Walden first challenges the
agency’s assessment that Walden has experienced
degradation in service since beginning the performance of
CSO contracts in three other judicial circuits. The
protester asserts that both the agency’s critique of
Walden’s performance, as well as the agency’s reliance on
that critique, was unreasonable. Specifically, the
protester argues that, because the RFP advised that
offerors would be given an opportunity to address adverse
past performance information to which an offeror had not
previously had an opportunity to respond, the agency’s
failure to give it an opportunity to respond to the
agency’s conclusions regarding its alleged degradation in
service was unreasonable and failed to comply with the
plain terms of the RFP.
As relevant here, the solicitation explained that past
performance would be evaluated in accordance with Federal
Acquisition Regulation (FAR) § 15.306(a)(2), and based on
the “currency and relevance of the information, source of
the information, context of the data, and general trends
in contractor’s performance.” RFP at M-5, L‑9. The RFP
defined “relevant present/past performance” as “effort
involving a similar scope and similar magnitude of effort
and complexity as this solicitation requires,” and
“recent” performance as “performed during the last three
years.” Id. at M-5. In addition, the solicitation provided
that the government would consider information registered
in PPIRS [Past Performance Information Retrieval System]
and FAPIIS [Federal Awardee Performance and Integrity
Information System], and might consider information
provided by the program office, contracting officer, and
end users. Id. Significantly, the RFP also provided that
“[o]fferors will be given an opportunity to address
adverse past performance information to which the offeror
has not previously had an opportunity to respond.” Id. at
L-10.
Walden’s proposal included four past performance
references--two for its incumbent USMS CSO contracts for
the 4th and 6th Circuits, one for a contract with the
Centers for Disease Control and Prevention (CDC), and one
for a contract with the State of Tennessee. AR, Tab 14,
Walden Past Performance Proposal, at 2-3, 22‑23, 27-28.
Walden’s proposal also included CPARS [Contractor
Performance Assessment Reporting System] records for the
three federal contracts referenced. Id. at 3-16 (Fiscal
Year (FY) 2015 CPAR for USMS CSO contract, 4th Circuit),
at 8‑11(FY 2014 CPAR for USMS CSO contract, 4th Circuit),
at 2-16 (FY 2013 CPAR for USMS CSO contract, 4th Circuit),
at 18-21 (FY 2015 CPAR for USMS CSO contract, 6th
Circuit), at 24-26 (2014 CPAR for CDC contract).
The agency found all four of the contracts submitted by
Walden to be recent (performed within the past three
years), as well as relevant in terms of scope (armed and
unarmed security officers) and relevant in magnitude of
effort and complexity (approximately $25 million or
greater). Id. at 13‑14. Walden’s performance was rated
exceptional in all areas on both the CDC and the State of
Tennessee contracts, and the CPARS for the 4th and 6th
Circuits reflected exceptional to very good ratings in the
areas of quality, schedule, and management. AR, Tab 14,
Walden Past Performance Proposal, at 3-26. Although Walden
received satisfactory ratings in the three remaining
areas, the evaluators explained that a “satisfactory
assessment” is “generally the highest assessment a
contractor is able to obtain in CPARS/PPIRS” for quality,
schedule, cost, and utilization of small business “due to
the CSO Program’s use of a design/detail statement of work
and contract limitation on subcontracting.” AR, Tab 16,
Past Performance Evaluation, at 25. [4]
In addition, the agency considered information from its
“CSO contract files” regarding Walden’s performance on
three more recent USMS CSO contracts for the 1st, 5th, and
8th Circuits. Based on the information from the agency’s
contract files, the evaluators concluded that Walden’s
“capacity has shown difficulty in maintaining performance
while scaling up services,” and “has required
comparatively heavier oversight with five (5) Circuits
than they required when they held one (1) to two (2)
Circuits.” AR, Tab 36, Supp. Past Performance Evaluation,
at 13-14. In particular, the evaluators noted that,
“[s]ince the acquisition of these three additional
circuits[,] the USMS program offices have observed some
difficulty from Walden in some areas of program
administration, most especially in processing applicant
packages and medical qualification information on
deadline.” AR, Tab 16, Past Performance Evaluation, at 14;
Tab 36, Supp. Past Performance Evaluation, at 14.
The evaluators concluded that, “[o]verall, the records of
Walden’s performance for the CSO Program provide an above
average expectation that the offeror will successfully
perform the required effort.” AR, Tab 36, Supp. Past
Performance Evaluation, at 14. Specifically, the
evaluators explained that “[t]he records show that Walden
has successfully performed the required efforts for the
last three years,” but “this record of performance has
demonstrated areas of weakness and risk by trending down
in maintaining administrative performance with increased
contract loads.” Id. As a result, the evaluators stated
that “[t]he above considerations prevent [the agency] from
forming a high expectation that the offeror will
successfully perform the required effort.” Id.
The protester argues that, because the agency identified,
and relied upon, in its evaluation, adverse past
performance information regarding Walden, which Walden had
not previously been provided an opportunity to address,
the agency was required by the terms of the solicitation
to provide Walden with an opportunity to address the
adverse past performance information. The protester
contends that, by failing to provide Walden with this
opportunity, the agency failed to comply with the ground
rules for the competition as set forth in the RFP, which
prejudiced Walden.
The agency acknowledges that Walden has never been
provided an opportunity to respond to the information from
the agency’s contract file regarding Walden’s performance
on the 1st, 5th, and 8th Circuits that the agency
considered during its past performance evaluation. In
addition, the agency acknowledges that the RFP, includes a
provision providing that offerors “will be given an
opportunity to address adverse past performance
information to which the offeror has not previously had an
opportunity to respond.” RFP at L-10. The agency argues,
however, that despite this clear statement in the
solicitation, it was not obligated to provide Walden with
this opportunity. We find the agency’s arguments in this
regard unavailing.
For example, the agency argues that it was not required to
comply with the RFP language because the solicitation’s
inclusion of FAR § 15.306 “takes precedence over [the]
conflicting language in the RFP instructions.” Agency
Email, Mar. 13, 2017, at 1. The protester disagrees that
the RFP language conflicts with the FAR provision.
As relevant here, FAR § 15.306(a)(2) provides that, “[i]f
award will be made without discussions, offerors may be
given the opportunity to clarify certain aspects of
proposals,” such as “adverse information to which the
offeror has not previously had an opportunity to respond.”
FAR § 15.306(a)(2) (emphasis added). This FAR provision is
permissive, thereby granting discretion to the agency to
decide whether to provide an offeror with an opportunity
to clarify adverse past performance information. The RFP
language, on the other hand, clearly provided that
offerors “will be given” an opportunity to respond to such
adverse past performance information. Given that
clarifications are not legally required when the agency
awards without discussions, and that the agency awarded
without discussions here, the RFP language clearly placed
an obligation on the agency not required by the FAR
provision.
Next, the agency argues that it was not required to
provide Walden with an opportunity to respond to the
alleged adverse past performance information because, in
the agency’s opinion, the information at issue did not
constitute “adverse past performance information.” In
support of this argument, the agency asserts that the past
performance information at issue was not “adverse” because
it did not result in the protester receiving “an
unfavorable or less than satisfactory” past performance
rating. Agency Email, Mar. 13, 2017, at 1. We disagree.
As noted above, based on information in the agency’s
contract files regarding Walden’s performance on USMS CSO
contracts for the 1st, 5th, and 8th Circuits, the
evaluators concluded that Walden’s capacity had “shown
difficulty in maintaining performance while scaling up
services,” and that Walden had “required comparatively
heavier oversight with five (5) Circuits than they
required when they held one (1) to two (2) Circuits.” AR,
Tab 36, Supp. Past Performance Evaluation, at 13-14.
Further, the evaluators noted that since the acquisition
of the three additional circuits, the USMS program offices
had “observed some difficulty from Walden in some areas of
program administration, most especially in processing
applicant packages and medical qualification information
on deadline.” Id. Although the evaluators concluded that,
“[o]verall, the records of Walden’s performance for the
CSO Program provide an above average expectation that the
offeror will successfully perform the required effort,”
they found that Walden’s “record of performance has
demonstrated areas of weakness and risk by trending down
in maintaining administrative performance with increased
contract loads,” which the agency specifically concluded,
“prevent[ed] [the agency] from forming a high expectation
that the offeror will successfully perform the required
effort.” Id. The record also reflects that the agency
relied on these same performance concerns in determining
that Walden’s past performance was not a discriminator.
AR, Tab 38, Past Performance Comparison at 1-3.
Although the agency contends that the information
regarding Walden’s performance was not “adverse” because
it did not result in Walden receiving an unfavorable or
less than satisfactory rating, the record reflects that
the agency did not assign a rating with regard to the
information, which concerned Walden’s performance on
contracts for the 1st, 5th, and 8th Circuits. Rather, the
record reflects that the evaluators concluded that the
information demonstrated “difficulty in maintaining
performance,” “difficulty in program administration,” and
“areas of weakness and risk by trending down in
maintaining administrative performance with increased
contract loads.” AR, Tab 36, Supp. Past Performance
Evaluation at 14. In addition, the record reflects that
the information had an adverse impact on Walden’s
otherwise positive past performance, and prevented the
agency from “forming a high expectation that the offeror
will successfully perform the required effort.” Id. The
record also reflects that the evaluators relied on the
information as a discriminator in comparing Walden’s past
performance with Paragon’s. In light of these
considerations, we conclude that the information was
sufficiently adverse that the agency should have provided
Walden with an opportunity to respond.
In sum, we find that the solicitation required that
offerors be given the opportunity to address adverse past
performance information to which they had not previously
had an opportunity to respond, and that the agency relied
on adverse past performance information to which Walden
had not been given the opportunity to respond in its
evaluation. Given that according to the agency,
consideration of this information prevented it from
forming a high expectation that Walden would successfully
perform the required effort, we further find that there is
a reasonable possibility that Walden suffered competitive
prejudice as a result of the agency’s failure to give it
the opportunity to respond. DRS C3 Sys., LLC, B-310825,
B-310825.2, Feb. 26, 2008, 2008 CPD ¶ 103 at 28; see
Statistica, Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir.
1996) (competitive prejudice is a necessary element of any
viable bid protest). (We note in this connection that a
high expectation of successful performance would have
resulted in a past performance rating of exceptional,
which exceeds Paragon’s past performance rating of very
good). As a result, we sustain Walden’s protest on this
issue. (Walden Security;
Akal Security, Inc. B-413523.6, B-413523.7,
B-413523.8, B-413523.9: Mar 22, 2017)
Pre-Competitive Range Communications
Finally, PPDG argues that the agency was required by FAR §
15.306(b) to conduct exchanges regarding the protester’s adverse
past performance record. This argument is without merit. By its
terms FAR § 15.306(b)(1)(i), requires the agency to conduct
“communications” with offerors “whose past performance
information is the determining factor preventing them from being
placed within the competitive range.” Here, as detailed above,
PPDG’s elimination from the competitive range was due to low
ratings under both the past performance and the technical
factors. Under these circumstances, the agency was not required
to provide communications to permit PPDG to address its adverse
past performance. See The Cmty. P’ship LLC, B-286844, Feb. 13,
2001, 2001 CPD ¶ 38 at 13.
The protest is denied. (Professional
Performance Development Group, Inc., B-408925: Dec 31, 2013)
(pdf)
Arcus first
argues that the agency failed to provide it with meaningful
discussions regarding a “marginal” past performance rating that
it received for one of its past performance references--the Air
Education and Training Command (AETC) Group II housing
privatization project, which encompassed family housing at six
Air Force bases. The protester asserts that section 4.15.1.5 of
the solicitation required the agency to provide Arcus with an
opportunity to respond to the negative past performance rating.
Arcus claims that the “marginal” rating assigned to Pinnacle
Hunt Communities for its performance on the AETC Group II
housing project resulted in Arcus receiving a past performance
rating of “confidence” rather than high confidence, yet during
its discussions with Arcus the Air Force did not mention any
past performance concerns regarding the AETC Group II housing
project. Protest at 15.
In evaluating Arcus’ past performance, the Air Force reviewed a
“Project Owner Performance Overall Assessment Summary” for the
AETC Group II prepared by the AFCEE. This document is a summary
of the past performance information of Pinnacle Hunt Communities
on the AETC Group II Project completed by Air Force personnel
familiar with the project and the performance for the 4th
Quarter 2009. The report detailed the various past performance
problems on the AETC Group II Project and described the overall
performance assessment of Hunt as follows:
Overall, the PO’s performance was within the satisfactory and
marginal range. While the PO’s financial and developmental
performance was satisfactory, customer satisfaction and
property management drove the overall marginal rating.
AR, Tab 9, AFCEE Project Owner Performance Overall
Assessment/Summary AETC II Privatized Housing, LLC (Pinnacle
Hunt Communities), at 1. The report further stated:
Information provided in this report may be used by Air Force
Acquisition Support Team’s . . . to evaluate the Pinnacle Hunt
Communities past performance as part of the evaluation process
for another Air Force project proposal.
Id.
On or about September 24, 2010, AFCEE sent a letter to Hunt
Development Group, with a copy of this report. The letter
included the same admonition that this report could be used as
part of the evaluation process for other Air Force project
proposals and advised that Hunt was being provided with the
report “so you are aware of the information” that may be shared.
AR, Tab 9, Letter from AFCEE to Hunt.
Hunt responded to AFCEE’s past performance assessment in a
letter dated October 28, 2010, in which it stated that “we felt
compelled to provide brief responses to some of the concerns
raised.” AR, Tab 9, Pinnacle Hunt Letter to AFCEE (Oct. 28,
2010), at 1. In this five-page letter, Hunt addressed the
marginal ratings that it received for its performance on the
AETC Group II project in the critical areas of operations,
customer satisfaction, and property management. Hunt closed its
letter by listing, “a number of initiatives to enhance the level
of customer service throughout the AETC II portfolio.” Id. at 5.
In its proposal here, Arcus referred to its performance of the
AETC Group II project as follows:
The AETC II project has had some significant problems which
Hunt has overcome. Issues resolved were that of the timeliness
of modifications and problems controlling project costs. The
primary sources of funds available to the project and the
desires of AETC Command and installation leadership challenge
of the AETC Group II project was the disparity between sources
of funds available to the project and the desires of AETC
Command and installation leadership.
AR, Tab 7, Arcus Proposal, Vol. III, Past Performance, at 14.
Thus, the record shows that Arcus’ affiliate, Hunt, was provided
the negative past performance report on the AETC II project,
that Hunt provided detailed responses to the adverse past
performance, and that Arcus addressed the adverse past
performance found on the AETC II project in its proposal. Having
previously provided Hunt/Arcus the opportunity to respond to the
adverse performance on the AETC II project, the agency was not
required to mention the marginal rating associated with this
project during discussions. In this regard, the RFP only
required, “[a]ny adverse past performance information the
Offeror has not had a prior opportunity to address will be
submitted to the Offeror for its comments, rebutting statement,
or additional information.” RFP § 4.15.1.5.
While Arcus claims that FAR § 15.306(d)(3) requires discussions
regarding “adverse past performance information to which the
offeror has not yet had an opportunity to respond,” this
procurement was not subject to the FAR. Where the FAR does not
apply, we review the actions taken by an agency to determine
whether they were reasonable. Armed Forces Hospitality, LLC,
B-298978.2, B-298978.3, Oct. 1, 2009, 2009 CPD ¶ 192 at 9
(privatization procurement). Here, we find the agency acted
reasonably in not providing Arcus with another opportunity
during discussions to address the adverse past performance on
the AETC II project. (Arcus
Properties, LLC, B-406189, Mar 7, 2012) (pdf)
Rod Robertson
next focuses on the agency's past performance evaluation of the
contract that it performed with the U.S. Marshal's Service--a
contract for which it received an overall unsatisfactory rating.
Rod Robertson argues that the agency's evaluation of its past
performance in this instance constituted "adverse information,"
which the protester should have received an opportunity to
address. However, where, as here, discussions are not conducted
under an acquisition, an agency is not required to communicate
with offerors regarding questions about adverse past
performance, unless there is a clear reason to question the
validity of the past performance information. Universal Fidelity
Corp., B-294797.2, Feb. 7, 2005, 2005 CPD para. 88 at 6;
contrast Daun-Ray Casuals, Inc., B-255217.3; B‑255217.4, July 6,
1994, 94-2 CPD para. 42 (discussions were conducted, but the
protester was not given an opportunity to address adverse past
performance information); see also Federal Acquisition
Regulation sect. 15.306(d)(3) (where discussions are conducted,
an agency must discuss "adverse past performance information to
which the offeror has not yet had an opportunity to respond.")
(Rod Robertson Enterprises, Inc.,
B-404476, January 31, 2011) (pdf)
LMSI does not
deny that, as is evident from the facts recited above, the Air
Force advised the firm of the agency’s concerns with its
performance on the VH-71 contract. Rather, LMSI asserts that it
thereafter was misled by the Air Force into believing that the
agency was satisfied with its response to the agency’s
evaluation notice and, as a result, was deprived of a meaningful
opportunity to further respond to the perceived VH-71
performance problems. Specifically, LMSI notes that, in the
agency’s subsequent interim (pre-FPR) evaluation briefings in
March, July, and September, LMSI was advised that its proposal
had received a satisfactory confidence rating for past
performance. It is clear from the record, however, that not only
should LMSI have been on notice that the agency’s concerns with
its VH-71 performance had not been fully resolved by LMSI’s
explanation, but that, in any case, LMSI had a further
opportunity to respond to the adverse past performance
information that furnished the basis for the protester’s final
past performance rating of little confidence. In this regard, in
each of the three pre-FPR briefings, the Air Force noted that
there had been “VH‑71 difficulties.” LMSI CSAR-X Initial
Evaluation Briefing at 43; LMSI CSAR-X Interim Evaluation Brief
at 58; LMSI CSAR-X Final Proposal Revision Brief at 55. In
addition, in the March briefing, the agency noted that LMSI’s
[DELETED] and, in the July and September briefings, referred to
its “[c]oncerns with [LMSI’s] VH-71 contract performance.” LMSI
CSAR-X Initial Evaluation Briefing at 43; LMSI CSAR-X Interim
Evaluation Brief at 55; LMSI CSAR-X Final Proposal Revision
Brief at 52. Moreover, the SSA noted in his source selection
decision (as had the agency evaluators in their recommendation
to the SSA) that LMSI’s final past performance rating of little
confidence was based on a negative October 5 Contractor
Performance Assessment Report (CPAR) for the VH-71 contract
which, although it was first furnished to the Air Force by the
Navy on October 12 (after the September 18 closing date for
receipt of FPRs), had been previously furnished to LMSI for
comment on or about July 10, and commented on by LMSI on October
2. SSD at 7; CSAR-X Final Evaluation Brief, Oct. 21, 2006, at
114, 116-17. As discussed in more detail below, the Navy CPAR
rated LMSI’s VH-71 performance [DELETED]. Given the Air Force’s
continuing expressions of concern over LMSI’s VH-71 performance,
and the very unfavorable Navy CPAR that was furnished to LMSI in
July, LMSI clearly was on notice of the need to further account
for its VH-71 performance. We note, moreover, that LMSI in fact
included an explanation of its VH-71 performance in its response
to the CPAR--the agency considered this response in its final
evaluation--and that LMSI could have provided an explanation in
its FPR response as well, had it chosen to do so. We thus find
no basis for concluding that LMSI was deprived of an opportunity
to respond to the adverse past performance information on which
the little confidence evaluation rating was based. (Sikorsky
Aircraft Company; Lockheed Martin Systems, B-299145.4, March
29, 2007) (pdf)
Regarding communications concerning adverse past performance
information to which the vendor has not previously had an
opportunity to respond, we think that for the exercise of
discretion to be reasonable, the agency must give the offeror an
opportunity to respond where there clearly is a reason to
question the validity of the past performance information, for
example, where there are obvious inconsistencies between a
reference's narrative comments and the actual ratings the
reference gives the offeror. In the absence of such a clear
basis to question the past performance information, we think
that, short of acting in bad faith, the agency reasonably may
decide not to ask for clarifications. NMS Mgmt., Inc., supra.
Applying this standard here, we conclude that the agency
reasonably exercised its discretion in deciding not to
communicate with GD-OTS regarding the delays under the LRIP
contract, since the information was based on first-hand
knowledge of Navy personnel who evaluated the protester's past
performance; thus, there was no reason for the Navy to have
questioned the validity of its own conclusions. While the
protester clearly disagrees with the Navy's conclusions about
the LRIP delays and may have wished to respond to the
information, that fact does not render the agency's decision to
make award without holding discussions or clarifications
unreasonable, given the permissive language of FAR Section
15.306(a)(2). Id. The protester's argument that offerors were
treated unequally is similarly unavailing. According to GD-OTS,
when the Navy raised its concerns with Alliant regarding its
subcontracting plan, and afforded Alliant the opportunity to
revise its plan as directed by the agency, the Navy effectively
held discussions with Alliant, and thereby triggered a
requirement for the agency to hold discussions with GD-OTS as
well. (General Dynamics-Ordnance &
Tactical Systems, B-295987; B-295987.2, May 20, 2005) (pdf)
As a preliminary matter, to the extent that the protester
contends that it was improper for the agency to consider the
adverse past performance information included in its RYG 1
records without providing the protester with a further
opportunity prior to award to explain the information, Federal
Acquisition Regulation (FAR) 15.306(a)(2), which addresses
clarifications and award without discussions, states in relevant
part that where award will be made without conducting
discussions, "offerors may be given the opportunity to clarify
certain aspects of proposals ( e.g. , the relevance of an
offeror's past performance information and adverse past
performance information to which the offeror has not previously
had an opportunity to respond) or to resolve minor or clerical
errors." As the agency points out, and as discussed further
below, Hanley has had ample opportunity to comment on the
adverse past performance information in its RYG records. Given
the permissive language of FAR 15.306(a)(2), and the fact that
Hanley has been given ample opportunity to comment upon the past
performance information, the fact that Hanley now wishes to
provide further comments on the information in its RYG records
does not give rise to a requirement for the agency to provide an
opportunity to do so. See TLT Constr. Corp. , B-286226, Nov. 7,
2000, 2000 CPD 179 at 7-8; A.G. Cullen Constr., Inc. ,
B-284049.2, Feb. 22, 2000, 2000 CPD 45 at 5-6.
———————
1 The Red/Yellow/Green (RYG)
Program is a Navy/Air Force automated system that classifies
the performance risk associated with a particular contractor
by assigning a color rating to the vendor's quality and
delivery performance history; a green rating signifies low
risk, yellow signifies moderate risk, red signifies high risk,
and a neutral rating applies to contractors lacking recent or
relevant past performance information. All offerors were
advised that the past performance evaluations would be based
upon the offerors' quality and delivery records reported under
the RYG Program.
(Hanley
Industries, Inc., B-295318, February 2, 2005) (pdf)
GTA additionally argues that it was not given an adequate
opportunity to address the negative TACOM contract past
performance information during discussions. The record shows,
however, that GTA was explicitly told during discussions that
the agency had received negative information regarding the
performance of its 210,000 gallon fuel bladder contract.
Specifically, GTA was told that 210k gallon fuel bladder: The
respondent indicated you were experiencing some problems with
the First Article. AR, Tab 10B, GTA EN G-PR-2, at 1. GTA was
also provided a summary that stated performed first article test
3 times and rejected all three. AR, Tab 10B, GTA Briefing
Slides, at 2. When conducting discussions, an agency must advise
offerors of deficiencies, significant weaknesses, and adverse
past performance information to which the offeror has not yet
had an opportunity to respond, and must afford offerors an
opportunity to revise their proposals to fully satisfy the
agencys requirements. Federal Acquisition Regulation
15.306(d)(3). Clearly, based on the discussion here, GTA was
aware that the agency had received negative past performance
information concerning the TACOM contract and that the
information received by the agency was characterized as a FAT
failure. GTA, in fact, responded with a discussion of its
performance on the TACOM contract, explaining difficulties in
performing the FAT requirements and its efforts to correct the
various problems. AR, Tab 10B, GTA EN Response G-PR-2, at 1-2.
Based on this record, we find that the agency conducted
meaningful discussions. (Cooley/Engineered
Membranes; GTA Containers, Inc., B-294896.2; B-294896.3;
B-294896.4, January 21, 2005) (pdf)
FRS
also objects to the TEB's reliance on adverse past performance
information from another source. As noted above, the TEB
learned of certain past performance information adverse to FRS,
and considered the information credible because it was a
statement against the interest of its author--another offeror
who had been FRS's partner in a predecessor company. An
agency is not limited to the "four corners" of an
offeror's proposal in the evaluation of proposals, and may use
other information known by its own evaluators. Arctic
Slope World Servs., Inc., B-284481, B-284481.2, Apr. 27,
2000, 2000 CPD ¶ 75 at 7. While the Forest Service could
have given FRS the opportunity to respond to this adverse past
performance information, see FAR § 15.306(a)(2), we
see no basis to conclude that it was unreasonable for the agency
not to do so. See NMS Mgmt., Inc., B-286335,
Nov. 24, 2000, 2000 CPD ¶ 197 at 3 (in the absence of a clear
basis to question adverse past performance information, agency
reasonably may decide not to ask for clarification). In
any event, FRS's focus on the agency's reliance on this
information ignores the basic problem with its proposal.
Quite simply, it was the responsibility of FRS to demonstrate in
its proposal past performance relevant to the instant
procurement; it was not the agency's obligation during the
evaluation process to fill in the gaps. Since FRS had the
burden of submitting an adequately written proposal, yet failed
to do so, we have no basis to question the reasonableness of the
agency's evaluation. G&M Indus., B-290354, July
17, 2002, 2002 CPD ¶ 125 at 4. (Forest
Regeneration Services LLC, B-290998, October 30, 2002)
(pdf)
With regard specifically to
clarifications concerning adverse past performance information
to which the offeror has not previously had an opportunity to
respond, we think that, for the exercise of discretion to be
reasonable, the contracting officer must give the offeror an
opportunity to respond where there clearly is a reason to
question the validity of the past performance information, for
example, where there are obvious inconsistencies between a
reference's narrative comments and the actual ratings the
reference gives the offeror. In the absence of such a clear
basis to question the past performance information, we think
that, short of acting in bad faith, the contracting officer
reasonably may decide not to ask for clarifications.
Applying this standard here, we think that the contracting
officer reasonably exercised his discretion in deciding not to
communicate with Cullen regarding the adverse past performance
information received from one of Cullen's references. (A.
G. Cullen Construction, Inc., B-284049.2, February 22, 2000)
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