SDVOSBLAW: Government Contract Law Firm - SDVOSB Law, Claims, Disputes, Protests

On April 16, 2018, in bid protest, Veteran National Transportation, LLC, B-415696.3, the GAO upheld the Department of Veterans Affairs’ evaluation of the protestor’s losing proposal. The contract called for door-to-door ambulatory, wheelchair and stretcher transportation services. Award was to be made on a best-value tradeoff basis, considering the following evaluation factors: technical capability, past performance and price. The protestor, Veteran National Transportation, LLC, challenged the VA’s evaluation of its technical capability and past performance.

With regard to past performance, the GAO set forth the following standard of legal review:

The evaluation of an offeror’s past performance, including the agency’s determination of the relevance of an offeror’s performance history and the weight to be assigned to a subcontractor’s past performance, is a matter of agency discretion, which we will not find improper unless it is inconsistent with the solicitation’s evaluation criteria. The evaluation of past performance, by its very nature, is subjective and we will not substitute our judgment for reasonably based evaluation ratings; an offeror’s disagreement with an agency’s evaluation judgments does not demonstrate that those judgments are unreasonable. [citations omitted]

Applying the above standard, the GAO upheld the VA’s past performance score of “limited confidence.”  In a past past performance questionnaire, a Contacting Officer indicated he would not award another contract to the protester because it “does not understand working with the federal government and the laws and regulations that go along with that.”  The Contracting Officer alleged that the protester had failed to pay subcontractors on time; failed to follow procedures injuring a 80 year old patient; and was fined by the DOL for failure to pay employees minimum wages under the Service Contract Act.  In that case, the Contracting Officer ultimately terminated the protester’s contract for default.  The GAO held that based on the totality of the circumstances a negative past performance score of “limited confidence” was warranted.

The protester also argued that the VA did not afford enough weight to the past performance of its subcontractor.  While the subcontractor had a satisfactory past performance history, the GAO held that the VA was under no obligation to give greater weight to the subcontractor’s past performance:

In addition, contrary to VNT’s suggestions otherwise, the agency was under no obligation to afford greater weight to the subcontractor’s performance record. In this respect, the significance of, and the weight to be assigned to, a subcontractor’s past performance is a matter of contracting agency discretion. See Diversified Tech. & Servs. of Va., Inc., B-412090.2, B-412090.3, Dec. 16, 2015, 2015 CPD ¶ 34 at 6-7. Given that VNT failed to disclose what percentage of the effort its proposed subcontractor was to perform, the agency’s consideration of VNT’s subcontractor’s performance record here is unobjectionable. 

There are two important lessons here.  First, a negative CPARS rating can haunt a contractor in a future procurement.  So, if a Contracting Officers unfairly rates you, consider filing a claim to challenge that.  Second, be careful when you choose your teaming partners.  Ask about their past performance, including CPARS ratings.

Posted in Protests - GAO

In People, Technology and Process, LLC, B-410898.7 (March 3, 2016), the GAO upheld the VA’s decision to excluded the protestor from the competitive range. This protest involved the VA’s Transformation Twenty-One Total Technology Next Generation procurement, or T4NG. This IDIQ task order contract is valued at $22.5 billion over the base and option periods.

Award is to be made on a best-value basis considering price and the following five non-price evaluation factors: (1) technical; (2) past performance; (3) veterans involvement; (4) veterans employment; and (5) small business participation commitment. The technical factor was further divided into two subfactors, sample tasks and management. The sample task subfactor was designed to “test” offerors’ “expertise and innovative capabilities.”

The protestor described its technical approach to the sample tasks, but did not describe how it would manage them.  Instead, the protestor described its management capabilities under the separate management subfactor.  This made perfect sense to the protestor based on its reading of the RFP.

Yet, during the evaluation the VA rated the protestor’s proposal unacceptable because one of its sample tasks did not include how it would manage the work.   The protestor argued that it did not do so because “the RFP provided no indication that the VA would consider issues related to project management when evaluating the sample task responses.”  As such, the protestor argued that the VA did not follow the stated evaluation criteria.

The GAO disagreed with the protestor.  The GAO held that the RFP’s evaluation criteria for sample tasks was broad enough to include consideration of management, even though there was another evaluation subfactor specifically dedicated to management.  In this regard, the GAO noted that the RFP asked offerors to demonstrate their “methods and approach to meeting the sample task requirements,” which the GAO held was “not focused exclusively on offerors’ technical approaches to performing the sample tasks,” but rather “all of the aspects of an offeror’s approach that were relevant to performing the tasks” including management.

This decision was a close call.  In the future, when in doubt, include all of the elements necessary to perform a sample task even though you may have addressed it elsewhere in your technical proposal.

Posted in Protests - GAO