Solutions, Inc., B-401654, Oct. 27, 2009, 2010 CPD para. 7 at 5; Done Right Bldg. Servs., Inc., B‑310568, Dec. 17, 2007, 2008 CPD para. 30 at 4. Here, the agency explains that the performance data regarding the CENTCOM Theater Express Tender Program prior to October 2008 was "unreliable," and as such, could not fairly be used to assess any offeror's performance under that program. Additionally, we note that there was nothing in the RFP that precluded the agency from examining the available past performance information for trends in performance; that the FAR expressly requires that in evaluating past performance information "general trends in contractor's performance shall be considered;" and that the 15-month limitation, with emphasis on the last 3 months, was used by the agency "to determine if there were performance trends." FAR sect. 15.305(a)(2)(i); Contracting Officer's Supp. Statement at 1.

In sum, the agency's determination to focus on the offerors' performance under the CENTCOM Theater Express Tender Program during the 15‑month period referenced above, with emphasis on the last 3 months of that 15‑month period, was reasonably based and consistent with the terms of the solicitation and the FAR. (World Airways, Inc., B-402674, June 25, 2010)  (pdf)


CIGNA also argues that the agency's evaluation of Highmark's proposal as "very good" with "low risk" under the past performance factor was unreasonable. Specifically, CIGNA points out that the contracting officer, in his award recommendation, specifically mentioned as "strengths" various aspects of one of Highmark's subcontractor's past performance in support of Highmark's "very good" with "low risk" ratings under the quality of service, cost control, and business relations subfactors to the past performance factor. AR, Tab 33, Contracting Officer's Award Recommendation, at 9-10. The protester argues that the consideration of this subcontractor's past performance in arriving at an overall rating of "very good" with "low risk" under the past performance factor, and each of these three subfactors, was erroneous. In this regard, while recognizing that the solicitation provided under the past performance factor that "[p]ast performance of significant and/or critical subcontractors will be considered to the extent warranted by the subcontractor's demonstrated involvement in the proposed effort," RFP at 152, the protester contends that this proposed subcontractor cannot reasonably be considered either "significant" or "critical" to the proposed effort, given the subcontractor's experience, the work for which the subcontract was proposed, and the fact that the proposed costs allocated to this subcontractor's efforts on the contract total only $[DELETED] or approximately [DELETED] percent of Highmark's total proposed cost of $255 million. Protester's Comments at 88-89; Protester's Supp. Comments at 44-45.

Our Office will examine an agency's evaluation of an offeror's past performance only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations, since determining the relative merits of an offeror's past performance is a matter within the contracting agency's discretion. Sabreliner Corp., B-290515.2 et al., Aug. 21, 2002, 2003 CPD para. 4 at 4.

In explaining the evaluation process, the agency's initial past performance evaluation report states that the agency "examined the subcontractor teaming arrangements for each offeror to ensure that relevant past performance information was being considered for each party in relation to the work proposed for each jurisdiction." AR, Tab 8, Initial Past Performance Evaluation Report, at 2. The report added that "not all subcontractors proposed were evaluated for past performance, only those the [agency] determined are being proposed to perform similar functions and major functions and/or a significant portion of the workload as it relates to the instant acquisition." Id. The report goes on to list, without further explanation, the offerors' subcontractors that the agency had "determined" were "performing similar and major functions and/or a significant portion of the workload." Id. at 3. Two of Highmark's subcontractors, including the one in question here, were included on this list. This report, as well as the final past performance evaluation report and source selection documentation, describes as "strengths" various aspects of Highmark's subcontractor's past performance. Id. at 37-43; AR, Tab 26, Final Past Performance Evaluation Report, at 41-42; Tab 33, Contracting Officer Award Recommendation, at 9-10.

In response to the protest, the agency first argues that CIGNA was not prejudiced by the agency's allegedly erroneous consideration of Highmark's subcontractor in its past performance evaluation. Specifically, the agency states here that it "identified numerous strengths and discriminators for [Highmark] under the Past Performance factor that do not involve [the subcontractor]," and "[t]hus, even without the strengths associated with [the subcontractor, the agency] reasonably concluded that [Highmark's] proposal was superior to [CIGNA's] under the Past Performance factor." Agency Supp. Report at 48. With regard to the issue as to whether it properly considered Highmark's subcontractor's record of past performance in evaluating Highmark's proposal under the past performance factor, the agency simply states that the HH&H services, on which Highmark's subcontractor was proposed to work, "represent a relatively small (3%), yet significant portion of the [Jurisdiction 15] workload," and that the agency "therefore had every reason to assure itself of [the subcontractor's] performance abilities." Id.

Based upon our review of the record, we cannot find reasonable the agency's determination that Highmark's subcontractor, whose total efforts on this contract account for [DELETED] percent of Highmark's total proposed costs, is a "significant" or "critical" subcontractor based upon the subcontractor's involvement in the proposed effort. As indicated above, the contemporaneous record of the evaluation provides only that the listed subcontractors, including Highmark's, were "performing similar and major functions and/or a significant portion of the workload," and fails to provide any analysis or explanation as to why Highmark's proposed subcontractor was considered either significant or critical. Additionally, in responding to this aspect of the protest, the agency notes only that it considers the services to be performed by Highmark's proposed subcontractor to be "significant" with no further explanation or analysis.  (CIGNA Government Services, LLC, B-401062.2; B-401062.3, May 6, 2009)  (pdf)


The protester asserts that the agency, in evaluating Bearskin's proposal under both the corporate/management experience and past performance evaluation factors, improperly credited Bearskin with the experience and past performance of WNT. The protester maintains that there was nothing in Bearskin's proposal to explain why WNT should have been considered a predecessor company, or why WNT's performance or experience should have been attributed to Bearskin. Supplemental Protest at 5. According to the protester, "there is nothing in the record at all that the companies are currently, or have ever been, related." Id. at 6.

The agency responds that it reasonably credited the past performance of WNT to the Bearskin proposal since the proposal stated that WNT was a predecessor company.

We have found that an agency may properly attribute the experience or past performance of a parent or affiliated company to an offeror where the firm's proposal demonstrates that resources of the parent or affiliate will affect the performance of the offeror. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD para. 149 at 5; 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 affiliate will have meaningful involvement in contract performance. Perini/Jones, Joint Venture. Furthermore, under Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii), agencies are instructed to take into account past performance information regarding the past performance of predecessor companies or key personnel who have relevant experience that will perform major or critical aspects of the requirement.

Here, the agency explains that WNT was the prime contractor providing information management support services to the Southwestern Power Administration under the 8(a) program, and that the follow-on contract was awarded to Bearskin when WNT graduated from the 8(a) program. When Bearskin took over the contract, the program manager remained the same, and the individual's resume reflects that he serves as a program manager for both WNT and Bearskin. See AR, Tab C.1, Bearskin's Initial Proposal, Program Manager Resume, at 1. Furthermore, all of the corporate office contacts under the WNT contract and the Bearskin contracts are the same, and both Bearskin and WNT are located at the same address. Contracting Officer's Statement at 11.

The agency further states that all of the publicly available information suggests that the two companies are related. For example, the Central Contractor Registration database shows that the principals for both companies are the same individuals. According to the agency's review of the companies' websites, both companies list the same contracts as past performance on their websites. Id. Our review of the companies' websites further confirms that that the websites are identical in layout and design, identify the same office address and telephone number, reflect performance of essentially the same services and products, and identify the same past performance contract references; the only significant difference in the websites are the company names and small business certifications.

Based on our review of the record, the evaluation team reasonably included the experience and past performance information of WNT in its assessment of Bearskin under the experience and past performance evaluation factors. The sharing of address and telephone number, program manager, and company principals, along with the nearly identical nature of their website content (including available services and past contracts performed) strongly suggests that the two companies are sufficiently related such that the resources of WNT are likely to affect the performance of Bearskin on this contract. Thus, we conclude that the past performance of WNT was appropriately considered in evaluating the Bearskin proposal. See Daylight Tree Serv. & Equipment, LLC, B-310808, Jan. 29, 2008, 2008 CPD para. 23 at 3.

Furthermore, the record shows that for the corporate/management experience evaluation factor, Bearskin listed five relevant contracts, only one of which was performed by WNT. The record also shows that Bearskin is currently performing the contract previously performed by WNT, in which it provides similar services to the Southwestern Power Administration, and Bearskin has received outstanding reviews for its performance. AR, Tab C.7, Bearskin Past Performance. Thus, the record shows that Bearskin, on its own, demonstrated that it had recent, relevant experience, and Bearskin provided evidence of its excellent past performance of similar requirements. Accordingly, Staff Tech has not shown that Bearskin's proposal ratings were overly influenced by the evaluators' consideration of the experience and past performance of WNT.  (Staff Tech, Inc., B-403035.2; B-403035.3, September 20, 2010)  (pdf)


BBGS asserts that the agency unreasonably disregarded the experience and past performance of the other Bilfinger entities. Protests at 10-11. BBGS asserts that, based on the agency's course of dealing with BBGS and the other Bilfinger entities, especially the negotiations with regard to the administrative agreement, agency personnel had "substantial and personal knowledge" of BBGS's plan to "effectively take over as the Bilfinger government contracting entity," and that it was "wholly unreasonable to act as if it was unaware of BBGS's status and role." Id. at 11. The protester asserts that this failure on the part of the agency resulted in a flawed experience/past performance evaluation and best value determination. Id. at 11-12.

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 Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at 4; see also Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii). Under this standard, the relevant consideration is whether the resources of the parent or affiliated company--its workforce, management, facilities or other resources--will be relied upon for contract performance, such that the parent or affiliate will have meaningful involvement in contract performance. Bering Straits Tech. Servs., LLC, B-401560.3, B-401560.4, Oct. 7, 2009, 2009 CPD para. 201 at 3 (agency reasonably found that proposal did not demonstrate meaningful involvement); Health Net Fed. Servs., LLC, B‑401652.3, B‑401652.5, Nov. 4, 2009, 2009 CPD para. 220 (record did not establish meaningful involvement).

The evaluation was reasonable. As discussed, the basis for BBGS's reliance on the experience/past performance of BBH and HSG was the administrative agreement referenced in the firm's proposal, under which those other entities would be incorporated into BBGS and BBGS would become responsible for performance of their contracts, as well as future Bilfinger contracts with the U.S. government. As noted, however, that agreement had not been signed at the time of the evaluation, and the agency reports that it "had not received any information to indicate that BBH, HSG, and BBSSI had been consumed or absorbed by BBGS at the time BBGS submitted their proposal" and that it "had no reason to believe that BBH, HSG, and BBSSI were not still separate legal corporate entities that continued to engage in U.S. Government contracting." AR at 8. Indeed, the agency points out that BBSSI recently had submitted proposals in its own name on certain Europe District solicitations, and had been awarded a contract. Id. at 8-9. The agency further asserts that, even as of the time of award, it had received neither any agreements assigning current government contracts from BBH, HSG, and BBSSI to BBGS, nor any documentation that BBGS had acquired BBH, HSG, or BBSSI's assets or personnel. Id. As discussed, absent evidence that the other Bilfinger entities had been or soon would be incorporated into BBGS, or that those entities' resources otherwise would be available for performance of the contract, the CO determined that there was an insufficient basis to attribute the entities' experience/past performance to BBGS. We find nothing unreasonable in this determination.

The protester claims that it "explicitly referenced in its proposal that the resources and personnel who performed its proposed projects would be performing on any resultant contract," Protests at 11, and asserts that the Army unreasonably ignored these affirmative statements in declining to attribute the other entities' experience/past performance to BBGS. Comments at 9-10. BBGS's proposals, however, are tentative, provisional, and indefinite with regard to "absorption" of the Bilfinger entities into BBGS, and the agency maintains that "BBGS did not submit anything as part of their proposals to indicate why it should be credited with the experience and past performance of two legally separate entities." AR at 14 (emphasis in original). We have reviewed the proposals and agree with the agency that, aside from BBGS's representations regarding the incorporation of the entities into BBGS, the proposals nowhere demonstrated that the resources of the other entities would be available to BBGS in performing the contract. Absent such information, the contracting officer reasonably concluded that the other entities' experience/past performance information was not attributable to BBGS.

The protester cites prior decisions in which we have recognized that, in certain limited circumstances, an agency evaluating an offeror's proposal has an obligation to consider past performance information outside the proposal when it is "too close at hand" to require offerors to shoulder the inequities that would spring from failure to consider the information. See, e.g., Keystone Sealift Servs, Inc., B-401526.3, Apr. 13, 2010, 2010 CPD para. 95; Protests at 10-11; Comments at 10-11. However, the question here is not whether the agency was required to consider information outside of the proposal, but whether the CO's judgment based on that information was reasonable; again, we have found that the CO's judgment was reasonable. (Bilfinger Berger Government Services GmbH, B-402944, August 19, 2010) (pdf)


Powersolv contends that FRA's [Federal Railroad Administration] evaluation of the firm's project manager is unreasonable. First, Powersolv contends that the RFP did not require that the project manager have a PMP [program management professional] certification, and disputes that its proposed project manager is not qualified, noting that this individual's resume demonstrates his involvement in all aspects of program management. Powersolv also disputes that its project manager would not devote adequate time to the contract. In addition, Powersolv complains that the agency's concerns regarding the project manager's experience were not raised during discussions.

The evaluation of an offeror's proposal is a matter within the agency's discretion. IPlus, Inc., B-298020, B-298020.2, June 5, 2006, 2006 CPD para. 90 at 7, 13. In reviewing a protest against an agency's evaluation of an offeror's proposal, our Office will not reevaluate the proposal but instead will examine the record to determine whether the agency's judgment was reasonable and consistent with the stated evaluation criteria and applicable procurement statutes and regulations. See Shumaker Trucking & Excavating Contractors, Inc., B-290732, Sept. 25, 2002, 2002 CPD para. 169 at 3.

In its response to the protest, the agency denies that it downgraded the protester's proposal because "FRA desired a non-executive level individual with technical expertise" or a program manager with a PMP certificate. AR at 2. Instead, the agency argues that its evaluators "viewed some risk from the fact that [the PM] was proposed at 'no cost', and that he lacked recent experience in or exposure to the current technical disciplines of the FRA's [RSIS]." Id. The agency does not contend that the RFP required that the proposed project manager must have a PMP certification.

The record, however, does not support FRA's contentions. As noted above, the agency's evaluation of Powersolv's initial proposal specifically questioned the ability of the firm's proposed project manager and noted that he did not have a PMP certification. See AR, Tab 11, SSEB Evaluation Matrix, at 1; see also id., Tab 12, Pre‑Negotiation Memorandum, at 10. Although the agency's evaluation of Powersolv's revised proposal does not specifically mention PMP certification, the CO in his statement in response to the protest notes: "The proposed Powersolv Project Manager (PM) was given an ACCEPTABLE rating. Neither the proposed PM nor Deputy PM appeared to be PMP certified." CO's Statement at 7. Also, the agency in assigning an outstanding rating for ActioNet's proposal under the experience factor specifically noted that the awardee's proposed project manager was PMP certified. AR, Tab 11, TEB Consensus Report, at 4; SSEB Evaluation Matrix, at 1. On this record, we think that the agency's assessment of a weakness was based, in part, upon the failure of Powersolv's project manager to have PMP certification, which reflects the application of an unstated evaluation criterion.

In addition, contrary to the agency's argument in response to the protest, the record shows that the agency was concerned with the proposed project manager's role as a corporate officer. In the evaluation of Powersolv's initial proposal, the TEB specifically identified the following concern regarding the project manager's duties:

It was not however clear what value proposing an Executive Vice President as the Project Manager (PM) brought to their offer. This in fact raised more questions and perceived risks in that individual's ability to perform the duties and responsibilities of the PM as described in the RFP.
AR, Tab 11, TEB Consensus Report, at 4. The SSEB and CO both expressed the same concern, noting: "While good, the proposed PM is a high level corporate official who has been an Executive VP since [deleted]. His ability to handle the RSIS PM responsibilities is questionable." AR, Tab 11, SSEB Evaluation Matrix, at 1; Tab 12, Pre-Negotiation Memorandum, at 10. In its evaluation of Powersolv's revised proposal, the SSEB concluded that Powersolv's reassurances that their proposed PM (their Exec VP) will be fully committed to the success of the RSIS did not change the original concerns of the SSEB regarding their decision not to staff this critical position with a more technical and 'hands on' manager.  AR, Tab 20(c), SSEB Final Consensus Report, at 2.

On this record, we conclude that the agency based its evaluation of Powersolv's proposed project manager, in part, on his role as a corporate officer. Moreover, the agency does not respond to the protester's argument that its revised proposal adequately explained how the project manager would be able to effectively manage his corporate duties and the half-time duties required by the RFP. See Protester's Comments at 13-17. Accordingly, we have no basis to find reasonable FRA's assignment of a weakness with respect to Powersolv's proposed project manager.

Moreover, the record shows that FRA did not conduct meaningful discussions with Powersolv with regard to the qualifications of Powersolv's proposed project manager. When an agency engages in discussions with an offeror, the discussions must be "meaningful," that is, sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision in a manner to materially enhance the offeror's potential for receiving the award. Federal Acquisition Regulation (FAR) sect. 15.306(d); Bank of Am., B-287608, B-287608.2, July 26, 2001, 2001 CPD para. 137 at 10-11. Specifically, an agency may not, through its questions or silence, lead an offeror into responding in a manner that fails to address the agency's actual concerns; may not misinform the offeror concerning a problem with its proposal; and may not misinform the offeror about the government's requirements. Velos, Inc.; OmniComm Sys., Inc.; PercipEnz Techs., Inc., B-400500 et al., Nov. 28, 2008, 2010 CPD para. 3 at 8.

Here, as discussed above, the agency raised two issues regarding the protester's project manager during discussions: the individual's ability to meet the required time commitment, in light of his role as a corporate officer, and a request to clarify the proposal to provide the project manager at no cost to the government. AR, Tab 14, Powersolv Discussions Questions, at 1-2. These discussions did not address the qualifications or experience of the project manager or whether he would be a "hands-on" manager. We conclude that the agency's discussions were not meaningful.

Finally, the record does not support the agency's argument in response to the protest that it assessed a performance risk in Powersolv's proposal arising from the fact that the project manager was proposed on a no-cost basis. Neither the TEB's nor the SSEB's evaluation of Powersolv's initial proposal notes a concern that the protester proposed its project manager on a no-cost basis. In this regard, the agency's discussions with Powersolv with respect to the proposal of this individual on a no-cost basis were limited to asking the protester whether the project manager would be provided at no cost under CLIN 004 and would remain at no cost in the event that he were replaced by a different individual. See AR, Tab 14, Powersolv Discussions Questions, at 1-2. Powersolv's revised proposal confirmed that the project manager would perform at no cost to the government. See AR, Tab 18, Powersolv Revised Proposal, at 2.

The only discussion of performance risk associated with the offer of Powersolv's project manager at no cost to the agency is found in the agency's response to the protest. See CO's Statement at 9; Supp. CO's Statement at 2; SSO Decl. at 1. Given the lack of documentation in the contemporaneous record supporting the agency's post-protest assertion in this regard, we do not think that the record supports the agency's argument that it viewed the no-cost proposal as a performance risk. Boeing Sikorsky Aircraft Support, supra. In sum, the record establishes that FRA's evaluation of Powersolv's proposed project manager was not reasonable.  (Powersolv, Inc., B-402534; B-402534.2, June 1, 2010) (pdf)


Brican protests that, contrary to the solicitation, the agency did not consider the experience of its subcontractor that would perform the specialized shielding for the radiology rooms. In this regard, Brican contends that the main difference between general clinic construction and the imaging center construction here is the shielding of the radiology rooms, which Brican asserts is specialized work that a general contractor would not itself perform. See Comments at 2.

It is a fundamental principle of federal procurement law that a contracting agency must treat all offerors equally and evaluate their proposals evenhandedly against the solicitation's requirements and evaluation criteria. CRAssociates, Inc., B‑282075.2, B‑282075.3, Mar. 15, 2000, 2000 CPD para. 63 at 5. In reviewing protests against allegedly improper evaluations, our Office examines the record to determine whether the agency's judgment was reasonable, in accord with the evaluation factors set forth in the RFP, and whether the agency treated offerors equally in its evaluation of their respective proposals and did not disparately evaluate proposals with respect to the same requirements. Marinette Marine Corp., B‑400697, et al., Jan. 12, 2009, 2009 CPD para. 16 at 11.

Here, the record shows that the VA did not reasonably evaluate Brican's proposal in accordance with the RFP's requirements and evaluation factors. As noted above, the SSEB and the SSA determined that Brican did not have any specialized imaging center construction experience. See, e.g., SSEB Report and Selection Decision, at 6, 8. In fact, the SSA specifically noted in his tradeoff analysis that Legion was the only offeror with specific imaging center construction experience. See id. at 8. Brican, however, proposed an experienced subcontractor to perform the specialized shielding of the radiology rooms. See Protester's Proposal, Vol. II, at 25. The record shows that this same subcontractor was identified in the awardee's proposal as the specialty subcontractor that the awardee had used in two imaging center construction projects for the VA, for which the agency credited the awardee's proposal. Awardee's Proposal, Vol. I, at 9, 65-66. Although the RFP specifically provided for consideration of the past performance/experience of major subcontractors, there is no evidence in the contemporaneous record that the agency considered the past performance/experience of Brican's shielding contractor. In this regard, VA has not addressed or rebutted Brican's arguments that the difference between general construction services and imaging center construction services is attributable to the construction and installation of radiology shielding, which is generally done by a specialty subcontractor.  (Brican Inc., B-402602, June 17, 2010)  (pdf)


CDSS first protests that it was "'unreasonable" for the agency to downgrade its proposal under the past performance factor based on Xtria's performance under the predecessor contract. In this regard, CDSS asserts that the agency had an insufficient factual basis to determine whether Xtria "'fulfilled its requirements under its subcontract with Dixon," and maintains that CDSS "'should have received a 10 [the highest possible score] for its past performance rating." CDSS Protest, Oct. 13, 2009, at 9-10; CDSS Supplemental Protest, Nov. 9, 2009, at 7.

The evaluation of past performance is a matter within the discretion of the contracting agency, which our Office will review in order to ensure that it was reasonable and consistent with the stated evaluation criteria. NLX Corp., B-288785, B-288785.2, Dec. 7, 2001, 2001 CPD para. 198 at 7. An agency's past performance evaluation may be based on a reasonable perception of inadequate prior performance, regardless of whether the contractor disputes the agency's interpretation of the underlying facts, Ready Transp., Inc., B-285283.3, B-285283.4, May 8, 2001, 2001 CPD para. 90 at 5, and the protester's mere disagreement with the agency's judgment is not sufficient to establish that the agency acted unreasonably. Birdwell Bros. Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD para.129 at 5.

Here, we think the agency's determination to downgrade CDSS's proposal due to the prior past performance of its proposed subcontractor, Xtria, was reasonable. As noted above, the solicitation required offerors to submit past performance information regarding proposed subcontractors and specifically provided that subcontractors' past performance would be considered in the evaluation. Further, as discussed above, CDSS's proposed subcontractor made a conscious and deliberate decision to withhold services under the prior contract to exert pressure on Dixon, the prime contractor responsible for delivering those services, to resolve an ongoing dispute between those two companies--while expressly acknowledging that its actions had an adverse impact on the agency. On this record, we find no basis to question the contracting officer's decision to downgrade CDSS under the past performance evaluation factor. CDSS's protest that the agency's past performance evaluation was unreasonable is wholly without merit.  (Dixon Group, Inc.; Command Decisions Systems and Solutions, Inc., B-402118; B-402118.2; B-402118.3; B-402118.4; B-402118.5, January 15, 2010)  (pdf)


Our Office examines an agency's evaluation of past performance to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations; however, the necessary determinations regarding the relative merits of offerors' proposals are primarily matters within the contracting agency's discretion. Kay & Assocs., Inc., B-291269, Dec. 11, 2002, 2003 CPD para. 12 at 4. In this regard, our Office will not question an agency's determinations absent evidence that those determinations are unreasonable or contrary to the stated evaluation criteria. Id. A protester's mere disagreement with the agency's judgment does not establish that an evaluation was unreasonable. UNICCO Gov't Servs., Inc., B-277658, Nov. 7, 1997, 97-2 CPD para. 134 at 7.

We first note that Dunamis did provide the requisite past performance references with its proposal. In this regard, Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii) directs agencies to take into account past performance information regarding predecessor companies, key personnel, and major subcontractors when such information is relevant to an acquisition. Thus, an agency properly can consider the relevant experience and past performance history of the individual joint venture partners of the prime contractor in evaluating the past performance of a joint venture, so long as doing so is not expressly prohibited by the RFP. MVM, Inc., B‑290726 et al., Sept. 23, 2002, 2002 CPD para. 167 at 4; Network Sec. Techs., Inc., B‑290741.2, Nov. 13, 2002, 2002 CPD para. 193 at 9. The RFP here did not prohibit considering the past performance of individual joint venture partners in evaluating an offeror's past performance; indeed, the RFP specifically encouraged offerors to provide such information and advised that consideration would be given to the relevant past performance of the joint venture partners. RFP sect. M at 3. Because at least three past performance references for the joint venture partners were provided in Dunamis's proposal and because it provided sufficient information regarding these referenced contracts on the forms provided in the RFP, Dunamis satisfied the RFP requirements.  (Advanced Environmental Solutions, Inc., B-401654, October 27, 2009)  (pdf)


On October 6, HHS requested dismissal of the protest on the grounds that Divakar’s claims were factually baseless. After our Office convened a conference call with the parties, and declined to dismiss the protest, counsel for HHS offered to provide to Divakar (with SKY’s agreement) a copy of the experience/past performance section of SKY’s proposal, and a copy of the corresponding page of HHS’s evaluation. With this information, HHS sought to persuade Divakar to withdraw its protest. Instead, Divakar filed a supplemental protest.

Divakar’s supplemental protest argued that it was improper for HHS to credit SKY with the experience and past performance of SKY’s key personnel at times when those individuals had been employed by other firms, or were assisted by other people, or when SKY was a subcontractor to another firm. Supplemental (Supp.) Protest at 2. Divakar also argued that SKY was not listed in the central contractor registry until 2009, and therefore could not claim experience before that time. Supp. Protest at 1, 3, 5. In addition, Divakar argued that SKY’s proposal failed to include a resume for an administrative assistant, that HHS had been motivated by bad faith in selecting SKY over Divakar, and that HHS had provided Divakar with a defective debriefing.[5] Supplemental (Supp.) Protest at 6-7.

On October 15, HHS filed materials that, in essence, constituted an agency report. On October 26, Divakar filed comments.

Divakar argues that SKY lacks experience and has no relevant past performance, because the firm’s references were for work performed by SKY’s key personnel, rather than by SKY itself as a business entity, or were for work performed by SKY as a subcontractor. Divakar argues that HHS therefore was required to find that SKY lacked relevant past performance, and was required to give SKY a neutral rating. Divakar Comments at 1. Divakar argues that if SKY had received a neutral rating for experience/past performance, the CO would have selected Divakar as the best value.

Where a solicitation calls for the evaluation of experience and past performance, we will examine the record to ensure that the evaluation was reasonable and consistent with the solicitation’s evaluation criteria and procurement statutes and regulations. MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 10. Nothing in the RFQ prohibited the agency from evaluating experience/past performance information where the vendor had been a subcontractor. See George G. Sharp, Inc., B‑401077, B-401077.2, Apr. 15, 2009, 2009 CPD para. 87 at 5 (agency properly considered experience gained as a subcontractor). Likewise, in evaluating a firm’s experience and past performance, it is proper for an agency to consider the experience of proposed key personnel. Id. Here, SKY’s quotation showed that the firm’s proposed key personnel had performed in key roles on contracts submitted as experience/past performance references. Therefore the evaluation record supports the evaluators’ judgments that the experience of SKY’s key personnel would be brought to bear in the firm’s work for SAMHSA, and that SKY’s experience/past performance was highly relevant to the work under the RFQ. In short, the evaluation of SKY’s experience/past performance was reasonable in our view.

In summary, the contemporaneous evaluation record provides a reasonable basis for HHS to consider SKY’s experience/past performance to be uniformly superior. The RFQ specified that experience/past performance was significantly more important than cost, and therefore the CO reasonably justified the selection of SKY’s higher-rated, higher-cost proposal over Divakar’s.  (Divakar Technologies, Inc., B-402026, December 2, 2009) (pdf)


Health Net contends that TMA’s evaluation of AGHP’s past performance was fundamentally flawed and that it was not entitled to a “High Confidence” past performance rating. Among other things, Health Net argues that it was unreasonable for TMA to consider contracts performed by entities other than AGHP in evaluating AGHP’s past performance. Health Net also maintains that TMA failed to meaningfully consider the limited size of the prior contracts, as reflected by the relatively small beneficiary populations covered by the contracts, when it assigned AGHP the highest past performance rating. We sustain the protest on these grounds.

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. The MIL Corp., B-297508, B-297508.2, Jan. 26, 2006, 2006 CPD para. 34 at 10; Hanley Indus., Inc., B-295318, Feb. 2, 2005, 2005 CPD para. 20 at 4. The critical question is whether the evaluation was conducted fairly, reasonably, and in accordance with the solicitation’s evaluation scheme. Clean Harbors Envtl. Servs., Inc., B-296176.2, Dec. 9, 2005, 2005 CPD para. 222 at 3.

In its proposal, AGHP indicated that it had not had any active business operations in the past 3 years. AR, Tab 40, at 699. As a consequence, AGHP did not have any relevant past performance of its own under the terms of the RFP, which defined relevant past performance as limited to contracts “concluded within the last three years.” RFP at 103. This lack of relevant experience was acknowledged by the PAG. AT, Tab 10, PAG Final Report for AGHP, at 2.

Lacking relevant past performance of its own, AGHP submitted past performance information for its “team.” According to AGHP, this team “brings together AGHP, a wholly owned subsidiary of Aetna Life Insurance Company; its parent, Aetna Inc.; and their affiliates (collectively referred to as Aetna) for expertise and assistance,” as well as its first-tier subcontractor WPS (which was to be primarily responsible for claims processing). AR, Tab 10, PAG Final Report for AGHP, at 1-2. The PAG and the SSEB indicate that they based their evaluation of AGHP’s past performance on the activities of its parent, its affiliates, and WPS. AR, Tab 8, SSEB Report, at 26; AR, Tab 10, PAG Final Report for AGHP, at 1-2.

An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm’s proposal demonstrates that the resources of the parent or affiliate will affect the performance of the offeror. 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. Ecompex, Inc., B-292865.4 et al., June 18, 2004, 2004 CPD para. 149 at 5.

TMA maintains that it reasonably attributed to AGHP the past performance information of its parent corporation and affiliated companies. In this regard, the PAG concluded that “AGHP’s parent organization is sufficiently involved in the daily operations of the offeror that the performance record of the parent reflects the performance of the organization.” AR, Tab 10, PAG Final Report for AGHP, at 9. In reaching this conclusion, the PAG noted:

Aetna states AGHP will be subject to the overall leadership of the Aetna Inc. board of directors. Aetna states AGHP will be operated as a distinct legal entity under the direction of its own board of directors with substantial independent operational flexibility but, as a wholly owned subsidiary, Aetna’s best practices, innovations, information technology capabilities and thought leadership are available to AGHP. Many AGHP staff members will be drawn from other Aetna operations and AGHP and a variety of Aetna corporate staff functions will support the AGHP operations, including [Deleted].

AR, Tab 10, PAG Final Report for AGHP, at 1.

The PAG’s findings in this regard mirror the representations contained in AGHP’s proposal. AR, Tab 40, AGHP Past Performance Proposal, at 688, 700, 706.

The record reflects that for each of the five contracts identified by AGHP for the purpose of evaluating its past performance, AGHP identifies the contract as having been performed generically by “Aetna.” AR, Tab 40, AGHP Past Performance Proposal, at 721, 727, 731, 735, and 741. Elsewhere in its proposal, however, AGHP explains that its ultimate parent is currently Aetna, Inc., and the term “Aetna” is the brand name used for one or more of the Aetna group of subsidiary companies, which include Aetna Life Insurance Company, as well as the following HMO entities that are licensed or otherwise qualified to provide health care coverage in the states that comprise the TRICARE North Region: Aetna Health Inc. (CT), Aetna Health Inc. (ME), Aetna Health Inc. (NY), Aetna Health Inc. (NJ), Aetna Health Inc. (PA, IN, KY, MA & OH), Aetna Health Inc. (DE), Aetna Health Inc. (MD, D.C. & VA), Aetna Health of the Carolinas Inc. (NC & SC), Aetna Health of Illinois Inc. (IL & IN), and Aetna Health Inc. (MI). AR, Tab 40, AGHP Past Performance Proposal, at 707.

The flaw with TMA’s analysis originates in the complex network of corporate entities which comprise the “Aetna brand,” AGHP’s general references to “Aetna’s” role in performing the requirements, and the general references to “Aetna” past performance information. Given the repeated use of the general reference to “Aetna” throughout AGHP’s proposal, the PAG did not know the specific roles, if any, the various Aetna entities would have in performance of the T-3 effort. Nor did the PAG have any insight regarding which specific Aetna entities had performed the contracts referenced in AGHP’s past performance proposal; therefore, the PAG could not know what role, if any, the entities that had performed the prior contracts would have in performance of AGHP’s T-3 contract. Given this lack of information, TMA’s reliance on past performance by “Aetna” in its assessment of AGHP effectively attributed to AGHP the past performance of other Aetna corporate entities based on the mere fact of their corporate affiliation. Absent some more definitive indications of what entities performed what contracts and what roles they would have in performing the T-3 effort, there was no basis for TMA to consider, let alone give credit in the evaluation for, the “generic” Aetna past performance submitted with its proposal.[8] See Universal Building Maintenance, Inc., B-282456, July 15, 1999, 99-2 CPD para. 32 (sustaining protest where agency unreasonably based evaluation on past performance of awardee’s corporate affiliate and parent company).  (Health Net Federal Services, LLC, B-401652.3; B-401652.5, November 4, 2009)  (pdf)


AAJV asserts that Chugach's parent and sister companies are not teamed with or otherwise contractually committed to perform the awarded contract, and that it therefore was improper for the agency to consider those firms' past performance and experience in evaluating Chugach's proposal.

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; Federal Acquisition Regulation 15.305(a)(2)(iii). We find that this was the case here.

Chugach's proposal stated that its parent company's (Chugach Alaska Company (CAC)) and several of its sister companies' resources--including workforce, management, key personnel, facilities and performance strategies--would be provided and relied upon for contract performance. Chugach Proposal at B-1. For example, the proposal stated that Chugach would transition key personnel from the current COOM contract in Guam performed by a sister company; had reach-back capability to tap more than 6,000 CAC and affiliate employees worldwide; and would rely on the expertise of various subject matter experts, including two named personnel--an individual who had been the project manager on an affiliate's base operating systems contract on Wake Island as well as the COOM project manager for the incumbent Guam contract, and Chugach's own president, who had experience with Chugach and two of its affiliates on 21 prior contracts. Id. at 2, C-3, C-4. In addition, CAC would provide general and administrative support, including accounting, human resources, legal and risk, compliance and regulatory information technology, project transition, and business development services. Id. at C-1. CAC representatives would also assist with interviewing and hiring employees; meeting security requirements; overseeing safety, quality control, and accounting setup; purchasing or leasing equipment; and bringing utilities on line. Id. The fact that these affiliates and personnel are not contractually bound to perform these services, does not render the agency's consideration of their experience and past performance unreasonable. The RFP did not require any such commitment and, based on Chugach's representations, we think the agency reasonably concluded that Chugach's proposal demonstrated that the resources of the parent and affiliated companies would affect Chugach's performance. Perini/Jones, Joint Venture, supra. Thus, there was nothing improper in the agency's consideration of their respective experience and past performance.

AAJV asserts that, even if it were otherwise permissible for the agency to consider Chugach's parent's and affiliates' experience and past performance, the RFP here effectively precluded their consideration. See Doyon-American Mech., JV; NAJV, LLC, B‑310003, B-310003.2, Nov. 15, 2007, 2008 CPD para. 50 at 4 (reliance on a third party's experience and past performance is contingent upon the absence of any solicitation provision precluding such consideration).

AAJV's assertion is without merit. In Doyon-American, the RFP clearly restricted past performance and experience information to "[o]nly those projects for which the Offeror or a primary teaming partner was the Prime Contractor." Id., 2008 CPD para. 50 at 2-3. In contrast, the RFP here did not provide such direct guidance; instead, with regard to the past performance factor, the RFP provided that the "term 'offeror' typically refers to a single corporation submitting a proposal as a prime contractor," and that, in evaluating past performance and experience, the government's "evaluation will generally focus on the entities submitting the proposal." RFP sect. L, at 37. While offerors "typically" were single corporations and the government would "generally" focus on those entities, nothing in the RFP prohibited an offeror from submitting--or the agency from evaluating--information relating to corporate parents and affiliates.  (AMI-ACEPEX, Joint Venture, B-401560, September 30, 2009) (pdf)


Initially, Ahtna argued that the Army improperly downgraded its proposal for its lack of experience, even though it had proposed one of the incumbent CCAD motor pool operators as a subcontractor. After receiving the agency report, Ahtna refined its position to argue that while neither firm had relevant prime contract experience operating a government motor pool--and both had relied on subcontractors with motor pool experience--Ahtna was downgraded for its lack of prime contract experience, but Goldbelt was not. Thus, the protester contends that the agency treated the offerors unequally by crediting Goldbelt with the experience of its subcontractor, but not similarly crediting Ahtna.

(sections deleted)

With respect to Goldbelt's evaluation, the panel chair explained that the three evaluated strengths attributed to "[b]oth [Goldbelt] and ICI," were intended to reflect the strengths of the two firms together, as a team. Tr. at 41-42. When cross-examined on whether each of the three strengths was equally valid if applied to Goldbelt alone (exclusive of ICI), he acknowledged that Goldbelt's experience did not include operation of a motor pool as a prime contractor. Tr. at 42. Nonetheless, the evaluation panel chair maintained that Goldbelt's Dahlgren contract for supply services operations was "remarkably similar" to the operation of the CCAD motor pool. Tr. at 61. He explained that this conclusion was based on Goldbelt's representations, in its proposal, that it was required to dispatch and maintain its own vehicles, and that the Dahlgren contract also involved licensing forklift operators. Tr. at 23-24. Although Goldbelt's proposal did not describe how many vehicles or forklift operators were managed at Dahlgren, the chair of the evaluation panel acknowledged that the evaluators had not sought more information from either Goldbelt or the Navy--the agency for whom Goldbelt performed the Dahlgren contract. Tr. at 63, 68-69, 88.

With respect to Ahtna's evaluation, the panel chair testified that he had viewed Ahtna separately from its subcontractor, All Star. Tr. at 50. When asked to characterize the meaning of the weakness assessed to Ahtna, he testified that Ahtna's lack of experience in operating a motor pool was "extremely significant" to the evaluation because "[i]f the prime contractor doesn't have that experience, that is a significant risk." Tr. at 93.

During the hearing we also heard the testimony of the CO, who explained that the difference in Goldbelt's and Ahtna's evaluation under the motor pool experience subfactor was a significant factor in her award decision. Tr. at 148. She also testified that she concurred in the evaluators' judgment that Goldbelt's experience on its Dahlgren contract was relevant to the CCAD scope of work. Tr. at 149‑50. In addition, the CO testified that all three of Goldbelt's past performance contracts--including those for maintenance and repair of research laboratory equipment, and for shipping and related services--were "very relevant" to the services here. Tr. at 151-52. In contrast, she testified that, in her view, Ahtna's four prior contracts were "not very relevant." Tr. at 152-54, 160-61.

In assessing the evaluation here, we note first that the Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii) directs agencies to take into account past performance information regarding subcontractors that will perform major or critical aspects of the requirement. On the other hand, the significance of, and the weight to be assigned to, a subcontractor's past performance is a matter of contracting agency discretion. See Loral Sys. Co., B-270755, Apr. 17, 1996, 96-1 CPD para. 241 at 5; see also Strategic Res., Inc., B-287398, B-287398.2, June 18, 2001, 2001 CPD para. 131 at 5-6. The weight to be assigned a prime contractor's past performance--or lack thereof--is also a matter of contracting agency discretion. Alpha Data Corp., B-291423, Dec. 20, 2002, 2003 CPD para. 18 at 4-5.

Nevertheless, while an agency may reasonably emphasize one firm's lack of a particular type of relevant experience, it cannot then ignore another firm's similar lack of experience. E.g., U.S. Prop. Mgmt. Serv. Corp., B‑278727, Mar. 6, 1998, 98‑1 CPD para. 88 at 6 (protest sustained where agency emphasized protester's lack of corporate experience, but disregarded similar lack of experience for the awardee by substituting experience of the awardee's key personnel).

In our view, the record here demonstrates that the Army did not treat these offerors equally under the motor pool experience subfactor within the past performance evaluation factor. Rather, the agency combined the experience of Goldbelt and its subcontractor, ICI, for purposes of that evaluation, and, in certain respects, assessed strengths for both companies that are based on the subcontractor's (ICI's) experience.[5] In contrast, when the Army evaluated Ahtna, the agency focused separately on Ahtna's lack of motor pool experience, without similarly considering its subcontractor, All Star (the incumbent subcontractor for the CCAD motor pool), even though the record shows that the evaluators viewed the experience of ICI and All Star as essentially equal. Tr. at 21-22, 30, 46-48. There is no reasonable basis for this disparate treatment in the record.

To the extent that the agency's evaluation was based on its conclusion that Goldbelt's Dahlgren contract was "remarkably similar," Tr. at 61, to the operation of the CCAD motor pool, we find that conclusion lacked significant support in the record. Instead, the record indicates that Goldbelt's Dahlgren contract involved--according to the description in Goldbelt's proposal--providing 8.5 of 16.5 full time equivalent workers, primarily for managing supply operations, not for providing motor pool services to the Navy. AR, Tab E, Goldbelt Proposal, vol. II, at 16. There appears to be a significant difference in the apparent scope of the effort at Dahlgren and the work here, which, as described above, involves over 390 vehicles, and numerous other activities, including training and licensing 2,000 to 3,000 vehicle operators. RFP at 24; Tr. at 23, 88.  (Ahtna Support and Training Services, LLC, B-400947.2, May 15, 2009)  (pdf)


The SSA also considered that PlanetSpace’s subcontractors were responsible for most of the technical aspects of the proposal and that PlanetSpace itself had no relevant experience managing a contract with this level of complexity in a fixed-price environment, while OSC’s proposal was assigned a significant strength because of its utilization of existing processes and tools to manage fixed-price spacecraft development, operations and repetitive production contracts, OSC’s subcontracting team had a much smaller role in contract performance, and OSC had extensive in-house expertise in specific areas of the CRS requirements. The SSA concluded that, accordingly, he “had much higher confidence” in OSC’s ability to provide resupply services on a fixed-price basis, id., and that OSC’s proposal “was superior due to the serious Management risks inherent in the PlanetSpace proposal.” SSD at 17. Indeed, while recognizing PlanetSpace’s lower price, the SSA stated that he “could not conduct [a] ‘typical’ trade-off analysis since I believed there was a low likelihood PlanetSpace could successfully perform the contract.” Id. The SSA concluded that SpaceX’s and OSC’s proposals represented the best value to the government.

(Sections deleted)

TEAMING APPROACH

Subcontractor Performance

PlanetSpace asserts that the evaluation of its teaming approach was unreasonable and/or otherwise improper. As an initial matter, the protester contends that the consideration given to past performance in the SSD was inconsistent with the RFP, which provided that offerors without a record of relevant past performance or for which information on past performance is not available “will not be evaluated favorably or unfavorably on past performance.” RFP amend. 3, sect. VII. PlanetSpace asserts that, notwithstanding this provision, the agency evaluated its proposal unfavorably based on a finding that it lacked relevant past performance.

The record does not support PlanetSpace’s assertion. As discussed above, in considering the SEB’s assessment of significant strengths based on the past performance of PlanetSpace’s subcontractors/team members, the SSA simply disagreed with the SEB’s finding of a significant strength. Again, the SSA concluded that the finding was “offset by PlanetSpace’s lack of experience in development, production and operation of large, complex space systems,” and that the subcontractors’ past performance should not be “discriminators for selection when almost all of the technical expertise appeared to reside at the subcontractor level.” SSD at 11-12. Thus, the SSA determined only that the protester’s record of past performance should not be considered as a discriminator; he did not downgrade the proposal overall under the past performance factor.  (PlanetSpace, Inc., B-401016; B-401016.2, April 22, 2009)  (pdf)


Next, with respect to the evaluation of the awardee’s experience and past performance, Aegis complains that the Corps misevaluated GSG-IS by allowing it to substitute the experience and past performance of GSG-IS’s subcontractors, because GSG-IS itself is a recently-formed entity and therefore had neither past performance nor experience. Aegis also argues that GSG‑IS should not have received credit for the experience and past performance of [DELETED] in analyzing intelligence and running a national operations center.[8] Aegis argues that since [DELETED] cannot obtain a facility security clearance, it cannot have any role in performing intelligence or national operations center functions, and thus its experience and past performance in those areas should have been excluded as irrelevant.

The Corps argues that where, as here, an offeror’s performance relies significantly on a team member or subcontractor, an agency may consider that firm’s experience and past performance. Since GSG-IS’s team members, including [DELETED], will perform significant shares of the contract, the Corps argues that it was proper to consider the experience and past performance references of those firms. The Corps disputes the foundation of Aegis’s argument--that an offeror’s experience and past performance are only relevant if the offeror itself is performing the corresponding services under the pending contract.

Our Office affords agencies discretion in the evaluation of past performance. Family Entm’t Servs., Inc., B-291997.4, June 10, 2004, 2004 CPD para. 128 at 5. The record here reflects that the Corps considered the experience and past performance cited by GSG-IS to show that it was familiar with providing similar services in Afghanistan, and that it had shown an excellent record of performance. Although Aegis argues that the experience of [DELETED] cannot be considered relevant since that firm lacks a security clearance, we believe the Corps had discretion to rely on that experience and past performance in evaluating GSG-IS, since [DELETED] is providing material services under the contract. In particular, GSG-IS described [DELETED]’s role as providing “security, logistics, and operations support.” GSG-IS Proposal, Mar. 18, 2008, vol. I at 1. In our view the agency reasonably rated GSG-IS excellent under the experience and past performance factors.  (Aegis Defence Services Limited, B-400093.4; B-400093.5, October 16, 2008) (pdf)


Licenses and permits

The RFP’s performance work statement (PWS) required the successful contractor to pick-up, transport, and treat and/or dispose of medical waste in accordance with all applicable county, Florida state, and federal (Environmental Protection Agency and Department of Transportation) laws, policies and guidelines, as well as VA infectious medical waste requirements. PWS sect. D.1.2. The contractor was also required to “maintain all necessary medical waste permits and licenses for the disposal and treatment of such waste.” Id.

AES asserts that NEIE is not technically capable of performing the contract because it does not meet the RFP’s license requirements. Specifically, it maintains that NEIE is not a Florida corporation and lacks a Florida Department of Health permit to provide biomedical waste transportation and disposal services. In AES’s view, NEIE cannot “maintain” the necessary licenses and permits because it must rely on its subcontractor, Healthcare Waste Solutions of Florida, LLC (HWS), to handle the waste.

This argument is without merit. The RFP did not require any specific license or permit as a precondition to receiving award but, rather, only required that the contractor maintain all necessary permits and licenses and that it perform the work in accordance with applicable laws. Whether an offeror, prospectively, was capable of meeting this performance requirement was a matter of the firm’s responsibility. See SourceLink Ohio, LLC, B-299258, Mar. 12, 2007, 2007 CPD para. 50 at 4. The RFP provided for offerors to submit copies of their permits and licenses with their proposals, presumably for purposes of enabling the agency to determine offerors’ responsibility in this area. NEIE responded to the requirement by submitting copies of HWS’s Florida biomedical waste licenses and permits. There was nothing improper or unreasonable in the agency’s accepting and considering this information, since there is nothing improper in an offeror’s meeting licensing requirements through a subcontractor. See The Ensign-Bickford Co., B-274904.4, Feb. 12, 1997, 97‑1 CPD para. 69 at 4 (agency’s allowing offeror to rely on licensed subcontractor and its plan for waste management tasks was reasonable). We conclude that the agency reasonably relied on HWS’s information in finding that NEIE was a responsible offeror.

Experience

AES asserts that NEIE began business in August 2007, just 2 months before the closing date. In the protester’s view, NEIE lacks relevant experience and it was unreasonable for the agency to rely on the experience of NEIE’s “sister” company, NEIE, Inc. Protest at 2.

AES’s assertions are without merit. The RFP required offerors to provide a description of their applicable experience in the area of biomedical waste services, but did not specify any amount of experience or restrict the source of the experience. RFP para. 5.1.2. An agency properly may consider the experience of a predecessor firm or of the corporation’s principal officers that was obtained prior to its incorporation date. Trailboss Enters., Inc., B‑297742, Mar. 20, 2006, 2006 CPD para. 64 at 4; R.J. Crowley, Inc., B-229559, Mar. 2, 1988, 88-1 CPD para. 220 at 6. NEIE Medical Waste Services, LLC was formed when its predecessor (“sister”) company, NEIE, Inc., divided its business lines and transferred all of its medical waste contracts to the new company. AR at 4. As relevant to the RFP here, the newly formed company shares the same contract management staff, processes, experience, and support as its predecessor. Id. In evaluating NEIE’s technical capability (including experience) as excellent, the agency reviewed information about NEIE, Inc., including its successful performance of three current, similarly scoped VA contracts for removal and disposal of medical waste. NEIE Proposal at 5; AR, Tab 13. Since the agency could properly consider the experience of NEIE’s predecessor, there was nothing unreasonable in the agency’s evaluation.  (Advant-EDGE Solutions, Inc., B-400367.2, November 12, 2008) (pdf)


We agree with the protester that the contracting officer’s explanation of his evaluation, in response to the protest, does not entirely track the contemporaneous record. For example, the protester is correct that there is nothing in the contemporaneous record supporting the contracting officer’s claim that he did not consider Ahntech-San Diego’s PTR contract in evaluating Ahntech-Korea’s experience because Ahntech-San Diego is not a Korean company. In fact, as discussed above, the record shows that the contracting officer did consider Ahntech‑San Diego’s PTR contract; he concluded that the proposal information concerning this contract was too “general in nature” to allow the contracting officer to find that Ahntech‑Korea met the 3-year experience requirement. However, notwithstanding the agency’s unsupported statements in response to the protest, it is clear from the contemporaneous record that it reasonably found that Ahntech‑Korea did not meet the 3-year experience requirement.

(See Ahntech-Korea Company, Ltd., B-400145.2, August 18, 2008 sections for discussion of "3-year experience")

Regarding Ahntech-San Diego’s PTR contract, an agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror only where the firm’s proposal demonstrates that the resources of the parent or affiliated company will affect the performance of the offeror. Perini/Jones Joint Venture, B‑285906, Nov. 1, 2000, 2000 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, such that the parent or affiliate will have meaningful involvement in contract performance. Id. at 5.

Although the record shows that the agency did consider the PTR contract in the evaluation (finding that the proposal information concerning this contract was too “general in nature”), since Ahntech-San Diego was not an offeror, it would be appropriate for the agency to impute that entity’s experience to Ahntech-Korea only if Ahntech-Korea’s proposal committed Ahntech-San Diego’s resources to performance of the contract. We find that the proposal did not commit Ahntech-San Diego’s resources. There is nothing in Ahntech-Korea’s proposal that purports to offer the workforce, management, facilities or other resources of Ahntech-San Diego for performance of the contract. The protester points to proposal language that it believes was sufficient to commit Ahntech-San Diego’s resources. However, the cited language consists of only general statements regarding guidance, instruction, and support. For example, the proposal states that “[s]ince Ahntech‑Korea’s inception, the parent company has provided support mentoring, and training to develop the subsidiary’s management structure to one that focuses heavily on the needs of the customer and how the company can satisfy them,” Ahntech-Korea Proposal, at 1, and that “[c]orporate experience comes from the dual experiences of Ahntech-Korea, combined with those of the parent company, Ahntech-San Diego. In the parent role, Ahntech-San Diego provides guidance, instruction, and support to each contract performed by Ahntech-Korea and as such Ahntech-Korea benefits heavily from the experiences gained by the parent company over years of performance on Government contracts.” Id. at 3. While these statements perhaps are sufficient to indicate that there is a business relationship between the two entities, there is nothing in the language--or elsewhere in the proposal--that actually commits any of Ahntech‑San Diego’s resources to performance of the contract. This being the case, the contracting officer could not properly consider Ahntech-San Diego’s experience in its evaluation of Ahntech-Korea.

Since the agency reasonably determined that the KTRAC contract did not satisfy the 3-year experience requirement, and since the agency could not properly consider Ahntech-San Diego’s experience in the evaluation, it is clear that the protester did not meet the 3-year experience requirement. It follows that the contracting officer’s conclusion that Ahntech‑Korea’s proposal was technically unacceptable was unobjectionable. The protester’s other arguments--regarding, for example, the absence of any RFP requirement that warranted rejecting the protester’s proposal on the basis that the protester is not a Korean company--are irrelevant, since they have no bearing on the propriety of the agency’s rejection of the proposal as unacceptable under the experience requirement.  (Ahntech-Korea Company, Ltd., B-400145.2, August 18, 2008) (pdf)


LM proposed to design and fabricate the BAMS Mariner, a modified version of its proposed subcontractor General Atomics Aeronautical Systems’ (GA-ASI) Predator B aircraft (flown by the U. S. Air Force), with such modifications as a 22-foot extension of the wingspan, [REDACTED]. The BAMS Mariner, with a gross takeoff weight of 12,528 pounds (approximately 2,000 pounds greater than the existing model), was to be powered by a single engine with a turboprop propeller. Based upon an evaluated ingress speed of [REDACTED] knots and an egress speed of [REDACTED] knots, NAVAIR assessed that for a station approximately 2,000 miles from its operating base, each BAMS Mariner would be on station [REDACTED] hours, while the evaluated ETOS of a 4‑aircraft orbit was 84.6 percent. NG proposed to design and fabricate the BAMS Global Hawk (RQ‑4N), a modified version of its RQ-4B Global Hawk B (flown by the U.S. Air Force), with such modifications as [REDACTED]. The BAMS Global Hawk, with a gross takeoff weight of 32,250 pounds, was to be powered by a single turbofan (jet) engine. Based upon an evaluated ingress speed of [REDACTED] knots and an egress speed of [REDACTED] knots, each BAMS Global Hawk would be on station [REDACTED] hours, while the evaluated ETOS of the proposed 3‑aircraft orbit was 96.2 percent. Boeing proposed to design an unmanned version of the [REDACTED]. The Boeing [REDACTED], with a gross takeoff weight of [REDACTED] pounds, was to be powered by [REDACTED]. Based upon an evaluated ingress speed of [REDACTED] knots and an egress speed of [REDACTED] knots, each Boeing [REDACTED] would be on station [REDACTED] hours, while the evaluated ETOS of the proposed [REDACTED]-aircraft orbit was 92.8 percent.

(sections deleted)

LM principally challenges NAVAIR’s evaluation of its own and NG’s past performance. In this regard, the RFP provided that the government would

evaluate the offeror’s, and (if applicable), its principal subcontractors’ and critical team members’ demonstrated past performance in delivering quality products and in meeting technical, cost and schedule requirements on similar programs for SDD, Production, and Operations and Support. The currency and relevance of the information, source of the information, context of the data, and general trends in contractor’s performance will be considered. Problems not addressed by the offeror will be considered to still exist. However, consideration for discounting problems may be given when those problems are addressed through demonstrated systemic improvement. RFP sect. M.II.B.

In furtherance of the past performance evaluation, offerors were required to identify contracts “whose performance is within five years from the RFP release and contain efforts similar to those efforts, e.g., tasks, contract type, location, contract dollar value, etc., required by this solicitation.” RFP sect. L.3.1. The information provided “should be related to similar programs in the same division, or cost centers in which the Offeror proposes to perform this effort,” and correspond to the descriptions of the offeror’s experience under the experience factor. Id. The experience section of the RFP, in turn, required that the experience “be relative to proposed roles and responsibilities of the Offeror/Subcontractor in this solicitation,” and identified several tasks considered relevant, including “[p]erforming SDD tasks such as design, integration, fabrication, and test of a system similar in scope to the BAMS UAS,” “[p]erforming logistics tasks for major military weapons systems similar in scope to the BAMS UAS,” and “[p]roduction and manufacturing of a system similar in scope to the BAMS UAS.” RFP sect. L.4.0.

For each relevant contract, offerors were required to describe performance in meeting technical and quality requirements, meeting schedule requirements, controlling cost, and managing the contracted effort (e.g., program management, cooperation with customer, subcontract management). RFP sect. L.3.4.2. In addition, and of particular importance here, offerors were required, “[f]or each past performance problem identified, [to] describe the status of the systemic improvement efforts and, where applicable, demonstrate the impact that the systemic improvement effort had on resolving the problem such that it would not reoccur.” RFP sect. L.3.1. Further, in addition to “[i]dentify[ing] those systemic improvement actions taken to resolve past problems,” offerors were required to “[p]rovide the records of such results and indicate where they are documented, preferably in Government record systems. Describe the techniques, elements, and tools used to correct problems on the contract and, if applicable, how these techniques, elements, and tools will be used during this program.” RFP sect. L.3.4.3. Finally, offerors were cautioned that “[t]he Government does not assume the duty to search for data to cure the problems it finds in the information provided by the Offeror. The burden of providing thorough and complete past performance information remains with the Offeror.” RFP sect. L.3.1.

(section deleted)

LM asserts that NAVAIR’s evaluation of LM’s, GA-ASI’s, and NG’s past performance was inconsistent with the solicitation and otherwise unreasonable in numerous respects.

(section deleted)

Past Performance of LM Team (emphasis added)

Although the SSEB noted that inadequate staffing and a shortfall in technical skills had adversely impacted LM’s ability to execute a somewhat relevant (the Po Sheng) SDD contract to upgrade the command control system for Taiwanese F-16 fighter aircraft, the panel generally acknowledged that LM had demonstrated “high quality technical performance” on five of six relevant contracts. SSEB at 52. In contrast, however, GA-ASI’s contract performance was a matter of great concern to the agency. Specifically, while recognizing that GA-ASI had demonstrated a willingness and ability to respond on short notice to evolving Global War on Terror (GWOT) warfighter requirements, the SSEB found that GA-ASI’s performance demonstrated: inadequate staffing, resulting in performance problems on SDD contracts for the MQ‑9 Reaper (a second-generation, Predator B model) and the MQ‑1C Extended Range/Multipurpose (ER/MP) UAS (a second-generation Predator model); unfavorable schedule performance on four of seven relevant GA-ASI contracts, including very relevant contracts for the MQ-9 Reaper, UAS ground control stations, MQ-1C ER/MP, I-GNAT Extended Range UAS (a version of the Predator with some differences for the Army), and MQ-1 baseline Predator; poor performance in meeting technical quality requirements on three of seven GA-ASI contracts, including contracts for the MQ-9 Reaper, MQ-1C ER/MP, and I‑GNAT Extended Range UAS; and workload exceeded the firm’s capacity on five of seven GA-ASI contracts, including contracts for the MQ-9 Reaper, UAS ground control stations, MQ-1C ER/MP, I-GNAT Extended Range UAS, and MQ‑1/MQ-9 maintenance support. In summary, the SSEB found the overall performance of GA-ASI on its very relevant contracts for the MQ-9 Reaper (most delivery orders), UAS ground control stations, MQ-1C ER/MP, and I-GNAT Extended Range UAS to be marginal. SSEB at 36-38, 52‑62.

Based upon the above past performance problems, the SSEB determined that there was substantial doubt that LM would successfully perform the required effort, and that an overall high risk rating therefore was warranted. According to the SSEB:

The Lockheed Martin team delivers a high quality, technical product and both Lockheed Martin and GA-ASI are motivated to meet the warfighter’s requirements. Lockheed Martin, as the prime contractor however, will be substantially challenged to ensure that GA-ASI will remain on schedule. The proposal includes a prominent role for GA‑ASI including aircraft design, UA manufacture, flight test, logistics, training support, communications subsystem and MCS aircraft control segment which represents approximately 50% of the proposed effort. There is, therefore, significant risk to the BAMS UAS program if GA‑ASI’s future performance trend reflects identified past performance difficulties in managing increasing workload, a possibility which the [Past Performance Evaluation Team] assesses as likely to occur.

Lockheed Martin and GA-ASI have recent past performance histories of being unable to resolve staffing issues resulting in adverse cost and schedule performance. Furthermore, there are documented concerns regarding the amount of work that GA‑ASI has taken on and the slow pace of implementing processes and process improvements that increased workloads and responsibilities require. Systemic improvement initiatives have been identified or are in work in several areas of concern; however, these efforts are not yet demonstrated to determine their effectiveness at lowering risk.

SSEB at 62.

LM disputes both the agency’s evaluation of its performance under several of the individual contracts and the determination that there was little demonstrated systemic improvement.

(1) MQ-9 Reaper/GCS

GA-ASI’s ongoing Air Force contract No. F33657-02-G-4035 included very relevant (according to both LM and NAVAIR) delivery orders for interim contract capability, SDD and production of the MQ-9 Reaper (again, a second-generation Predator B model), and for the pre-production and production of UAS ground control stations (GCS). NAVAIR received three Contractor Performance Assessment Reports (CPAR) for these contract efforts, the most recent completed on April 23, 2007 for the period from January 1 to December 31, 2006, with earlier CPARS for the periods October 1, 2004 to December 31, 2005 and September 18, 2002 to September 30, 2004. (NAVAIR had unsuccessfully requested updated 2007 performance information on contract No. 4035. NAVAIR E-mail to Air Force Point of Contact as suggested by Air Force Program Manager (as listed in LM Past Performance Proposal at 3-6), Nov. 28, 2007; Tr. at 2183-84.)

LM challenges the overall marginal rating for GA-ASI’s performance under this contract on the basis that this overall rating was inconsistent with the category ratings in the latest 2006 Air Force CPAR of very good for technical, satisfactory for management, and marginal for schedule and cost control. However, while recognizing that GA-ASI “does an excellent job responding to quick reaction and rapidly evolving warfighter requirements in support of the Global War on Terror,” the 2006 CPAR nevertheless expressed significant reservations as to GA-ASI’s performance in several areas:

Systems engineering was rated satisfactory overall but remains an area of concern for the program. The company has not been able to develop a sufficient systems engineering staff to keep pace with the numerous other contracted efforts.

While satisfactory overall, [software engineering] is an area of concern for the program. Although the company continues to increase its software engineering staff, there continues to be limited software engineering resources to complete all contracted work. . . . The contractor needs to continue to increase their engineering staff in order to meet contracted commitments in parallel.

Several projects under this [Basic Ordering Agreement] have suffered from schedule delays, to include the MQ-9 ICC and MQ-9 SDD efforts. The schedule variances for these efforts are -20% and -44.9% respectively as of Dec. 06. While [GA-ASI] has committed to expanding the workforce, the contractor has insufficient resources to execute the contracted work on schedule in several key areas. The resulting schedule delays directly impact the fielding of combat capability.

CPAR, Contract No. 4035, 2006 Period. The 2004/2005 CPAR for contract No. 4035 included similar criticisms of GA-ASI’s performance, as well as marginal schedule and cost control ratings. Given the above continuing staffing and resources shortfalls, which resulted in “schedule delays directly impact[ing] the fielding of combat capability,” CPAR, Contract No. 4035, 2006 Period, and the repeated marginal schedule and cost control ratings in the most recent CPARs, we find no basis to question NAVAIR’s evaluation of GA-ASI’s overall performance under contract No. 4035.

LM further challenges NAVAIR’s assessment that systemic improvement by GA-ASI on contract No. 4035 (as well as under other contracts) had not been demonstrated. In this regard, LM generally acknowledged in its December 4, 2007 discussions response with respect to a number of GA-ASI contracts (including the MQ-9 Reaper, MQ-1C ER/MP, and I-GNAT Extended Range UAS), that “the fundamental cause for GA-ASI Past Performance issues was availability of trained staff to meet the demand for our products and services”; that GA-ASI’s workload had exceeded its capacity; that there had been “management task saturation”; and that there was a “valid CPAR comment” regarding (overly) “[c]entralized management structure.” LM Evaluation Notice (EN) Response, Dec. 4, 2007, LM-PP-003, -008, -009, -010, 011. However, LM maintained then, id., and asserts in its protest, that GA-ASI has undertaken such systemic improvements as increasing engineering and trained staff, hiring mid-level and senior program managers, and restructuring the decision-making process. According to the protester, the evaluation failed to acknowledge these systemic improvements.

The agency’s evaluation in this area was reasonable. Although LM has suggested that the RFP did not require that there be documented results of any systemic improvements, and that merely hiring additional staff should be accepted as effective systemic improvement, as noted above, the RFP in fact required the offeror to “identify those systemic improvement actions taken to resolve past problems, . . . demonstrate the extent to which it will benefit the instant contract,” and “[p]rovide the records of such results and indicate where they are documented, preferably in Government record systems.” RFP L.3.4.3. Accordingly, in ascertaining whether there had been systemic improvement in correcting prior performance deficiencies and problems, the agency properly looked to see whether the record “demonstrate[d] the impact of the systemic improvement,” including whether there were any results of the claimed systemic improvement measures “in a record or documentation to show that action resulted in a tangible improvement to that program,” such that there was “independent verification [of] tangible improvement.” Tr. at 778-80.

Given the solicitation requirement that any improvements in contract performance be documented, the agency reasonably determined that overall systemic improvement by GA-ASI on contract No. 4035 had not been shown. In this regard, as noted above, notwithstanding the agency’s November 2007 request to the Air Force for updated contract performance information, an updated CPAR or other updated past information had not been furnished by the Air Force. Further, while LM furnished its own updated Earned Value Management System (EVMS) data on contract No. 4035 in a December 6, 2007 discussions response, that data did not clearly establish that overall demonstrated systemic improvement on the contract had occurred. LM reported that the cumulative Schedule Performance Index (SPI) (ratio of work performed to the initial planned schedule, with an SPI of less than 1.0 indicating that work is not being completed as planned and the program may be behind schedule if the incomplete work is on the critical path) on the three ground control system delivery orders as of October 2007 was only 76.6 percent, 88.8 percent, and 91.9 percent, all below the 95‑percent level at which performance began to be a matter of some concern to the agency. LM also reported that the cumulative Cost Performance Index (CPI) (ratio of work performed to actual costs for work performed, with a CPI of less than 1.0 being unfavorable because the work is being performed less efficiently than planned) on one of the orders likewise was below the 95-percent level (93.1 percent). LM Response to EN LM-PP-015, Dec. 6, 2007; Tr. at 1084-92; GAO Cost Assessment Guide, GAO-07-1134SP, at 226.[1] As for the four MQ-9 Reaper delivery orders, LM reported that one had been completed in December 2006 at a cumulative CPI of 92.4 percent, one of the remaining three orders was below the 95‑percent CPI level in October 2007 (at 91.3 percent), and the third order had been rebaselined in October 2007 (and the index thus was reset to 1.0). LM also reported that one of the orders was below the 95‑percent level for SPI in October 2007 (at 83.7 percent), while a second had been rebaselined in October 2007 after having an SPI of 55.2 percent in June 2007. We conclude that the agency reasonably determined that there was no documentation of systemic improvement on contract No. 4035.

(2) MQ-1C ER/MP

Both NAVAIR and LM considered ongoing Army contract No. W58RGZ-05-C-0069, for the MQ-1C Extended Range/Multipurpose (ER/MP) UAS (a second-generation Predator model using the basic structure of the Predator aircraft with the Predator B avionics suite), to be very relevant to LM’s proposed BAMS Predator-based Mariner UAS. LM Past Performance Proposal at 3-9, 3-51. NAVAIR received for this contract: four past performance questionnaire (PPQ) responses, including December 10, 2007 and April 2007 responses from the Army Procuring Contracting Officer (PCO), an April 2007 response from the Army Product Manager, and a February 26, 2007 response from the Defense Contract Management Agency (DCMA) Administrative Contracting Officer (ACO); and a number of LM discussion responses that referred to the contract (as well as a number of other contracts).

LM challenges the overall marginal rating for GA-ASI’s performance under this contract, primarily on the basis that this rating was inconsistent with the input from the DCMA ACO and LM’s discussion responses.

We find that the agency reasonably rated GA-ASI’s performance under contract No. 0069 only marginal. In this regard, the most recent detailed information received by NAVAIR for this contract was the Army PCO’s December 10, 2007 PPQ response in which he rated GA-ASI’s performance as marginal for technical/quality performance, schedule, cost performance, and program management. According to the Army PCO, while the agency was “confident the company can and will deliver a quality aircraft system,” nevertheless, “as the program continues, and [GA‑ASI] takes on additional contracts, we are concerned about [GA-ASI’s] ability to successfully manage and deliver products to all customers on time and within cost.” Army PCO PPQ Response, Contract No. 0069, Dec. 10, 2007. The Army PCO specifically reported the following performance problems on the MQ-1C ER/MP contract:

[GA-ASI has not met contracted . . . delivery schedules.

[GA-ASI] continues to struggle as the Systems Integrator.

[GA-ASI] has resisted hiring adequate engineering and technical staff to address all of the tasks they are currently contracted to perform.

The common theme within the delivery/schedule problems appears to relate back to the acceptance of contractual commitments which are physically beyond production capacity.

A major contributor is [that GA-ASI’s] senior management continues to obligate the company without fully reviewing and understanding the current workload and commitments.

Management task saturation coupled with [GA-ASI’s] highly centralized management structure both contribute towards the delays with the integration testing and coordination efforts . . . .

The engineering staff appears to be technically [competent], but in most cases are not empowered at the appropriate levels to make the necessary decisions to push the task forward in a timely manner to maintain schedule.

[GA-ASI] has made limited corrective actions and usually not without Government PMO insistence.

Army PCO PPQ Response, Contract No. 0069, Dec. 10, 2007. Furthermore, the April 2007 PPQs completed for Contract No. 0069 by the Army PCO and the Army Product Manager appeared to indicate that GA-ASI’s performance problems had been continuing for some time, with references to GA-ASI “continu[ing] to struggle in identifying and executing system engineering and system integration tasks required to facilitate final integration of the subsystems,” and having “struggled in the area of staffing at adequate levels to properly resource the program schedule.” Army PCO PPQ Response, Contract No. 0069, Apr. 2007; Army Product Manager PPQ Response Contract No. 0069, Apr. 2007.

LM asserts that the overall marginal rating for GA-ASI’s performance on contract No. 0069, for the MQ-1C ER/MP, did not reasonably account for the February 26, 2007 PPQ response completed by the DCMA which reported that GA-ASI’s technical/quality and schedule performance was exceptional, its cost performance was very good, and its management performance was very good to exceptional.

We find LM’s position unpersuasive. As an initial matter, we agree with the agency that the DCMA ACO furnished little detail in support of his very favorable performance ratings, and that the detail that was furnished appears in some measure inconsistent with the high ratings. In this regard, for example, while the DCMA ACO rated GA-ASI’s cost performance as very good and its schedule performance as exceptional, the DCMA ACO reported cumulative, unfavorable EVMS ratings of 0.84 for CPI and 0.91 for SPI as of January 2007. Although the DCMA ACO stated that government-directed changes were the cause of schedule and cost issues, he also acknowledged that $18 million of a predicted $37 million cost overrun was believed to be the result of “cost growth within the contract scope,” as distinct from “scope growth,” and he referred to the fact that “[c]orrective actions are on-going,” including continued hiring by GA-ASI, thus seemingly implying that there was some contractor responsibility for performance problems. Tr. at 1784-93. In any case, the DCMA ACO’s response was furnished in February 2007, while the more detailed responses by the Army PCO and Army Product Manager represented more recent assessments based on the contract performance as of April and December 2007. We note in this regard that the PPQs completed in April 2007 by the Army PCO and Army Product Manager both rated GA-ASI’s performance as marginal to satisfactory for technical/quality and schedule performance, and satisfactory for cost and management performance, thus suggesting both that GA-ASI’s performance had deteriorated since the DCMA ACO’s assessment in February and continued to deteriorate up to the time of the marginal performance reported by the Army PCO in December 2007. Army PCO PPQ Response, Contract No. 0069, Apr. 2007; Army Product Manager PPQ Response, Contract No. 0069, Apr. 2007. Moreover, to the extent that the differences in assessment of GA-ASI’s performance represented a difference of opinion, as distinct from a mere change over time in the quality of performance, we consider it significant that it was the views of the Army PCO and Army Product Manager, rather than those of the DCMA ACO, that were broadly consistent with the reports in the Air Force CPARs on GA-ASI’s performance on the MQ-9 Reaper/GCS delivery orders, that is, the reports of continuing GA-ASI staffing and resources shortfalls resulting in schedule delays. In summary, based on the recent, detailed information concerning GA-ASI’s performance problems on contract No. 0069, which information was consistent with reports of staffing and resource shortfalls resulting in schedule delays on other contracts, NAVAIR reasonably rated GA-ASI’s performance on this contract as no better than marginal.

LM asserts that, in any case, NAVAIR failed to account for systemic improvement by GA-ASI, such as increased staffing. As noted above, however, the RFP required a showing of documented improvements in contract performance as a result of any claimed systemic improvement measures. RFP sect. L.3.4.3. While GA-ASI has apparently continued to increase its workforce, again, an increase in workforce by itself, without a documented improvement in contract performance, did not meet the solicitation standard for showing systemic improvement. Here, not only did the PPQ responses seem to suggest deteriorating performance on contract No. 0069 through December 2007, but, in addition, recent EVMS data furnished by LM during discussions was not favorable. In this regard, in its December 6, 2007 discussion response to EN LM‑PP-015, LM indicated that the MQ-1C contract had been rebaselined after performance resulted in increasingly unfavorable EVMS numbers at the beginning of 2007‑‑with a decline in the CPI from 83.8 percent in January to 80.3 percent in April and a similar SPI decline from 90.9 percent to 87.1 percent‑‑but then, after the rebaselining was reflected in the EVMS data in September 2007 with fresh 100-percent CPI and SPI ratings, the numbers again began to decline, falling to 98.4 percent and 98.2 percent, respectively, in October 2007. LM Response to EN LM‑PP-015, Dec. 6, 2007. In these circumstances, we find that NAVAIR reasonably concluded that the information known to the agency did not support a finding of systemic improvement on contract No. 0069.

(3) I-GNAT Extended Range UAS

Both NAVAIR and LM considered Army contract No. DAAH01-03-C-0124, ending in December 2007, for the I-GNAT Extended Range (ER) UAS (an Army version of the Predator), to be very relevant to LM’s proposed BAMS Predator-based Mariner UAS. LM Past Performance Proposal at 3-9, 3-70. NAVAIR received three PPQ responses for this contract: a May 31, 2007 response from the Army Deputy Product Director, Unmanned Aerial Systems Program Management Office; an April 18, 2007 response from the Army PCO (who was also the Program Manager (PM) for this program (according to LM, LM Past Performance Proposal at 3-7), and the PCO for the MQ-1C ER/MP contract); and an April 2007 “coordinated” response from the DCMA ACO (who also was the ACO for the MQ-1C ER/MP contract) and the DCMA Program Integrator, which was subsequently updated by the DCMA ACO on May 24, 2007. In addition, NAVAIR received several LM discussion responses that referred to the contract (among a number of other contracts).

LM challenges the overall marginal rating for GA-ASI’s performance under this contract, primarily on the basis that it fails to account for the DCMA input. In this regard, the record reflects what appears to be an irreconcilable difference between the Army and DCMA evaluations of GA-ASI’s performance. On the one hand, the Army Deputy Product Manager and the Army PCO/PM agreed on marginal ratings for technical/quality, schedule, cost and management performance based on concerns that GA‑ASI had “consistently failed to meet contractual delivery dates for the spares and Ground Data Terminals and [was] beginning to show moderate slippage on delivery dates for Air Vehicles and Ground Control Stations”; had demonstrated resistance to hiring adequate personnel; had overly centralized management structure that contributed to program delays; had difficulty in managing its subcontractors; and ultimately was “agreeing to contractual commitments which are beyond its production capacity.” PPQ Response, Contract No. 0124, May 31, 2007, Army Deputy Product Director; PPQ Response, Contract No. 0124, Apr. 18, 2007, Army PCO/PM. On the other hand, the coordinated response from the DCMA ACO and DCMA Program Integrator offered the summary conclusion that there had been exceptional technical/quality, schedule, cost and management performance, with “generally” on-time performance or, as of May 2007, “on schedule” aircraft deliveries and “[n]o major slippage on the production schedule.” PPQ Response, Contract No. 0124, Apr. 2007, DCMA ACO; E-mail from NAVAIR to DCMA ACO, May 24, 2008.

We find that NAVAIR’s evaluation of GA-ASI’s performance on contract No. 0124 was reasonable. Confronted with materially differing ratings from the Army and DCMA representatives as of May 2007, the agency unsuccessfully sought updates from both entities on November 28, 2007, E-mail to Army Deputy Product Manager, Army PCO/PM, and DCMA ACO, Nov. 28, 2007, and also raised the negative past performance information from the Army with LM in a series of ENs in October 2007. Of particular significance in this latter regard were LM’s October 12 responses to EN LM-PP-009 and EN LM-PP-11, in which LM did not specifically refute the reports that GA-ASI had failed to meet a number of contractual delivery dates, but essentially maintained that it was simply “being responsive to the customer’s aggressive requests” and that any performance difficulties were beyond its control. LM Response to EN LM-PP-009, Oct. 12, 2007. Given that the record before NAVAIR included negative performance appraisals from responsible officials of the Army, that is, the customer agency; the Army evaluations were consistent with those on several other Army and Air Force Predator-related contracts; the Army evaluations were more detailed than the general praise from the DCMA ACO; the DCMA ACO’s use of such language as “generally” on-time or “[n]o major slippage” suggests that there were some schedule slippages, which would appear to be inconsistent with the DCMA ACO’s exceptional ratings; and the fact that, when questioned by NAVAIR in this regard, LM did not refute the reports that GA-ASI had failed to meet a number of the contractual delivery dates, we find that NAVAIR reasonably rated GA-ASI’s performance on this contract as marginal.

In summary, we find that LM’s challenges to the evaluation of its team’s past performance provide no basis for questioning the agency’s determination that the LM team‑‑in particular, GA-ASI‑‑had a recent past performance history of being unable to resolve staffing and resource issues, which resulted in adverse cost and schedule performance. We further find no basis for questioning the agency’s determination that, notwithstanding such systemic improvement measures as hiring additional staff, LM did not establish documented improvements in contract performance as a result of the systemic improvement measures; these efforts therefore did not furnish a basis for reducing the risk associated with the LM team’s unfavorable past performance.  (Lockheed Martin MS2 Tactical Systems, B-400135; B-400135.2, August 8, 2008) (pdf)


While McGoldrick contends that the VA unreasonably considered SPD’s subcontractor’s experience, it is well-established that in evaluating the past performance of a new business, an agency may consider the experience of the firm’s proposed subcontractors, unless it is prohibited from doing so by the terms of the solicitation, since such experience could be reasonably predictive of the offeror’s performance under the contract. See Cleveland Telecomms. Corp., B-257294, Sept. 19, 1994, 94‑2 CPD para. 105; Commercial Bldg. Serv., Inc., B‑237865.2, B-237865.3, May 16, 1990, 90-1 CPD para. 473 at 4. To the extent the protester contends that the agency failed to confirm the subcontractor’s role in performance of the work and whether that firm’s experience is relevant to the RFP’s requirements, the agency reports, and our review of the record confirms, that the awardee’s major subcontractor is an experienced construction firm with relevant and recent successful performance of substantially similar renovation work at another VA medical facility and will have substantial responsibility for the performance of the work here. Under these circumstances, the agency reasonably considered the subcontractor’s experience in evaluating the awardee’s past performance.  (McGoldrick Construction Services Corporation, B-310340.3; B-310340.4, May 16, 2008) (pdf)


Within the qualifications factor, the solicitation established the following subfactors, listed in descending order of importance: construction experience, past performance, design experience, and execution plan.  With regard to the most important evaluation subfactor, construction experience, the solicitation provided that proposals would be evaluated “based on projects . . . similar in nature, scope, and complexity to the project types identified in this solicitation,” and provided that the agency’s evaluation would be based on the offerors’ submission of no more than three past projects for each type of experience required. RFP at 20, 1888. The solicitation further directed as follows:

Only those projects for which the Offeror or a primary teaming partner was the Prime Contractor should be submitted. The projects selected should clearly demonstrate the construction capabilities of the Offeror on projects that are similar in scope and magnitude to the work required in this RFP.
RFP at 19.

On or before the April 13, 2007 closing date, proposals were submitted by six firms qualified to compete for the 8(a) set-aside contracts, including AIS, BDBS, CGS, Doyon, and NAJV. Thereafter, the proposals were evaluated by the agency. There is no dispute that, in responding to the solicitation requirement to submit prior projects reflecting the required experience, the awardees submitted projects that had been performed by the parent corporations and/or other subsidiaries of the parent corporations, and that the agency relied on performance of those projects in performing its evaluation. See Agency Report, Sept. 11, 2007, at 2-6. Based on the agency’s evaluation, including its consideration of the prior projects performed by the parent/affiliate corporations, each of the awardees’ proposals was rated [deleted] with regard to qualifications; in contrast, each of the protester’s proposals was rated [deleted]. Contracting Officer’s Statement, Sept. 11, 2007, at 6. Each of the awardees’ proposed prices was higher than each of the protesters’ proposed prices. Id. On July 27, the agency selected AIS, BDBS, and CGS for award. These protests followed.

DISCUSSION

Doyon and NAJV each protest that, pursuant to the provisions of this solicitation, it was improper for the agency to consider the experience of the awardees’ parents/affiliates in making the source selection decision. We agree. It is well-settled that an agency may consider the experience or past performance of an offeror’s parent or affiliated company under certain circumstances. See, e.g., Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD para. 68 at 4. However, our Office has consistently recognized that reliance on a third party’s experience, even if otherwise permissible, is contingent upon the absence of any solicitation provision precluding such consideration. See, e.g., Hot Shot Express, Inc., B-290482, Aug. 2, 2002, 2002 CPD para. 139 at 3; Physician Corp. of Am., B-270698 et al., Apr. 10, 1996, 96-1 CPD para. 198 at 13; Tutor-Saliba Corp, Perini Corp., Buckley & Co., Inc. and O & G Indus. Inc., A Joint Venture, B-255756, Mar. 29, 1994, 94-1 CPD para. 223 at 5; Fluor Daniel, Inc., B‑262051, B-262051.2, Nov. 21, 1995, 95‑2 CPD para. 241 at 12. Here, as noted above, the solicitation provided that the agency’s evaluation would be based on the offerors’ submission of no more than three projects for each type of experience required; that the projects submitted should demonstrate the capabilities of the offeror; and that only projects for which the offeror or a primary teaming partner was the prime contractor should be submitted. With regard to the identity of the offerors, none of the parent/affiliate corporations on which the agency relied for its assessment of the awardees’ experience would appear to qualify as “offerors” for this 8(a) set-aside procurement. Further, while each of the awardees’ proposals identified various subcontractors or teaming partners that would perform under the contract, the parent/affiliate corporations were not identified as such. Nonetheless, the record shows that the awardees submitted prior projects performed by parent/affiliate corporations other than the 8(a) offerors themselves, and that the agency relied on those projects in evaluating the awardee’s experience; both actions were inconsistent with the provisions of this solicitation. (Doyon-American Mechanical, JV; NAJV, LLC, B-310003; B-310003.2, November 15, 2007) (pdf)


Two members of the evaluation team recognized Daylight’s operations manager as the president of Associated Arborists, Inc., and noted that Daylight’s address and telephone number were the same as that listed for Associated Arborists on prior Forest Service contracts. Agency Report (AR), Memorandum of Law, at 5-6. Consequently, the evaluation team assumed that Daylight and Associated Arborists were successor and predecessor companies, and rated Daylight’s past performance based on their personal experience with Associated Arborists. CO Statement at 1. Daylight received a neutral rating in the past performance evaluation factor based on instances of poor performance by Associated Arborists, but received a satisfactory rating overall, indicating that it adequately met the requirements of the evaluation factors. AR, Tab 3, CO’s Decision Letter, at 1, 2.  The Forest Service awarded the contract to Woolery Timber Management, and Daylight filed an agency-level protest. AR, Tab 3, Daylight Protest, Sept. 27, 2007, at 1. In response to the protest, the Forest Service contacted some of the references listed in Daylight’s proposal. AR, Tab 1, Memorandum of Law, at 4. Two of the references stated that they were unfamiliar with the work of Daylight, but recognized the name of Daylight’s operations manager in connection with Associated Arborists and provided past performance information with regard to Associated Arborists. Id. at 6. Subsequently, the Forest Service denied Daylight’s protest. AR, Tab 3, CO’s Decision Letter, at 4. 

Daylight filed a protest challenging its past performance evaluation with this office, arguing only that the evaluation was flawed because it and Associated Arborists are not the same company. Protest at 1. The Forest Service argues that, by listing references in its proposal that pertain to contracts performed by Associated Arborists, Daylight itself apparently considered the past performance of Associated Arborists relevant to the performance of Daylight, and therefore the Forest Service reasonably considered Associated Arborists’ performance. AR, Tab 1, Memorandum of Law, at 6.  In our view, the evaluation team reasonably included the past performance information of Associated Arborists in its assessment of Daylight’s past performance. The use of the same address and telephone number for both companies, combined with the same person representing the companies, strongly suggest that the two companies are, if not predecessor and successor companies, then at least close affiliates, and therefore, the past performance of Associated Arborists could appropriately be considered in evaluating Daylight’s proposal. As proof that Daylight and Associated Arborists are not the same company, Daylight merely asserts that it has been awarded contracts by the Forest Service since 2005. However, it has provided no explanation as to how the two companies shared the same address and telephone number while remaining separate entities.  Moreover, the Federal Acquisition Regulation (FAR) directs agencies to take into account past performance information of predecessor companies, key personnel who have relevant experience or subcontractors when such information is relevant to an acquisition. FAR sect. 15.305(a)(2)(iii). Daylight’s operations manager had also been president of Associated Arborists. Therefore, the experience of Associated Arborists under his leadership is relevant to the performance of Daylight. See, e.g., United Coatings, B-291978.2, July 7, 2003, 2003 CPD para. 146 at 6-7 (past performance of a new company based on the experience key individuals gained through prior employment with another, affiliated company is relevant). Finally, the fact, undisputed by Daylight, that it included contacts for work performed by Associated Arborists in its references reinforces the conclusion that consideration of Associated Arborists’ past performance in evaluating Daylight’s proposal was appropriate.  To the extent that Daylight argues that the Forest Service improperly waited until after Daylight filed an agency-level protest before contacting its references, relying instead on the personal experiences of the evaluation team with regard to the performance of Associated Arborists, we find that the agency’s actions were not improper. With regard to the evaluation team relying on its own knowledge, we have held that an evaluator’s personal knowledge of an offeror may be properly considered in a past performance evaluation. Omega World Travel, Inc., B-271262, July 25, 1996, 96-2 CPD para. 44 at 4. Here, the evaluation team provided documentation from prior contracts with Associated Arborists that support the personal knowledge. In light of our conclusion that it was reasonable to attribute Associated Arborists’ past performance to Daylight, the Forest Service properly relied on the personal experiences of the evaluation team with Associated Arborists. With regard to the Forest Service contacting Daylights references after the agency-level protest was filed, we do not find it improper, and note that those Daylight-provided references confirmed Daylight’s affiliation with Associated Arborists.  (Daylight Tree Service & Equipment, LLC, B-310808, January 29, 2008) (pdf)


Contrary to the protester’s position, the RFP required more than written evidence of an agreement to enter into a subcontract; the RFP language quoted above clearly provided that any subcontracting agreements on which an offeror relied to establish the required experience had to be “final” at the time of proposal submission. The letter from the consultant provided by SeBS failed to furnish any detail whatsoever regarding the services to be delivered, stating only that the consultant would provide “professional services” to SeBS in support of the contract “after discussion and mutual agreement on a defined set of services to be delivered” by the consultant. Similarly, the letter left open the price terms of any agreement, stating that the consultant’s “rates and fees will be negotiated once the contract has been awarded.” Further, as noted above, the version of the letter furnished by the protester to the agency did not contain a signature by an SeBS representative; thus, there was no evidence that the two parties had in fact entered into an agreement. Given the general nature of the letter and its lack of specificity regarding basic terms, we think that the agency reasonably concluded that SeBS failed to demonstrate that it had a final subcontracting agreement in place to establish the required NGD experience that SeBS itself was missing, as required by the RFP. (Strategic e-Business Solutions, Inc., B-310210, November 8, 2007) (pdf)


Synergetics’ assertion that its quotation should have been found significantly superior to Vistronix’s is not supported by the record. The RFQ provided that under the past performance factor, evaluation of both a vendor’s technical experience and technical accomplishment would be based on consideration of all available and relevant facts and circumstances concerning projects that were the same as or similar to the work described in the SOW. RFQ sect. 24.2. In evaluating Synergetics’s quotation, the TEB noted that the firm was a current incumbent subcontractor with NRCS, with extensive working knowledge of agency programs, requirements, and relevant computing environments, and with a record of success. Agency Report (AR), Tab 11, at 00354. In evaluating Vistronix’s past performance, the TEB noted that the Vistronix team had been a USDA prime contractor since 1999, with some large dollar value contracts; had experience in core NRCS technologies; had proposed key personnel and technical experts with significant technical knowledge and experience; and had received excellence awards from other federal and state agencies in similar work. AR, Tab 10, at 00346. Thus, although Synergetics’s quotation received “additional consideration” for its incumbent past performance, the TEB also found that Vistronix’s past performance was “strong” based on these considerations. TEB Report at 00569. (Synergetics, Inc., B-299904, September 14, 2007) (pdf)


The protester argues that the agency should not have considered it a weakness that only two of the contracts that it submitted were for the joint venture itself (as opposed to the large business partner). DMSJV acknowledges that our Office has held that in evaluating past performance, an agency may appropriately consider the experience of the individual members of a joint venture and, at the same time, consider the lack of experience of the joint venture, see, e.g., Transventures Int’l, Inc., B-292788, Nov. 4, 2003, 2003 CPD para. 195 at 7; ITT Federal Servs. Int’l Corp., B‑283307, B-283307.2, Nov. 3, 1999, 99-2 CPD para. 76 at 14, but urges us to reconsider these decisions. We see no basis for departing from our precedent. Since it is the joint venture that will be performing the work here, we see no reason that the agency could not properly have considered the extent of its experience in its evaluation. (Data Management Services Joint Venture, B-299702; B-299702.2, July 24, 2007) (pdf)


In this regard, an agency’s past performance evaluation may be based on a reasonable perception of inadequate prior performance, regardless of whether the contractor disputes the agency’s interpretation of the underlying facts, Ready Transp., Inc., B-285283.3, B-285283.4, May 8, 2001, 2001 CPD para. 90 at 5, and the protester’s mere disagreement with the agency’s judgment is not sufficient to establish that the agency acted unreasonably. Birdwell Bros. Painting & Refinishing, B-285035, July 5, 2000, 2000 CPD para. 129 at 5. Here, our review of the record establishes that the agency’s evaluation of Womack’s past performance was reasonable and consistent with the RFP’s evaluation terms. As an initial matter, Womack argues that in evaluating its past performance, the Air Force unreasonably failed to consider other positive indications of its past performance. However, the information was not considered because it was included only in Womack’s protest, not in Womack’s proposal. In any event, much of the information provided by Womack in its protest was not eligible for consideration since it either was beyond the 3-year window of consideration or not relevant; further, in some instances, the information reflects “marginal” ratings for Womack’s performance and, thus, actually supports the agency’s rating. CO Statement at 10‑12.

Womack also challenges the validity of the underlying adverse past performance information which led to its rating of “little confidence”; Womack essentially denies the accuracy of the allegations. However, with respect to the information concerning A-1 Service’s performance of the Robins AFB warehouse addition contract, Womack did not dispute the accuracy of the information when the Air Force raised the issues with Womack during discussions. Rather, Womack simply noted that A-1 Service was not a member of its proposed team, thereby suggesting that the information was not relevant to the agency’s evaluation of its proposal. Upon further investigation, however, the Air Force determined that A-1 Service’s performance should be attributed to Womack given the close affiliation and the overlapping key personnel between A-1 Service, Womack, and its teaming partner, A-1 Mechanical/Electrical. Womack has not disputed the reasonableness of the agency’s determination in this regard; in fact, the firm corroborates the agency’s conclusions regarding affiliation and relationship of the companies in its protest submissions. Since the allegations were not rebutted by Womack, we conclude that the agency reasonably considered these allegations as accurate in evaluating Womack’s past performance. Womack did challenge the validity of the adverse information regarding its performance of the VSU contract in its response to the discussion questions raised by the Air Force. Given the conflicting views, the Air Force conducted an interview with another individual to obtain yet another assessment of Womack’s performance, which in the agency’s view corroborated the negative evaluation of Womack’s performance and the conclusion that the customer would not award Womack another contract. Womack argues that the interview information does not support the initial negative assessments of A-1 Service’s performance, nor does it support the conclusion that the customer would not award Womack another contract. While the interview information may not support every detail of the initial evaluation, which the agency received, the overall tenor of the information does support the assessment of Womack’s performance as “marginal.” In this regard, the interview contact noted paperwork, communication, and performance problems under the contract. In addition, the contact specifically indicated that the customer had implemented changes to its contractor prequalification process so that it would not repeat the experience it had with Womack, reasonably leading the agency to conclude that the customer was not satisfied with Womack’s performance and would not do business with the firm again. Thus, notwithstanding Womack’s contentions to the contrary, we believe the record shows that the agency acted reasonably in its assessment of Womack’s performance of the VSU contract. (J. Womack Enterprises, Inc., B-299344, April 4, 2007) (pdf)


In challenging the agency’s decision not to attribute the past performance information of CSPS’ parent company, Chenega, Frontier points to numerous sections of CSPS’ proposal referencing the experience and capabilities of Chenega. Frontier also highlights the fact that the relevant experience of CSPS’ key employees involved work they had performed on behalf of Chenega, as well as the fact that CSPS intended to rely on a personnel database maintained by Chenega for recruiting purposes. When taken together, Frontier contends that CSPS’ proposal shows that Chenega will maintain a significant role in performing the required guard and security services contract. CSPS’ proposal, however, clearly identified Chenega’s role under the contract as limited to providing support type functions, i.e., accounting, invoicing, payroll, and quality control certification, and clearly explained that CSPS and Wackenhut personnel were to manage and perform all of the required guard and security services. CSPS Proposal at 39. Based on these clear and unequivocal representations in CSPS’s proposal, the Navy reasonably determined that Chenega would not have a meaningful role in performing the primary services required by the agency and therefore acted properly in not attributing to CSPC the experience or past performance history of its parent corporation. (Frontier Systems Integrators, LLC, B-298872.3, February 28, 2007) (pdf)


The past performance of proposed subcontractors may properly be considered in evaluating the past performance of an offeror where the solicitation does not expressly prohibit its consideration. Federal Acquisition Regulation (FAR) sect. 15.305(a)(2)(iii); Roca Mgmt. Educ. & Training, Inc., B-293067, Jan. 15, 2004, 2004 CPD para. 28 at 5. In its evaluation, the agency gave the awardees credit for their subcontractors’ favorable past performance in determining their performance was low risk. Contrary to the protester’s argument, the RFP did not suggest that prime contractor past performance would necessarily be given greater weight than relevant past performance by subcontractors. Our in camera review of the record shows that the awardees’ past performance evaluations are documented, give appropriate weight to subcontractor past performance and support the low risk ratings.  (Indtai Inc., B-298432.3, January 17, 2007) (pdf)


KIC argues that the agency unreasonably concluded that its proposal was technically unacceptable because KIC elected to meet the solicitation’s experience requirement with the experience of a properly-committed subcontractor. KIC contends that the solicitation allowed offerors to meet the experience requirement with committed key employees or subcontractors, and that its proposal did so in a manner consistent with the solicitation’s instructions. HUD does not argue--nor does the record suggest--that KIC’s proposed subcontractor fails to meet the experience requirement, or that KIC failed to provide a valid letter of commitment from the subcontractor. Rather, HUD explains that the evaluation panel found the proposal unacceptable under the experience portion of the experience and past performance factor because KIC “relied completely on a subcontractor for the work performance and work experience,” AR, Memorandum of Law, at 2, and “because the proposal did not indicate in any fashion that the offeror or any of its own staff had any experience whatsoever in the area of lead evaluation services.” AR, Contracting Officer’s (CO) Statement, at 5. HUD also argues that KIC’s proposal should have been rated unacceptable under the management plan factor, although the contemporaneous evaluation concluded the proposal was acceptable in this area. Id. Specifically, the CO states that he now thinks that KIC’s “proposal (1) indicated no management role for itself in this effort, (2) identified no key personnel staff from [KIC], and (3) did not demonstrate how it would manage subcontractors . . . .” Id. at 9. In our view, HUD’s evaluation strayed from the RFP’s stated evaluation scheme. As indicated above, the RFP expressly provided that “[t]he Offeror and/or its proposed key personnel and/or proposed subcontractors must have performed the same or similar services as required by the solicitation over approximately the last three years.” RFP at M-2. Despite HUD’s attempt to argue that the term “and/or” immediately following the term “Offeror” permits other entities (key personnel or proposed subcontractors) to contribute to an offeror’s showing of experience, but not substitute for it entirely, that is not the commonly understood meaning of the term “and/or.” Rather, the term “and/or” as used in this context indicates that the experience requirement can be met jointly (X and Y together meet the requirement) or by one of the named entities (either X meets the requirement, or Y meets the requirement). Accordingly, KIC’s proposed approach of meeting the experience requirement with its properly-committed subcontractor was consistent with evaluation scheme; HUD’s finding that the proposal was technically unacceptable in this regard was not. As noted above, in the agency report, HUD also argues that the CO now views KIC’s proposal as unacceptable under the third evaluation factor, management plan. (During the contemporaneous evaluation, KIC’s proposal was rated acceptable under the management plan factor.) Generally, we accord little weight to agency efforts to defend, in the face of a bid protest, a prior source selection through the submission of new analyses, because such reevaluations and redeterminations prepared in the heat of the adversarial process may not represent the fair and considered judgment of the agency. Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD para. 91 at 15. In addition, we note that the management plan factor in section M of the RFP was focused entirely on whether an offeror’s proposal indicated sufficient awareness of the 6-day turnaround for inspections required by the solicitation. As mentioned above, the contemporaneous evaluation materials indicate that HUD’s evaluators thought the proposal met this requirement, and based on our review of the record here, we see no basis to question that conclusion. (KIC Development, LLC, B-297425.2, January 26, 2006) (pdf)


The predicate to Aerosol's arguments is its view that the agency improperly considered the past performance history of IH&T's employees and/or corporate partners. We disagree. Generally, an agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm's proposal demonstrates that the resources of the parent or affiliated company will affect the performance of the offeror. Universal Bldg. Maint., Inc. , B-282456, July 15, 1999, 99-2 CPD Paragraph 32 at 6; Phillips Nat'l., Inc. , B-253875, Nov. 1, 1993, 93-2 CPD Paragraph 252 at 6 (rejecting protester's argument that only the "actual awardee" was entitled to list prior contract for purpose of past performance). 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. NAHB Research Ctr., Inc. , B-278876.2, May 4, 1998, 98-1 CPD Paragraph 150 at 4-5. Here, the record shows that the agency recognized that IH&T had no experience of its own but the evaluators considered the past performance history of the awardee's three partners--M.A. Cecil & Associates, Inc. (Cecil), Comar Associates, Inc. (Comar), and All American Environmental Services, Inc.(All American). AR exh. 6, TEC Rating Sheets, Questionnaires, and Notes. In this regard, IH&T's proposal stated that it is a Limited Liability Corporation (LLC) that was created to combine the experience, abilities and strength of three companies that have long histories of providing industrial hygiene, safety and environmental services to the Department of Defense. For more than twenty years, the Partners of IH&T provided these services as independent companies, often in joint ventures with each other. Recently, the Presidents of each company combined forces, incorporating the staff and resources of each company to form IH&T, LLC to provide the manpower, expertise and strength that will be required for engagements of this size and scope. While the corporate structure and name reflect the creation of a new entity, the managing partners and staff are the same highly qualified professionals who have provided industrial hygiene, safety and environmental services . . . AR exh. 4, IH&T's Proposal, at 3-1. IH&T's proposal provided elsewhere that the "organizational structure of IH&T allows [the firm] to have a senior partner dedicated to each area of task responsibility for this program." Id. In addition, IH&T's proposal specifically indicated that all of its past performance contracts are "multi-year contracts awarded to the companies owned by the three partners of IH&T." AR exh. 4, IH&T's Proposal, at 1-5. The consideration of the three partners' past performance here was consistent with the Federal Acquisition Regulation (FAR), which specifically permits agencies "to take into account past performance information regarding predecessor companies, [or] key personnel, who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement." FAR Section 15.305(a)(2)(iii). In addition, the fact that IH&T has no past performance history of its own need not have resulted in a lower past performance and higher risk rating, as contended by AMA. As noted above, the awardee's proposal unequivocally provides that each of the three partners, as well as their personnel and resources, would be involved in the performance of the contract. Thus, the proposal did provide a basis for the agency to consider the experience of the firm's three partners--Cecil, Comar, and All American--in evaluating the past performance of IH&T. Battelle Mem'l Inst., B-278673, Feb. 27, 1998, 98-1 CPD Paragraph 107 at 22. Moreover, the record makes clear that Cecil, Comar, and All American each have a long history of performing industrial hygiene, safety, and environmental services, and AMA does not question these companies' record of successful past performance in this regard, which the agency, based on references received by the evaluators, evaluated as consistently positive. Accordingly, on the basis of the record here, we find no basis to question the agency's evaluation of IH&T's proposal under the past performance evaluation factor. (Aerosol Monitoring & Analysis, Inc., B-296197, June 30, 2005) (pdf0


ELE's protest that the agency erroneously evaluated the awardees' experience is based primarily on its belief that none of the awardees has the required relevant experience to justify their receiving a rating equal to or greater than ELE's rating. However, the record shows that AMES, JWK, and VWI all have significant experience providing operation and maintenance services at medical facilities, both as prime contractors and subcontractors. AR, Tab 3, Source Selection Evaluation Board Report, at 25, 82 and 106. While the protester is correct that Ginn and QSI have limited operation and maintenance experience as prime contractors, the record shows that both of these offerors proposed a team member with highly relevant experience with medical facilities. For example, the SSA specifically recognized that Ginn's primary weakness in medical operation and maintenance experience was offset by its proposal to team with an experienced subcontractor with highly relevant medical operation and maintenance experience. AR, Tab 4, Source Selection Decision, at 5. Similarly, while QSI had limited direct experience with medical operation and maintenance services, the record shows that QSI included in its proposal evidence of a formal DoD/SBA Mentor-Protg Program agreement with an experienced contractor, and the SSA determined that this teaming arrangement "significantly enhanced" QSI's ratings. Id. at 6. ELE asserts that the agency's consideration of proposed subcontractor experience for Ginn and QSI was improper. Here, as described above, the RFP clearly placed offerors on notice that they could propose subcontractors and that at least with respect to past performance, the RFP specifically stated that a subcontractor's prior projects would be evaluated. RFP B, 14. In this connection, an agency may consider an offeror's subcontractor's capabilities and experience under relevant evaluation factors where, as here, the RFP allows for the use of subcontractors and does not prohibit the consideration of a subcontractor's experience in the evaluation of proposals. FMC Corp. , B-252941, July 29, 1993, 93-2 CPD 71 at 2. Thus, in our view, the agency's evaluation of the offerors' subcontractors was not objectionable under the RFP. (Erica Lane Enterprises, Inc., B-295068, January 19, 2005) (pdf)


The Air Force maintains that its evaluation of the program managers experience was proper. According to the program managers resume, prior to his retirement from the Navy as a Captain, he had served as the Executive Officer for a Naval Medical Clinic from June 2001 through May 2004 and as a Navy Family Advocacy Coordinator from March 1999 to June 2001. In evaluating the program managers experience, the agency indicates that, despite the statements in the awardees proposal, its technical evaluators were familiar with the positions held by FAP personnel among the different services and were aware that by virtue of his Executive Officer position the program manager proposed by RehabPlus had the desired experience. In addition, the agency notes that the proposed program managers experience was well known throughout the Navy and the Department of Defense. The agency also highlights the fact that two other offerors proposed the same program manager and demonstrated that he met the desired experience under the management subfactor. As a final matter, the proposed program manager submitted a declaration in response to the protest, which details his experience and establishes that he met the desired experience for the management subfactor. Based on this record, we conclude that the agencys evaluation of the awardees program manager was reasonable. (The OMO Group, Inc., B-294328, October 19, 2004) (pdf)


Based on the record, we think that the agency's evaluation was reasonable. First, to the extent that ATL argues that risk, in and of itself, was an undisclosed evaluation criterion, we note that agencies may always consider a proposal's risk to successful performance where that risk is intrinsic to the stated evaluation factors. Ridoc Enter., Inc. , B-202962.4, July 6, 2004, 2004 CPD __ at 7; Davies Rail & Mech. Works, Inc. , B-278260.2, Feb. 25, 1998, 98-1 CPD 134 at 10. Next, although an agency may consider the separate qualifications of individual partners in evaluating a joint ventures experience or past performance, there is no converse requirement that an agency disregard a lack of experience or past performance by the joint venture. Transventures Intl, Inc. , B-292788, Nov. 4, 2003, 2003 CPD 195 at 7; Global Engg & Constr. Joint Venture , B-275999 et al. , Oct. 6, 1997, 97-2 CPD 125 at 9; MR&S/AME, An MSC Joint Venture , B-250313, B-250313.2, Mar. 19, 1993, 93-1 CPD 245 at 9. Further, we do not think that the RFPs statement that joint ventures whose partners had prior experience working together would receive more weight, or any other language in the RFP, in any way prohibited the agency from reasonably considering that a joint venture whose partners lacked prior work experience together might pose a risk to successful performance. The SSB risk assessments here were well within the agency's discretion, as they reasonably related to the stated evaluation factor of organizational experience, which required offerors to demonstrate the degree to which an offeror has completed recent new construction projects that are similar in scope, construction features, monetary value and complexity, and also to the stated evaluation factor of organizational past performance, which required offerors to demonstrate that the offeror has managed projects submitted under Factor 1 [that are relevant based on the criteria of] new construction projects physically completed within the past five years, have somewhat similar construction features, and are somewhat similar in dollar value and complexity. RFP amend. 2, 202, at 1.2, Factors 1 and 2. (AIA-Todini-Lotos, B-294337, October 15, 2004) (pdf)


Command protests the agency's past/present performance evaluation, essentially arguing that, based on the prior experience of Command's proposed project manager, the agency was required to rate Command's past/present performance as exceptional/high confidence. We disagree. Here, the agency evaluated Command's past/present performance as satisfactory/confidence because Command had not performed any contracts that constituted relevant past performance; that is, Command's prior contracts were relatively small, and the scope of activities previously performed was more limited than the broad range of activities required under this solicitation. As noted above, the RFP contained clear definitions regarding relevant past/present performance, and also advised offerors that, in evaluating past/present performance the agency would consider the risks and strengths identified in the past and present performance record of each offeror. The agency's procurement record amply supports the agency's concern that Command, the corporate offeror, had not, performed any contracts of sufficient size or scope to qualify as relevant past performance. Although Command's proposal of an experienced project manager reduced the agency's assessment of risk flowing from Command's limited corporate experience, we find nothing unreasonable in the agency's assessment of only a satisfactory/confidence rating. Accordingly, Command's assertion that the experience of one individual, its proposed project manager, mandated a rating of exceptional/high confidence is without merit. (Command Enterprises, Inc., B-293754, June 7, 2004) (pdf)


Ridocs argument that the experience of its individual managers demonstrates its ability to manage this contract is based on its belief that the agency must impute to Ridoc, as an organization, the experience of its proposed managers. We have held, however, that while an agency may properly consider the experience of key personnel in evaluating an entitys corporate experience, Rice Servs., Ltd. , B284997.5, Mar. 12, 2002, 2002 CPD 59 at 5, absent a solicitation provision mandating such consideration, there is no legal requirement that it do so. Id. In any event, we note that the information submitted regarding the experience of the various managers was general in nature, lacking specificity and detail. For example, Ridocs vice president was described as having a background in management of both manufacturing and service businesses. He oversees a commercial security contract and is familiar with the requirements and has participated fully in the preparation of this proposal. [He] has 27 years management experience in local government and commercial activities. Ridoc Quotation at 7. The agency could reasonably view such general summaries as lacking the detail required to assess the firms management capability. Accordingly, we conclude that the corporate experience/management capability evaluation was reasonable and consistent with the RFQ. (Ridoc Enterprise, Inc., B-292962.4, July 6, 2004) (pdf)


Our reading of the materials submitted with the agency report provides no support for HSG’s contention that the Army’s evaluation has been rendered invalid by the change in SGM’s ownership. For example, the record shows only that the corporate shares of SGM changed hands. AR, Tab 3, at 2. In addition, the new owners have indicated that the entity formerly known as SGM remains intact, has the same location and offices, and intends to honor its prior commitments. Id. In our view, this situation is analogous to those where an agency properly credits an offeror with the favorable past performance experience of key employees who gained their experience working elsewhere. See MCR Eng’g Co., Inc., B-287164, B-287164.2, Apr. 26, 2001, 2001 CPD ¶ 82 at 7. In fact, unlike in MCR, there is no suggestion that any of the strengths of the entity formerly known as SGM are other than fully intact and available. Put simply, there is nothing in this record that suggests that the licenses and permits, the specialized personnel, the information conveyed during the oral presentation, or the administrative resources offered by SGM have been rendered unavailable, or in any way changed by this transaction. (Consortium HSG Technischer Service GmbH and GeBe Gebäude- und, B-292699.6, June 24, 2004) (pdf)


IMC next complains that TLD “misrepresented” the status of one of its proposed key personnel, and that TLD’s proposal should have been downgraded under the technical/management subfactor for failing to submit a resume for that individual. In this regard, the record shows that both IMC’s and TLD’s proposals offered the same individual to perform as key personnel. In short, IMC asserts that, because the individual at issue was committed to IMC as its project manger, he could not also be committed to TLD. We disagree. As with past performance, we review challenges to an agency’s technical evaluation only to determine whether the agency acted reasonably and in accord with the solicitation’s evaluation criteria and applicable procurement statutes and regulations. PharmChem, Inc., B-291725.3 et al., July 22, 2003, 2003 CPD ¶ 148 at 3. Here, the record shows that TLD unambiguously disclosed to the agency that TLD could not provide the proposed job superintendent’s resume because of that individual’s commitment to its current employer, IMC. AR, Tab 7, TLD’s Initial Proposal, at 156. Nonetheless, TLD’s proposal included a letter of intent, signed by the individual in question, stating that “based on the successful bid [of TLD under this solicitation],” this individual “will assume [the] position as job superintendent.” Id at 162. The record further shows that the Army recognized that TLD’s proposed job superintendent was currently managing the grounds maintenance work for IMC and that he had also been proposed as IMC’s project manager. AR, Tab 9, TLD’s Overall Technical/Management Rating, at 1-2; Tab 8, IMC’s Overall Technical/Management Rating, at 1. On this record, there is no merit to IMC’s assertion that TLD’s proposal misrepresented the individual’s status. (Family Entertainment Services, Inc., d/b/a/ IMC, B-291997.4, June 10, 2004) (pdf)


Where an agency is evaluating the experience and past performance of a joint venture, there is nothing improper in the agency considering the specific experience and past performance of the entity that would actually perform the work so long as doing so is not expressly prohibited by the RFP. Base Techs., Inc., B-293061.2, B-293061.3, Jan. 28, 2004, 2004 CPD ¶ 31 at 10. Moreover, the SBA regulations governing the mentor-protégé program do not provide otherwise, see 13 C.F.R. § 124.520, and we find no other basis for precluding the agency from considering the experience and past performance of both partners in such an arrangement. Urban-Meridian Joint Venture, B-287168; B-287168.2, May 7, 2001, 2001 CPD ¶ 91 at 3. It is undisputed that the RFP does not indicate how joint venture proposals would be evaluated. However, the record shows that, consistent with the terms of the RFP, the agency evaluators determined that it was important to consider the experience and past performance of the individual joint venture partners since each would perform major or critical aspects of the solicited requirements. Such a determination should, in our view, be considered a matter of contracting agency discretion, and the protester has not shown that the agency abused its discretion in this regard. The fact that the protester disagrees with the agency does not establish that the evaluation approach was unreasonable. The Paintworks, Inc., B-292982, B-292982.2, Dec. 23, 2003, 2003 CPD ¶ 234 at 3. With respect to the protester’s specific allegation that the agency based the consensus evaluation ratings for the joint venture by simply averaging the individual joint venture partners’ ratings, the record reflects otherwise. As explained previously, the JACO/MCC consensus ratings were the product of an SSEB meeting at which the evaluators discussed their assessments in order to develop a consensus rating for each factor. Contracting Officer’s Statement of Facts at 2-3. The record further shows that the SSEB reviewed and analyzed the joint venture agreement and the SSEB chairman prepared a table listing the individual partners’ and the joint venture’s responsibilities under the contract. For example, while the joint venture would provide [DELETED], MCC would review [DELETED] and JACO would direct [DELETED]. Similarly, while the joint venture would provide [DELETED], MCC would establish [DELETED] procedures subject to JACO’s approval. The SSEB also noted that under the joint venture agreement, JACO was [DELETED]. AR exh. 8, Revised SSEB Evaluation, at 15; AR exh. 30, JACO/MCC Joint Venture Agreement, at 2. The protester argues that the agency’s conclusion that the individual joint venture partners’ responsibilities under this contract would be 50/50 impermissibly ignored the clear weight of responsibility that resided with the mentor partner. Protester’s Comments at 3, Mar. 26, 2004. Given the respective roles of the partners as identified by the SSEB from the joint venture agreement, we have no basis to question the SSEB’s conclusion that both joint venture partners’ experience and past performance should be evaluated and given equal weight. (JACO & MCC Joint Venture, LLP, B-293354.2, May 18, 2004) (pdf)


The agency does not dispute the protester’s assertion that the agency failed to consider its key personnel under the corporate experience factor. Rather, the agency maintains that it was not required to consider Ashe’s management personnel when evaluating Ashe’s corporate experience as an entity. 14 The record reflects, however, that the agency considered Kira’s “key personnel” when it evaluated Kira’s corporate experience. For example, in the final SSB report, which was approved by the SSA, the SSB changed the “marginal” rating it had assigned to Kira’s corporate experience in prior evaluations to an “acceptable” rating, stating that Kira’s “key personnel” warranted the rating and offset performance risks. See AR, exh. 16, supra, at 2-3. Moreover, the TEB report, which was prepared after the first round of discussions, explains that Kira’s lack of similar experience for the [deleted] work required under the RFP was “offset by the experience of Key Personnel.” AR, exh. 11, TEB Report, Kira Synopsis, at 1. Finally, the chairman of the SSB stated in a declaration prepared in response to Ashe’s protest that Kira’s final acceptable rating for corporate experience was warranted based, in part, on Kira’s “key personnel.” AR, exh. 18, Decl. of SSB Chairman, at 3. Given the clear indication in the record that the agency considered Kira’s key personnel under the corporate experience factor, it was unfair for the agency not to consider Ashe’s key management personnel under the same factor. This disparate treatment rendered the agency’s evaluation of corporate experience unreasonable. Lockheed Martin Info. Sys., B-292836 et al., Dec. 18, 2003, 2003 CPD ¶ 230 at 11-12. (Ashe Facility Services, Inc., B-292218.3; B-292218.4, March 31, 2004) (pdf)


Where an RFP requires the evaluation of offerors’ past performance, an agency has the 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 RFP’s requirements. Honolulu Shipyard, Inc., B-291760, Feb. 11, 2003, 2003 CPD ¶ 47 at 4. The performance history of one or more of the individual joint venture partners may be considered in evaluating the past performance of the entire joint venture, so long as doing so is not expressly prohibited by the RFP. Northrop Grumman Tech. Servs., Inc.; Raytheon Tech. Servs. Co., B-291506 et al., Jan. 14, 2003, 2003 CPD ¶ 25 at 30. Here, the RFP did not preclude consideration of a joint venture partner’s past performance in lieu of performance by the joint venture entity, or require consideration of all of the partners’ past performance, but instead contemplated that the agency would evaluate relevant contracts and subcontracts that are similar in nature to the requirements of the RFP. In its proposal, LAJV identified several prior contracts from only one of its partners, LifeCare, who was proposed to provide investigation experts and analysts, to include all of the senior project management and supervisory team and senior data retrieval specialists, and corporate resources for specialized investigation research training and Microsoft product training. The proposal explained that LifeCare’s “core competencies include legal counsel, forensic accounting, auditing, assessments and reviews, investigations, data analysis, data mining, case management, and centralized operations center management.” AR, Tab 8, LAJV Proposal, § 1.3. Given that the description of LifeCare’s efforts encompassed most of the services required under the RFP, we find that the agency could properly consider LifeCare’s performance history to be reasonably predictive of the performance of the joint venture as a whole. See Northrop Grumman Tech. Servs., Inc., supra, at 30-31. (Base Technologies, Inc., B-293061.2; B-293061.3, January 28, 2004) (pdf)
 


The record here shows that in evaluating MMF's past/present performance, the agency gave MMF credit for Spray Systems' substantial experience in manufacturing and providing paint booths, for which Spray Systems received ratings of very good and exceptional from each of its references.[2] The experience of a proposed subcontractor properly may be considered in determining whether an offeror meets experience or past performance requirements where the solicitation does not expressly prohibit its consideration. See Federal Acquisition Regulation § 15.305(a)(2)(iii); Rolf Jensen & Assocs., Inc., supra, at 6. Given the absence of any prohibition in the RFP on consideration of a subcontractor's relevant experience, and in view of Spray Systems' positive references, it was reasonable for the agency to favorably consider Spray Systems' experience in evaluating the awardee's ability to perform the RFP's requirements. (The Paintworks, Inc., B-292982; B-292982.2, December 23, 2003) (pdf)


The record shows that the agency in fact considered all of Career Quest’s and [deleted]’s experience in the evaluation, and that it assigned strengths to Career Quest based on its association with its subcontractor, and that firm’s experience with a similar operation and continuity of service. AR, Tab 12, at 6. However, as discussed above, Career Quest was downgraded due to the lack of its own similar experience. In this regard, the RFP specifically warned joint arrangement offerors (such as Career Quest) that their proposals must clearly demonstrate that the section 8(a) prime contractor had sufficient experience and resources of its own, and was not relying solely on the subcontractor to provide the expertise and/or resources. RFP Addendum H at H‑1(b)(12)(b). Since Career Quest, the proposed prime contractor, failed to provide information establishing that it possessed similar experience, as discussed above, we have no basis for questioning the agency’s determination that Career Quest was unacceptable under the experience factor, and its decision to eliminate Career Quest’s proposal from the competitive range. (Career Quest, Inc., B-292865; B-292865.2, December 10, 2003) (pdf)


The evaluation here was reasonable. First, while the record shows that the agency indeed was aware that Delco held its supplier responsible for the late deliveries, the agency had no information--and the record contains none--definitively showing that Delco's position regarding the cause of the delinquencies was the correct one. Rather, the agency was aware that the delivery problems may be due to other problems Delco was having; the agency states--without purporting to adjudicate any dispute--that it had “information from more than one source that problems [with Delco] did exist and were related to a history of late payments for materials by the protester to its subcontractor.” AR at 13. The agency also was aware that, as noted above, it had been necessary for it to provide webbing to Delco to “optimize” delivery under another recent contract. As indicated above, an agency's evaluation properly may be based on its reasonable perception of inadequate prior performance, whether or not the offeror disputes the agency's interpretation of the facts. The agency's perception of Delco's performance problems clearly was reasonable, since it had no information establishing that the information it had been presented was incorrect, and there had been no formal adjudication of the matter in Delco's favor. Contrary to Delco's assertion, we find nothing unreasonable in the agency's considering the information furnished by the supplier; the mere fact that Delco disputed it did not render it invalid or any less reliable than the information Delco had furnished. In any case, Delco's attempt to absolve itself of all responsibility for the delayed deliveries is unavailing; as the agency point out, a prime contractor under a government contract is normally responsible for the performance of its subcontractors. ViaSat, Inc., B‑291152, B‑291152.2, Nov. 26, 2002, 2002 CPD ¶ 211 at 8; Neal R. Gross & Co., Inc., B-275066, Jan. 17, 1997, 97-1 CPD ¶ 30 at 4. Delco has not established that a different rule should apply here.  (Delco Industrial Textile Corporation, B-292324, August 8, 2003)  (pdf)


Gentex also contends that Scott should not have been credited with SAIC's past performance experience. We disagree. As a general rule, subcontractor and team member performance may be considered in assessing past performance. Battelle Mem'l Inst., B-278673, Feb. 27, 1998, 98-1 CPD ¶ 107 at 22; Phillips Nat'l, Inc., B-253875, Nov. 1, 1993, 93-2 CPD ¶ 252 at 6 (rejecting protester's argument that only the "actual awardee" was entitled to list prior contract for purpose of past performance). The consideration of both the team members' past performance here was consistent with the RFP, which specifically required consideration of the PDRR "team effort" (which includes both Scott and SAIC) and prototype quality (which reflects the work of both Scott and SAIC). RFP § M, at 6. In addition, Scott's lack of prime contractor experience under the PDRR contract need not have resulted in a lower past performance and higher risk rating, as contended by Gentex. As Scott's proposal states, "SAIC was the logical lead for an effort that was primarily [research & development] and involved extensive integration with aircraft and [life support equipment]. . . . Scott is the logical prime contractor for the SDD and Production phases, where final development for manufacturing and production are the primary emphasis." Scott Proposal, vol. I, Executive Summary, at 1. Based on our review, we think the agency reasonably considered the PDRR team's experience in finding that Scott's past performance was satisfactory.  (Gentex Corporation--Western Operations, B-291793; B-291793.2; B-291793.3, March 25, 2003)  (txt version)


Here, the record establishes that DFAS performed its own research regarding the status of BOA and Bank of America, N.A. (USA), concluding that, although both companies were wholly-owned subsidiaries of Bank of America Corporation, they are, in fact, separate legal entities. AR, Tab Y, Evaluation Summary, Tab Y-4. The agency further determined that the two entities have substantially different workforces, management, and facilities. Id. Finally, based on these considerations, along with the fact that DFAS has been responsible for administering both the travel card contract and the OMBP contract and has interfaced with different legal and managerial entities for the two contracts in the past, the agency concluded that Bank of America, N.A. (USA) would not be involved in performing the OMBP contract and that it would be inappropriate to consider performance of the travel card contract in connection with the evaluation of BOA's past performance for the OMBP contract. On this record, we have no basis to question the reasonableness of the agency's determination.  (National City Bank of Indiana, B-287608.3, August 7, 2002)  (pdf)


Federal Acquisition Regulation (FAR) § 15.305(a)(2)(iii) directs agencies to take into account past performance information regarding predecessor companies, key personnel, and major subcontractors when such information is relevant to an acquisition.  Thus, the agency properly can consider the relevant experience and past performance history of the individual joint venture partners in evaluating the past performance of the joint venture, so long as doing so is not expressly prohibited by the RFP.  See Rolf Jensen & Assocs., Inc., B-289475.2, B-289475.3, July 1, 2002, 2002 CPD ¶___ at 6; Dynamic Isolation Sys., Inc., B-247047, Apr. 28, 1992, 92-1 CPD ¶ 399 at 7 n.7.  Here, not only did the RFP not prohibit considering the experience/past performance of the individual joint venture partners in the evaluation, as noted above, it specifically encouraged (RFP at 3-4) offerors to provide such information.  

The record shows that BNCI/AKAL's proposals contained the required financial information regarding both individual joint venturers.  Agency Report, Tab 14, BNCI/AKAL Proposal § C.  Contrary to MVM's contentions, the separate qualifications and financial capability of each of the legal entities in a joint venture properly can be considered in evaluating the qualifications of the joint venture.  See Beneco Enters., Inc., B-239543.3, June 7, 1991, 91-1 CPD ¶ 545 at 6‑7.  Our review confirms that the agency considered, and could reasonably conclude from, the information submitted in BNCI/AKAL's proposal that the joint venture could complete the requirements of the contracts.   (MVM, Inc., B-290726; B-290726.2; B-290727; B-290727.2, September 23, 2002)   (pdf)


In determining whether one company's performance should be attributed to another, the agency must consider not simply whether the companies are affiliated, but also the nature and extent of the relationship between the two--in particular, whether the proposal demonstrates that the workforce, management, facilities, or other resources of the affiliate may affect contract performance by the offeror. Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 68 at 4-5; ST Aerospace Engines Pte. Ltd., B-275725, Mar. 19, 1997, 97-1 CPD ¶ 161 at 3. Here, the record shows that Penauille did not propose to use its corporate affiliate to perform the present contract. Although the agency now states that two high-level management personnel are shared by the two affiliates, Penauille's proposal did not commit either person to performance under the present contract. Thus, the proposal did not provide any basis for the agency to consider the experience of Penauille's affiliate in evaluating the past performance of Penauille. See ST Aerospace Engines Pte. Ltd., supra at 3-4 (shared top level management is not sufficient basis to credit a firm with an affiliated entity's past performance experience where the proposal does not show that these personnel would be involved in contract performance).  It is also notable that the agency did not offer this argument until late in the protest process. It clearly was not part of the evaluation upon which the award was based; rather it is a reevaluation of the proposal conducted in the heat of an adversarial process. As such, it may not represent the fair and considered judgment of the agency, which is a prerequisite of a rational evaluation and source selection process. We thus find it inappropriate to accord any significant weight to the agency's position. See Tennier Indus., Inc., B-286706.2, B-286706.3, Mar. 14, 2001, 2002 CPD ¶ 75 at 5 n.4; Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97-2 CPD ¶ 91 at 15. Once the Paris contracts are removed from consideration, the record does not support a finding that Penauille's contracts exceeded the scope or complexity of the RFP requirements.  (Gemmo Impianti SpA, B-290427, August 9, 2002)  (pdf)


Viewing the protest as a whole, we understand Hot Shot's essential argument to be that, lacking a DOT motor carrier identification number of its own, CSS could not be "regularly established in business to provide transport services"--as required by the solicitation--and could not have past performance of its own. This argument is without merit. An agency properly may attribute the experience or past performance of a parent or affiliated company to an offeror where the firm's proposal demonstrates that the resources of the parent or affiliated company will affect the performance of the offeror. Universal Bldg. Maint., Inc., B-282456, July 15, 1999, 99-2 CPD ¶ 32 at 6. 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, such that the parent or affiliate will have meaningful involvement in contract performance. Perini/Jones, Joint Venture, B-285906, Nov. 1, 2000, 2002 CPD ¶ 68 at 4-5; NAHB Research Ctr., Inc., B-278876.2, May 4, 1998, 98-1 CPD ¶ 150 at 4-5. Further, where, as here, no provision in the solicitation precludes offerors from relying on the resources of their corporate parent or affiliated companies in performing the contract, and an offeror represents in its proposal that resources of a related company will be committed to the contract, the agency properly may consider those resources in evaluating the proposal. See Physician Corp. of Am., B-270698 et al., Apr. 10, 1996, 96-1 CPD ¶ 198 at 13. The record here indicates that the resources of CSS's parent and affiliated companies will have meaningful involvement in contract performance. CSS's proposal indicated that CSS is part of a family of wholly-owned subsidiaries and closely-held affiliates with interlocking officers and boards of directors, which provide a variety of services to the federal government, and the parent of which was Crown Management Services, Inc. According to the proposal, although the Crown companies operate as independent cost centers, they report to the corporate office in Pensacola, Florida, from which they receive corporate resources and support as required. CSS Past Performance Proposal at 2.  (Hot Shot Express, Inc. , B-290482, August 2, 2002)  (pdf)


In this regard, an agency may reasonably attribute to an offeror the performance of firms that are members of the offeror’s proposed team where the team members are to be involved in the contract effort. Wackenhut Servs., Inc., B-276012.2, Sept. 1, 1998, 98-2 CPD ¶ 75 at 6. As discussed above, the agency recognized that RLM did not have its own experience in providing emergency room physician services.  However, to perform this contract, RLM teamed with RGB, which did have experience similar to that required by the RFQ, that is, experience in providing physicians and other medical personnel to the government. Since the RFQ did not prohibit teaming arrangements, we believe the agency reasonably determined to evaluate and credit RLM with the similar experience of RGB, RLM’s team member for performance of the RFQ requirements. Other than expressing disagreement with this aspect of the agency’s evaluation, Godwin has provided no meaningful basis for our Office to question the reasonableness of the agency’s evaluation of RLM’s offer in the area of experience.  (Godwin Corporation, B-290291, June 17, 2002 (pdf))


TyeCom asserts that it was entitled to an exceptional rating under this evaluation factor based on the past performance of its company president, and that DOE improperly failed to credit this experience. TyeCom cites FAR 15.305(a)(2)(iii) as requiring that "the evaluation take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.* Protest at 6. While, in fact, the FAR language cited by the protester is precatory rather than mandatory, the simple and undisputed answer is that for purposes of evaluation as key persons under section L-14 of the RFP, the solicitation designated only the program manager and assistant program manager. AR.3 at 6. TyeCom's company president was not proposed to fill either position and therefore does not fall within the purview of the key person requirement. The agency also correctly points out that while, in appropriate circumstances, an agency properly may consider the experience of supervisory personnel in evaluating the experience of a new business, there is no legal requirement for an agency to attribute employee experience to the contractor as an entity. Hard Bodies, Inc., B-279543, June 23, 1998, 98-1 CPD ¶ 172 at 4. Accordingly, the agency was under no obligation to credit TyeCom as a corporate entity with the individual experience or past performance of the company's president; TyeCom's protest allegation is misplaced as to both fact and law.  (TyeCom, Inc., B-287321.3; B-287321.4, April 29, 2002)  (pdf)


We think that the agency's decision not to attribute the past performance of MCS's subcontractor to MCS in rating its past performance was reasonable. The key consideration in determining whether a subcontractor's past performance should be considered is whether the experience is reasonably predictive of the offeror's performance under the contract. Strategic Res., Inc., B-287398, B-287398.2, June 18, 2001, 2001 CPD para. 131. As indicated, the RFP stated that the "organization itself will be evaluated with respect to the Offeror's past experience." RFP at 36. Based on our review of the record, we conclude that the agency reasonably determined that MCS's subcontractor, which was to supply [DELETED] of the [DELETED] full-time employees, was not a major or critical subcontractor, and thus did not attribute the experience of this subcontractor to MCS; MCS's contesting of this point constitutes mere disagreement which does not render the agency's judgment in this regard unreasonable. Strategic Res., Inc., supra; Oceanometrics, Inc., B-278647.2, June 9, 1998, 98-1 CPD para. 159 at 5.  (MCS of Tampa, Inc., B-288271.5, February 8, 2002)


While agencies may consider the prior relevant experience of subcontractors, in the absence of a solicitation provision to the contrary, there is no broad requirement that they do so. North State Res., Inc., B-282140, June 7, 1999, 99-2 CPD para. 60 at 7.  (Systems Management, Inc.; Qualimetrics, Inc., B-287032.5; B-287032.6, November 19, 2001)


Al Hamra argues that Al Musairie cannot be a successor to Baddah & Musairie because that firm still exists as a legal entity. However, as noted, the key consideration in this area is whether the experience evaluated reasonably can be considered predictive of the offeror's performance under the contract. Since Al Musairie has acquired the resources Baddah & Musairie used in performing the cited contracts, thus affording some additional confidence in the likelihood of successful performance by Al Musairie under the contemplated contract, we see nothing unreasonable in the agency's considering Baddah & Musairie's experience in the evaluation, whether or not Baddah & Musairie remains in existence.  (Al Hamra Kuwait Company, B-288970, December 26, 2001)


The contract specialist and the contracting officer discussed the fact that IIUSA is a new company with no corporate experience and decided that it would be appropriate to evaluate the key personnel capabilities for IIUSA rather than the company. The record shows that IIUSA's chief executive officer and two of its instructors, both of whom were also proposed for management positions and were previously employed by DRA under its prior contract for these services, all received excellent ratings from their references, and that these ratings formed the basis for the firm's excellent-low risk rating. Since the relevance of the experience of key personnel experience in an acquisition for training is self-evident, the Army properly considered such experience in evaluating IIUSA's proposal for past performance.  (DRA Software Training, B-289128; B-289128.2, December 13, 2001)


While Lynwood did propose to hire experienced former SAF personnel, including a former SAF employee to serve as the project manager, the agency simply concluded that this employee experience was not equivalent to SAF's demonstrated relevant corporate experience. In any case, it did not provide any evidence (such as letters of intent or commitment) showing that these employees would accept employment with Lynwood. Under these circumstances, the agency was not required to credit Lynwood with the employees' experience. See Urban-Meridian Joint Venture, B-287168, B-287168.2, May 7, 2001, 2001 CPD para. 91 at 3; SWR Inc., B-286044.2, B-286044.3, Nov. 1, 2000, 2000 CPD para. 174 at 2-3.  (Lynwood Machine & Engineering, Inc., B-287652, August 2, 2001)


In determining whether one company's performance should be attributed to another, the agency must consider not simply whether the two companies are affiliated, but the nature and extent of the relationship between the two--in particular, whether the workforce, management, facilities, or other resources of one may affect contract performance by the other. ST Aerospace Engines Pte. Ltd., B-275725, Mar. 19, 1997, 97-1 CPD para. 161 at 3. In this regard, it is appropriate to consider an affiliate's performance record where it will be involved in the contract effort, Fluor Daniel, Inc., B-262051, B-262051.2, Nov. 21, 1995, 95-2 CPD para. 241 at 12, or where it shares management with the offeror. Morris Knudsen Corp., B-280261, Sept. 9, 1998, 98-2 CPD para. 63 at 4-5.  (Strategic Resources, Inc., B-287398; B-287398.2, June 18, 2001)


As for Urban-Meridian's intention to hire the incumbent employees, the firm's proposal did not include any information demonstrating that these employees would accept employment with Urban-Meridian. For example, Urban-Meridian did not submit letters of interest or intent from the employees, and did not provide an explanation of how it planned to recruit them; indeed, Urban did not even indicate that it had contacted the employees. Under these circumstances, GSA's failure to credit Urban with the experience of these potential employees was not unreasonable.  (Urban-Meridian Joint Venture, B-287168; B-287168.2, May 7, 2001)


However, agencies properly may consider an offeror's subcontractor's experience under relevant evaluation factors where, as here, the RFP allows for the use of subcontractors to perform the contract, and does not prohibit consideration of subcontractor experience in the evaluation of proposals. Premier Cleaning Sys., Inc., B-249179.2, Nov. 2, 1992, 92-2 CPD para. 298 at 4; Commercial Bldg. Serv., Inc., B-237865.3, May 16, 1990, 90-1 CPD para. 473 at 6.  (Myers Investigative and Security Services, Inc., B-286971.2; B-286971.3, April 2, 2001)


Protest that agency misevaluated technical proposals is sustained where record shows that agency improperly gave awardee evaluation credit for corporate experience of an affiliated company that was not proposed to perform the contract.  (Perini/Jones, Joint Venture, B-285906, November 1, 2000)


Agency reasonably assigned a favorable past performance rating to awardee's proposal based primarily on the experience of one key individual where solicitation specifically stated that in assessing past performance, the agency would consider the experience of key personnel; that individual has extensive, relevant experience; and, as corporate vice president and project manager, that individual will have substantial involvement in managing and overseeing performance of the contract.  (SDS International, B-285822; B-285822.2, September 29, 2000)


An offeror may not propose to use specific personnel that it does not expect to use during contract performance; doing so would have an adverse effect on the integrity of the competitive procurement system and generally provide a basis for proposal rejection. CBIS Fed. Inc., B-245844.2, Mar. 27, 1992, 92-1 CPD para. 308 at 5. The elements of such a "bait and switch" rendering a contract award improper, are as follows: (1) the awardee represented in its proposal that it would rely on certain specified personnel in performing the services; (2) the agency relied on this representation in evaluating the proposal; and (3) it was foreseeable that the individuals named in the proposal would not be available to perform the contract work. Ann Riley & Assocs., Ltd.--Recon., B-271741.3, Mar. 10, 1997, 97-1 CPD para. 122 at 2-3.  (Airwork Limited-Vinnell Corporation (A Joint Venture), B-285247; B-285247.2, August 8, 2000)


Agency's determination that the awardee's past performance, based on the experience of one of the awardee's proposed key personnel, was equal to the extensive, successful past performance of the protester, was unreasonable and inconsistent with the solicitation's evaluation scheme.  (Beneco Enterprises, Inc., B-283512.3, July 10, 2000)


In evaluating the protester's experience and past performance, an agency was not required to impute to the protester the totality of its proposed mentor's experience and past performance, where the mentor was not proposed to play a major role in the performance of the contract.  (BioGenesis Pacific, Inc., B-283738, December 14, 1999)


We have sustained protests where the awardee failed to disclose material changes in personnel availability which occurred after proposals were submitted, but before award. See, e.g., Mantech Field Eng'g Corp., B-245886.4, Mar. 27, 1992, 92-1 CPD para. 309 at 5; CBIS Fed. Inc., B-245844.2, Mar. 27, 1992, 92-1 CPD para. 308 at 5-6. Here, the record shows that Camber agreed to sell the division which it stated would perform significant TSA work and to transfer the employees of that division to the acquiring company. Camber did not notify the Air Force of the sale agreement.  (Dual, Incorporated, B-280719, November 12, 1998)


Agency improperly downgraded protester's proposal relative to awardee's based on awardee's more detailed description of proposed elevator maintenance subcontractor's experience; since protester and awardee proposed same subcontractor, they should have received same score for subcontractor's experience.  (Consolidated Engineering Services, Inc, B-279565.2; B-279565.3, June 26, 1998)


As explained above, we conclude that Dynacs misrepresented the level of commitment it received from its key personnel, which, together with the agency's erroneous conclusion that the proposal offered "signed commitments," led to a material misevaluation of Dynacs's proposal under the key personnel subfactor within the mission suitability evaluation factor. We also conclude that the misevaluation of the key personnel portion of Dynacs's proposal had a ripple effect in other areas of the mission suitability evaluation as well.  (Aerospace Design & Fabrication, Inc., B-278896.2; B-278896.3; B-278896.4; B-278896.5, May 4, 1998)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Desbuild Inc. B-413613.2: Jan 13, 2017 GiaCare and MedTrust JV, LLC B-407966.4: Nov 2, 2016
Global Science & Technology, Inc. B-413765, B-413765.2: Dec 22, 2016 Deloitte Consulting, LLP; Booz Allen Hamilton, Inc.; CALIBRE Systems, Inc. B-411884, B-411884.2, B-411884.3, B-411884.4, B-411884.5, B-411884.6: Nov 16, 2015  (pdf)
Choctaw Staffing Solutions B-413434: Oct 24, 2016 Raytheon Company, B-409651, B-409651.2: Jul 9, 2014  (pdf)
Davis Strategic Innovations, Inc. B-413305: Sep 26, 2016 Alutiiq Pacific, LLC, B-409584, B-409584.2: Jun 18, 2014  (pdf)
Logistics Management International, Inc. B-412837: Jun 6, 2016  (pdf) Iyabak Construction, LLC, B-409196: Feb 6, 2014  (pdf)
Dee Monbo, CPA B-412820: May 23, 2016  (pdf) IAP World Services, Inc.; EMCOR Government Services, B-407917.2, B-407917.3, B-407917.4, B-407917.5, B-407917.6, B-407917.7, Jul 10, 2013  (pdf)
Systems Engineering Partners, LLC B-412329, B-412329.2: Jan 20, 2016  (pdf) CIGNA Government Services, LLC, B-401062.2; B-401062.3, May 6, 2009  (pdf)
Global Dimensions, LLC B-411288: Jun 30, 2015  (pdf) Powersolv, Inc., B-402534; B-402534.2, June 1, 2010 (pdf)
DKW Communications, Inc. B-411182, B-411182.2: Jun 9, 2015  (pdf) Brican Inc., B-402602, June 17, 2010  (pdf)
Bethel-Webcor JV B-410772: Feb 12, 2015  (pdf) Health Net Federal Services, LLC, B-401652.3; B-401652.5, November 4, 2009  (pdf)
Bowhead Science and Technology, LLC, B-409871: Aug 26, 2014  (pdf) Ahtna Support and Training Services, LLC, B-400947.2, May 15, 2009  (pdf)
Design Engineering, Inc., B-408336.3: May 6, 2014  (pdf) Doyon-American Mechanical, JV; NAJV, LLC, B-310003; B-310003.2, November 15, 2007 (pdf)
Ma-Chis Kawv V, LLC, B-409344: Mar 20, 2014  (pdf) KIC Development, LLC, B-297425.2, January 26, 2006 (pdf)
Hughes Group Solutions, B-408781.2: Mar 5, 2014  (pdf) Ashe Facility Services, Inc., B-292218.3; B-292218.4, March 31, 2004 (pdf)
TISTA Science and Technology Corporation, Inc., B-408175.4, Dec 30, 2013  (pdf) Gemmo Impianti SpA, B-290427, August 9, 2002 (pdf)
Savvee Consulting, Inc. B-408623, B-408623.2, Nov 8, 2013  (pdf) Symtech Corporation, B-289332, February 19, 2002
Harbor Services, Inc., B-408325, Aug 23, 2013  (pdf) Perini/Jones, Joint Venture, B-285906, November 1, 2000
Contracting, Consulting, Engineering, LLC, B-405732.4, B-405732.6, B-405732.7, Feb 2, 2012  (pdf) Beneco Enterprises, Inc., B-283512.3, July 10, 2000
Sevatec, Inc., B-406784, Aug 23, 2012  (pdf) Dual, Incorporated, B-280719, November 12, 1998
HydroGeoLogic, Inc., B-406635, B-406635.2, B-406635.3, B-406635.4, Jul 25, 2012  (pdf) Consolidated Engineering Services, Inc, B-279565.2; B-279565.3, June 26, 1998
Sigmatech, Inc., B-406288.2, Jun 20, 2012  (pdf) Aerospace Design & Fabrication, Inc., B-278896.2; B-278896.3; B-278896.4; B-278896.5, May 4, 1998
ASRC Research & Technology Solutions, LLC, B-406164,B-406164.3, Feb 14, 2012  (pdf) ST Aerospace Engines Pte. Ltd., B-275725, Mar. 19, 1997 (pdf)
CMJR, LLC d/b/a Mokatron, B-405170, September 7, 2011  (pdf)  
DynCorp International, LLC, B-403065; B-403065.2, September 17, 2010  (pdf)  
L&N/MKB, Joint Venture, B-403032.3, December 16, 2010 (pdf)  
Camden Shipping Corporation, B-402743.2, November 5, 2010 (pdf)  
World Airways, Inc., B-402674, June 25, 2010  (pdf)  
Staff Tech, Inc., B-403035.2; B-403035.3, September 20, 2010  (pdf)  
Bilfinger Berger Government Services GmbH, B-402944, August 19, 2010 (pdf)  
Dixon Group, Inc.; Command Decisions Systems and Solutions, Inc., B-402118; B-402118.2; B-402118.3; B-402118.4; B-402118.5, January 15, 2010  (pdf)  
Advanced Environmental Solutions, Inc., B-401654, October 27, 2009  (pdf)  
Divakar Technologies, Inc., B-402026, December 2, 2009 (pdf)  
AMI-ACEPEX, Joint Venture, B-401560, September 30, 2009 (pdf)  
PlanetSpace, Inc., B-401016; B-401016.2, April 22, 2009  (pdf)  
Aegis Defence Services Limited, B-400093.4; B-400093.5, October 16, 2008 (pdf)  
Advant-EDGE Solutions, Inc., B-400367.2, November 12, 2008 (pdf)  
Ahntech-Korea Company, Ltd., B-400145.2, August 18, 2008.  (pdf)  
Lockheed Martin MS2 Tactical Systems, B-400135; B-400135.2, August 8, 2008 (pdf)  
McGoldrick Construction Services Corporation, B-310340.3; B-310340.4, May 16, 2008 (pdf)  
Daylight Tree Service & Equipment, LLC, B-310808, January 29, 2008 (pdf)  
Strategic e-Business Solutions, Inc., B-310210,November 8, 2007 (pdf)  
Synergetics, Inc., B-299904, September 14, 2007 (pdf)  
Data Management Services Joint Venture, B-299702; B-299702.2, July 24, 2007 (pdf)  
J. Womack Enterprises, Inc., B-299344, April 4, 2007 (pdf)  
Frontier Systems Integrators, LLC, B-298872.3, February 28, 2007 (pdf)  
Indtai Inc., B-298432.3, January 17, 2007 (pdf)  
Aerosol Monitoring & Analysis, Inc., B-296197, June 30, 2005 (pdf0  
Erica Lane Enterprises, Inc., B-295068, January 19, 2005 (pdf)  
The OMO Group, Inc., B-294328, October 19, 2004 (pdf)  
AIA-Todini-Lotos, B-294337, October 15, 2004 (pdf)  
Command Enterprises, Inc., B-293754, June 7, 2004 (pdf)  
Ridoc Enterprise, Inc., B-292962.4, July 6, 2004 (pdf)  
Consortium HSG Technischer Service GmbH and GeBe Gebäude- und, B-292699.6, June 24, 2004 (pdf)  
Family Entertainment Services, Inc., d/b/a/ IMC, B-291997.4, June 10, 2004) (pdf)  
JACO & MCC Joint Venture, LLP, B-293354.2, May 18, 2004 (pdf)  
Base Technologies, Inc., B-293061.2; B-293061.3, January 28, 2004 (pdf)  
The Paintworks, Inc., B-292982; B-292982.2, December 23, 2003 (pdf)  
Career Quest, Inc., B-292865; B-292865.2, December 10, 2003 (pdf)  
Delco Industrial Textile Corporation, B-292324, August 8, 2003  (pdf)  
Gentex Corporation--Western Operations, B-291793; B-291793.2; B-291793.3, March 25, 2003  (txt version)  
U.S. Textiles, Inc., B-289685.3, December 19, 2002 (pdf)
 
 
Wilson Beret Company, B-289685, April 9, 2002  (pdf)  
National City Bank of Indiana, B-287608.3, August 7, 2002  (pdf)  
Network Security Technologies, Inc., B-290741.2, November 13, 2002  (pdf)  
MVM, Inc., B-290726; B-290726.2; B-290727; B-290727.2, September 23, 2002   (pdf)  
Hot Shot Express, Inc. , B-290482, August 2, 2002  (pdf)  
Rolf Jensen & Associates, Inc., B-289475.2; B-289475.3, July 1, 2002  (pdf)  
Interstate General Government Contractors, Inc., B-290137.2, June 21, 2002  (pdf)  
Godwin Corporation, B-290291, June 17, 2002 (pdf)  
TyeCom, Inc., B-287321.3; B-287321.4, April 29, 2002  (pdf)  
MCS of Tampa, Inc., B-288271.5, February 8, 2002  
Al Hamra Kuwait Company, B-288970, December 26, 2001  
DRA Software Training, B-289128; B-289128.2, December 13, 2001  
Systems Management, Inc.; Qualimetrics, Inc., B-287032.5; B-287032.6, November 19, 2001  (Pdf version)  
Information Technology & Applications Corporation, B-288510; B-288510.2, November 7, 2001  (Pdf version)  
Lynwood Machine & Engineering, Inc., B-287652, August 2, 2001  
Strategic Resources, Inc., B-287398; B-287398.2, June 18, 2001  
General Atomics, B-287348; B-287348.2, June 11, 2001  
Oceaneering International, Inc., B-287325, June 5, 2001  
Urban-Meridian Joint Venture, B-287168; B-287168.2, May 7, 2001  
MCR Engineering Company, Inc., B-287164; B-287164.2, April 26, 2001  
Myers Investigative and Security Services, Inc., B-286971.2; B-286971.3, April 2, 2001  
Menendez-Donnell & Associates, B-286599, January 16, 2001  
Hernandez Engineering, Inc.; ASR International Corporation, B-286336; B-286336.2; B-286336.3; B-286336.4, January 2, 2001  
SWR Inc., B-286044.2; B-286044.3, November 1, 2000  
Neeser Construction, Inc./Allied Builders System,, B-285903, October 25, 2000  
SDS International, B-285822; B-285822.2, September 29, 2000  
North American Aerodynamics, Inc., B-285651, September 15, 2000  
Lynwood Machine & Engineering, Inc., B-285696, September 18, 2000  
DGR Associates, Inc., B-285428; B-285428.2, August 25, 2000  
Symtech Corporation, B-285358, August 21, 2000  
Airwork Limited-Vinnell Corporation (A Joint Venture), B-285247; B-285247.2, August 8, 2000  
Crown Support Services, Inc., B-284471, April 21, 2000  
AJT & Associates, Inc., B-284305; B-284305.2, March 27, 2000  
Universal Fabric Structures, Inc., B-284032, February 10, 2000  
BioGenesis Pacific, Inc., B-283738, December 14, 1999  
The Communities Group, B-283147, October 12, 1999  
Garco Construction, Inc.; Triton Marine Constructon Corporation, B-282231; B-282231.2, June 15, 1999  
Advanced Data Concepts, Inc., B-280967.8; B-280967.9, June 14, 1999  
NAHB Research Ctr., Inc., B-278876.2, May 4, 1998 (pdf)  

U. S. Court of Federal Claims - Key Excerpts

Plaintiff argues that SOCOM violated the FAR and the terms of the solicitation in deciding not to evaluate the past performance information submitted for two of its key personnel. Pl.’s Br. at 37–39; Pl.’s Reply at 17–20; see also AR at 1475. Res Rei quotes the solicitation’s past performance evaluation methodology as stating that the “evaluation considers the offeror’s demonstrated record of performance in providing services and products the same or similar to those spelled out in the SOW as either a Prime contractor or a subcontractor,” and notes that the experience of key personnel is not excluded. Pl.’s Br. at 38 (quoting AR at 1091) (emphasis supplied by plaintiff). Res Rei then contends that the FAR mandates consideration of key personnel experience, by providing: “The evaluation should take into account past performance information regarding predecessor companies, key personnel who have relevant experience, or subcontractors that will perform major or critical aspects of the requirement when such information is relevant to the instant acquisition.” Id. at 39 (quoting 48 C.F.R. § 15.305(a)(2)(iii)) (emphasis omitted).

In response, defendant notes that the solicitation instructions for past performance stated: “Contract efforts will be considered either relevant or not relevant. In order to be considered relevant, the effort must have been performed by the same division or corporate business unit that is proposing to perform under this requirement.” Def.’s Reply at 8 (quoting AR at 1086). The government also refers to an exchange in which an offeror questioned whether the Past Performance Questionnaire form, see AR at 777–80, which was “very much geared to a specific contract and not to personal past performance of an individual,” could be changed “so it fits a personal reference,” or should the offeror instead “submit a formal letter of reference?” AR at 813; see Def.’s Reply at 8. The agency responded, “[t]he Government is not looking for personal past performance of an individual.” AR at 813. Defendant maintains that the agency appropriately used its discretion not to evaluate the experience of the two individuals proposed by plaintiff, as their personal experience did not reflect an effort performed by Res Rei. See Def.’s Reply at 8–9.

The Court cannot agree with Res Rei’s argument that the FAR mandates the consideration of past performance information of key personnel. The provision states that the past performance evaluation should take this information into account, not that it “must” or “shall.” See 48 C.F.R. § 15.305(a)(2)(iii). Several decisions of our court have interpreted this provision as permissive, giving an agency discretion to decide whether to consider such information. See Plasan N. Am., Inc. v. United States, 109 Fed. Cl. 561, 573–74 (2013); Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 718 (2010); PlanetSpace Inc. v. United States, 92 Fed. Cl. 520, 539–40 (2010). In this case, that discretion was exercised by the agency when it drafted the solicitation, which limited relevant performance to the efforts of a particular “division or corporate business unit,” see AR at 1086, and employed a PPQ seeking information about a company, not an individual, see AR at 777–80.28 If there was any doubt as to the meaning of the past performance provisions, the agency’s interpretation was made plain by its answer to the question concerning personal past performance. See AR at 813.29 The decision not to consider the past performance of individuals was not contrary to the solicitation’s evaluation approach, but followed it, and cannot be considered arbitrary or unlawful.  (Res Rei Development, Inc. v. U. S. and St Michael's Inc. and Federal Acquisition Services Team, LLC., No. 15-1256C, May 17, 2016)  (pdf)


Given that procurement officials are usually “given great discretion in determining what references to review in evaluating past performance,” Seattle Sec. Servs., Inc. v. United States, 45 Fed. Cl. 560, 567 (2000), the SSA’s consideration of the experience of intervenor’s key personnel does not appear improper.  (SDS International, v. U.S., No 00-609C, March 5, 2001 )


Whether a given manager is sufficiently “key” to be considered “key personnel” is a determination on which neither the FAR nor the RFP provides guidance. Absent a violation of a law or regulation, the court may overturn the SSA’s determination that Mr. Davis can be considered “key personnel” only if that determination was arbitrary or capricious under the APA.  (SDS International, v. U.S., No 00-610C, February 21, 2001)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
Res Rei Development, Inc. v. U. S. and St Michael's Inc. and Federal Acquisition Services Team, LLC., No. 15-1256C, May 17, 2016  (pdf)  
SDS International, v. U.S., No 00-609C, March 5, 2001  (pdf)  
SDS International, v. U.S., No 00-610C, February 21, 2001  
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