If You're Looking for Protest Grounds, Look Early and Often for Agency Deviations from the Solicitation
January 18, 2018
While an agency’s failure to follow the terms of the solicitation stands as one of several basics grounds for a successful protest, such deviations are not always easy to spot. Often they do not become evident until the protest is well under way. The decision in the recent Government Accountability Office (GAO) case of East Coast Utility Contractors, Ltd., B-415493, B-415493.2 (January 16, 2018) reminds us, however, that agency evaluation missteps can sometimes be apparent--or strongly suggested--from the award notice or debriefing information.
The subject procurement involved a Defense Logistic Agency (DLA) request for proposals (RFP) contemplating the award of a 50-year contract for utility services resulting from the privatization of natural gas distribution, water distribution, and wastewater collection utility systems at Wright-Patterson Air Force Base. Offerors were permitted to submit proposals for any or all of the utility services. The RFP provided for a best value award to the offeror presenting the best value to the government, considering technical capability, past performance, risk, socioeconomic plan, and price. Among other things, the solicitation required offerors to provide past performance information for at least two but not more than six of their largest customers involving work of similar complexity and type sought in the RFP for each system for which the offeror submitted a proposal.
As pertinent here, the RFP stated that an offeror without a record of relevant past performance or for whom sufficient information on past performance was not available would be evaluated neither favorably nor unfavorably. But it also explained that ?a different rating may be achieved if the offeror proposes management personnel who have a successful record of performance on relevant, recent contracts or if a proposed subcontractor who will be performing a significant portion of the work has a successful performance history on relevant and recent contracts.”
DLA received offers from six offerors, including East Coast Utility Contractors, Ltd. (ECUC) and American Water Operations and Maintenance, Inc. (AW). ECUC submitted six past performance data sheets with its final proposal revision--three for itself and three for its vice president of operations (VP-Ops). Significantly, the past performance projects submitted for the VP-Ops were each for his performance as utility manager responsible for managing 50-year utility privatization contracts. After finding that ECUC’s three submitted past performance projects of its own were not relevant for a variety of reasons, DLA concluded that three VP-Ops past performance projects met the recency requirement but did not meet the relevancy requirement, reasoning that the experience of the VP-Ops did not demonstrate ECUC’s capability to own, operate, or maintain a water distribution or wastewater collection system. As a result, the evaluators assigned ECUC an unknown confidence rating for past performance.
Upon learning of the award to AW, ECUC protested to the GAO, arguing among other things that DLA unreasonably assigned it a neutral past performance rating given the strength of its VP-Ops’ experience. More particularly, ECUC pointed out that the solicitation permitted it to use the past performance of its VP-Ops to demonstrate a successful record of past performance.
DLA responded that the neutral past performance rating was reasonable in part because only one recent and relevant reference was provided for ECUC’s VP-Ops. According to DLA, the VP-Ops was the only ECUC manager proposed who had experience working in ?Utility Privatized sector at various bases” and that ECUC failed to identify any corporate experience performing operations and maintenance work on a water and wastewater utility system. DLA also explained that it had responded to a request for clarification by stating that it had determined that one manager’s past performance was not sufficient to earn a different rating.
The GAO made short work of the agency’s arguments, noting that despite the RFP’s clear statement that offerors could establish their past performance by proposing management personnel with a successful record of past performance on relevant, recent contracts, nothing in the contemporaneous record shows that DLA considered the past performance of ECUC’s VP-Ops. Instead, the GAO found the record to show that DLA concluded that the past performance of the VP-Ops was not relevant because it was the past performance of an individual, rather than the company as a whole. On this record, the GAO sustained the protest, finding that DLA failed to consider the past performance of ECUC’s management personnel, as required by the solicitation.
While the decision is unclear as to when ECUC first identified the agency’s deviation from the RFP, some indication of the error was presumably obvious from the award notice and/or debriefing information provided to ECUC. Given ECUC’s reliance on past performance references for its VP-Ops, a neutral rating for that factor raised an early red flag suggesting that DLA had not followed the RFP terms. Of course, not every RFP violation is this clear from the outset. But disappointed offerors need to look for agency departures from the solicitation early as well as often--and follow up on any red flags that appear.
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