This shows the value of understanding government contracting requirements and preferences.

From our friend Steven Koprince at www.smallgovcon.com:

A contractor was awarded an “Excellent” past performance score despite submitting only three past performance references, not the five past performance references required by the solicitation.

Although one might think that a contractor would be penalized for failing to satisfy such a requirement, the GAO held that the procuring agency properly gave the contractor in question a high past performance score, based on the three submitted references and past performance information obtained from other sources.

 

The GAO’s bid protest decision in Burke Consortium, Inc., B-407273.3, B-407273.5 (Feb. 7, 2013), involved a Department of Homeland Security solicitation for information technology services.  The solicitation stated that award would be made on a “best value” basis, considering corporate experience, past performance, program management, and staffing.

With respect to past performance, the solicitation instructed offerors to provide past performance information for five recent, relevant contracts, task orders or subcontracts.  Each such reference was to include a completed questionnaire.  The solicitation informed offerors that they were responsible for ensuring that their references completed the questionnaires.  In addition to requiring questionnaires, the solicitation stated that DHS could contact references and obtain past performance information from other sources.

In evaluating proposals, DHS noted that Gnostech, Inc. had only submitted three past performance references, not the required five.  However, all three references provided strong endorsements of Gnostech’s past performance. DHS also reviewed 18 entries for Gnostech under the Past Performance Information Retrieval System, or PPIRS.  These references ranged from satisfactory to exceptional.  After reviewing this information, Gnostech was assigned an “Excellent” past performance score.

DHS made award to eight contractors, including Gnostech.  Burke Consortium, Inc. was not awarded a contract.  Like Gnostech, Burke received an “Excellent” past performance score, and identical adjectival ratings under the corporate experience, program management, and staffing approach factors.  However, Burke’s total evaluated price was considerably higher than Gnostech’s.

Burke filed a GAO bid protest, alleging in part that DHS had erred by assigning a high past performance score to Gnostech, despite Gnostech’s failure to supply five past performance references.  Burke also complained that the agency had apparently assigned similarly high ratings to other awardees without receiving five past performance references from them, either.

The GAO noted that the evaluation of 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 GAO pointed out that the solicitation called for offerors to submit five past performance references, but also allowed the agency to examine other sources to obtain past performance information.

In this case, the GAO found, “the agency’s evaluation of past performance, including Gnostech’s, was based . . . not only on questionnaires received, but on PPIRS evaluations and offerors’ descriptions of their relevant contract, task order, or subcontract experience.”  By insisting that the agency downgrade Gnostech and others for failing to provide five references, “Burke essentially seeks a mathematical or mechanical consideration of the number of weaknesses assigned against the offerors.  However, our Office has repeatedly rejected such arguments.”  The GAO denied Burke’s bid protest.

I’m not quite sure how I feel about the GAO’s decision in Burke Consortium.  On the one hand, I see the GAO’s point that when an agency has compiled past performance information from a variety of sources, it should not be forced to downgrade an offeror for failing to provide sufficient information from a particular source.  On the other hand, I am sympathetic to Burke’s position that an offeror should not receive a high past performance score when it has failed to comply with a solicitation requirement.

No matter which side you come down on, I should be clear on one point: nothing in Burke Consortium required DHS to minimize the impact of Gnostech’s missing references.  Had the DHS downgraded Gnostech for failing to provide the required references, the GAO may well have found the agency’s actions to be acceptable and within its discretion.  In other words, contractors should not assume that Burke Consortium gives them free license to ignore solicitation requirements for a particular number of past performance references.

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