The protester complained that the agency erred in considering a contract that had been terminated for convenience when evaluating past performance. GAO, however, found the agency reasonably considered the terminated contract. The contract had been terminated due to the protester’s inability to deliver on time or at the agreed upon price. The termination was thus directly related to the protester’s ability to perform. The protester also alleged that the agency had wrongly found one of the awadee’s proposals compliant. GAO agreed that the awardee’s proposal was non-compliant. But in light of the protester’s high price, GAO found that the protester had not been prejudiced by the error.
American Fuel Cell & Coated Fabrics Company, GAO B-420551, B-420551.2
Background
The Defense Logistics Agency (DLA) issued a solicitation seeking fuel bladder tanks for C-130 aircraft. The solicitation contemplated the award of multiple IDIQ contracts. Award would be made on a best-value basis considering past performance and price.
Three offerors, American Fuel Cell & Coated Fabrics Company (Amfule), Float & Fuel Cells, Inc. (FFC) and Meggitt, Inc. submitted proposals. DLA awarded contracts to FFC and Meggitt. The agency found that Amfuel had submitted the lowest-rated, highest-priced proposal. Amfuel protested.
Legal Analysis
Past Performance Evaluation
Amfuled argued that DLA had erred in assessing its proposal a limited confidence past performance rating. Amfuel contended that DLA had ignored corrective measures that it had taken to remedy delinquencies on past contracts, and that DLA had improperly considered a past contract that had been terminated for convenience.
GAO saw no error. Amfuel had failed to show a specific correlation between its corrective measures and past delinquencies. As to the termination for convenience, GAO noted that the basis for the termination was Amfeul’s ability to deliver fuel bladders on time or at the agreed upon price. Thus, the termination was directly related to Amfuel’s ability to perform the contract. DLA had not erred in considering the termination.
Evaluation of FFC
Amfuel argued that DLA should have rejected FFC’s proposal because FFC was not in compliance with DFARS 252.204-7019, which requires offerors to have a current NIST Special Publication 800–171 DoD assessment.
GAO agreed that FFC’s proposal had not adequately demonstrated the required compliance. But GAO found that Amfuel had not been prejudiced by the error. Amfuel’s price was so high GAO concluded that even if DLA had eliminated FFC from the competition, it was not apparent the agency would have awarded Amfuel a second IDIQ contract.
Amfuel is represented by Eric S. Crusius and Jeremy Burkhart of Holland & Knight LLP. The agency is represented by Ashley M. Kelly of the Defense Logistics Agency. GAO attorneys Sarah T. Zaffina and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
