New 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)

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)