Your Proposal Says What It Says: The GAO Does Not Engage in Revisionist History

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Disappointed offerors sometimes attempt to challenge contract awards by arguing that the agency did not properly take into account a particular aspect of their proposals. As the recent Government Accountability Office (GAO) decision in Red River Science & Technology, LLC, B-417798.2 (October 24, 2019) makes clear, however, protesters need to make sure that their proposal supports their argument in the context of the solicitation. The GAO will likely not reward a challenge that attempts to “rewrite” the proposal to support the asserted protest grounds.

The procurement involved the issuance of an order by the Department of the Army, Army Materiel Command for maintenance, supply, and transportation logistics support services at Fort Jackson, South Carolina. The underlying solicitation stated that the Army would make award based on three factors: (1) technical acceptability; (2) past performance; and (3) cost/price. Under the solicitation, the Army was to first evaluate proposals for technical acceptability on a pass/fail basis, then evaluate the three lowest-priced offerors under the past performance factor. The past performance evaluation was to entail “a qualitative assessment of the past performance of recent and relevant contracts performed by the offeror, and by any subcontractors proposed to perform 20 percent or more of the total proposed cost/price.” The Army would then assign the three lowest-priced, technically acceptable offerors a past performance confidence rating, the highest of which was “substantial confidence,” and identify the lowest-priced firm with a past performance rating of substantial confidence. If none of the technically acceptable offerors received a substantial confidence rating, the solicitation required the Army to conduct a best-value tradeoff based on all the factors.

In evaluating past performance, the agency would consider both examples of recent and relevant past contract efforts submitted by offerors and information it obtained about the offerors from other sources. “Recent contracts” were those performed within three years of the solicitation’s closing date. “Relevant contracts” were those reflecting similar experience, magnitude and complexity. In order to demonstrate similar experience, a past performance example had to reflect the performance of work in one of three functional areas required by the solicitation–maintenance, supply, or transportation. For magnitude and complexity, the solicitation established minimum average annual dollar value thresholds for past performance examples to be considered relevant. The solicitation also provided that the past performance record of offerors that proposed to use subcontractors would “be assessed in its totality to determine the Offeror’s past performance rating” and explained that the Army evaluators would take into account “the specific functional areas the offeror and its proposed subcontractors have performed, the areas each is proposed to perform, and the overall percentage of participation proposed for the offeror and any subcontractors.”

The Army received seven timely proposals, including those of Red River and the awardee, Bowhead Operations & Maintenance Solutions, LLC, which were both among the three proposals evaluated as technically acceptable. Of the three, Red River had the lowest price.

In its proposal, Red River made clear that it would perform the transportation functional area and a portion of the supply functional area itself, totaling approximately 54 percent of its proposed price. The remaining 46% of the price was attributed to its subcontractor, The Logistics Company (TLC), which was to perform all of the work under the maintenance functional area and a portion of the supply functional area. In other words, Red River proposed only its own personnel to perform work for the transportation functional area. But during evaluation the Army found that only half of its eight past performance examples involved transportation work, and none of those four met the solicitation’s minimum dollar thresholds to be considered similar in magnitude and complexity. In contrast, the Army found that TLC had very positive, recent and relevant past performance in all three functional areas, including transportation.

Despite TLC’s demonstrated favorable performance in all three functional areas, Red River’s lack of relevant past performance in the transportation functional area created “some uncertainty about its ability to perform the Ft. Jackson effort.” In this regard, the Army concluded that TLC’s ability to perform the transportation functional area had “no impact” on the evaluation because Red River did not propose TLC to perform that work but instead proposed itself, with TLC performing work in the other functional areas. Because of the uncertainty about Red River’s handling the transportation functional area, the evaluators ultimately gave its proposal a past performance rating of satisfactory confidence.

Even though its price was higher, Bowhead was awarded the order because it had the lowest-price offer receiving a past performance rating of substantial confidence. Following a debriefing, Red River filed the subject protest, challenging the Army’s evaluation of its past performance as only acceptable, arguing that the agency failed to reasonably consider the past performance of its proposed subcontractor as required by the terms of the solicitation.

More particularly, Red River argued that the agency should have considered TLC’s demonstrated relevant past performance in the transportation area even though Red River’s proposal did not identify TLC as performing the transportation work. It pointed to the repeated references “throughout its proposal” to TLC as its “teammate” and maintained that it “could have received TLC’s assistance in the transportation functional area.” Red River also asserted that the solicitation required the Army to base its past performance rating on the combined performance record of itself and TLC without regard to the areas of work for which TLC was proposed.

The GAO rejected both arguments.

First, with respect to the notion that the Army should have given Red River credit for TLC’s past performance because they were teammates and TLC could have assisted in the transportation functional area, the GAO held that the agency reasonably considered only Red River’s transportation experience because Red River’s proposal (organization chart, staffing plan, etc.) specified that Red River would self-perform the transportation work itself, and gave no indication that TLC would provide assistance of any kind. In other words, there was no reason for the Army to have considered TLC’s past performance in that area and the satisfactory confidence rating was reasonable.

Red River’s contention that the solicitation required the Army to base its past performance rating on the combined performance record of itself and TLC without regard to the areas of work for which TLC was proposed fared no better. Red River relied on the solicitation language stating that “[i]f an Offeror proposes the use of Subcontractors the Offeror’s past performance record will be assessed in its totality to determine the Offeror’s past performance rating.” In response, the GAO pointed out that immediately following that sentence the solicitation established that the Army may consider the specific functional areas previously performed by an offeror and its subcontractor(s), the specific functional areas an offeror and its subcontractor(s) were proposed to perform, and the offeror and its subcontractor(s)’ overall percentage of participation for the requirement. Reading the solicitation in its entirety and in a manner that gives effect to all its provisions, as the GAO does in such cases, the GAO found nothing objectionable about the agency’s consideration of the anticipated division of work between Red River and TLC in its past performance evaluation.

While the facts and arguments in this matter may have presented a much closer case (we’ll likely never know), the decision casts Red River as a protester that got tripped up by a proposal that did not say what the proposal needed to say to support its protest arguments. In order to avoid similar problems, offerors should carefully review solicitation requirements, conduct an honest self-evaluation of their (and their team’s) strengths and weaknesses, and, to the extent possible tailor their proposals to address any weaknesses or gaps they find. That way, even if the agency makes what you consider to be a bad award decision, you’ll have more ammunition to fight it.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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